New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htmKenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Sunday, June 26, 2016

Mortgage Grader, Inc. v. Ward & Olivo, LLP (A-53-14;

Mortgage Grader, Inc. v. Ward & Olivo, LLP (A-53-14; 075310) 

The requirement in Rule 1:21-1C(a)(3) that law firms organized as LLPs maintain malpractice insurance does not extend to the firm’s windup period when the law firm has ceased performing legal services, and does not require purchase of tail insurance. In addition, the violation of Rule 1:21-1C(a)(3) does not result in automatic conversion of a law firm organized as an LLP into a GP. As a result, Mortgage Grader had no vicarious liability claim against Ward. 

Tonique Griffin v. City of East Orange (A-32-14; 074937)

Tonique Griffin v. City of East Orange (A-32-14; 
074937) 

The trial court erred when it barred the testimony of a witness who claimed that her superiors instructed her to lie to the person investigating sexual harassment claims because the testimony was relevant to plaintiffs’ claims for compensatory and punitive damages arising from hostile work environment sexual harassment, satisfied an exception to the hearsay rule, and its relevance was not substantially outweighed by the risk of undue prejudice. 

Robert Smith v. Millville Rescue Squad (A-19-14; 074685)

 Robert Smith v. Millville Rescue Squad (A-19-14; 
074685) 

The protection that the LAD affords against discrimination based on marital status is not limited to the state of being single or married. The LAD also prohibits discrimination against a prospective or current employee based on their status as separated, in the process of divorce, or divorced. The evidence that plaintiff presented at trial suggests that defendant’s animus toward divorcing persons, based on stereotypical views, affected the decision to terminate plaintiff’s employment, and therefore created an inference of discrimination due to defendant’s marital status. The trial court erred in finding that plaintiff failed to establish a prima facie case of marital-status discrimination in employment under the LAD. 

CAPITAL HEALTH SYSTEM, INC., ET AL. VS. HORIZON HEALTHCARE SERVICES, INC./ SAINT PETER'S UNIVERSITY HOSPITAL VS. HORIZON HEALTHCARE SERVICES, INC. A-2913-15T2/A-2929-15T2

 CAPITAL HEALTH SYSTEM, INC., ET AL. VS. HORIZON HEALTHCARE SERVICES, INC./ SAINT PETER'S UNIVERSITY HOSPITAL VS. HORIZON HEALTHCARE 
SERVICES, INC. 
A-2913-15T2/A-2929-15T2(CONSOLIDATED) 
These two back-to-back appeals are related to our June 7 opinion in Capital Health Sys., Inc. v. N.J. Dep't of Banking & Ins., ___ N.J. Super. ___ (App. Div. 2016), where we affirmed the Department of Banking and Insurance's decision approving Horizon Blue Cross Blue Shield of New Jersey's (Horizon's) application to establish the OMNIA Health Alliance (OMNIA) network. Several of the hospitals in that case brought actions in the Chancery Division against Horizon alleging that the insurer breached its contracts with them by, among other things, not including them as Tier 1 hospitals in the new OMNIA network. The trial courts granted the hospitals' requests for discovery of a consultant's report Horizon used to select and tier the hospitals for the network, contracts between Horizon and the OMNIA hospitals, and other proprietary business information concerning the formation of the network. 

In our decision, we considered the relevancy of this material to the hospitals' claims, and then balanced it against Horizon's need to maintain the confidentiality of material which, if disclosed, could give plaintiffs a competitive advantage over other hospitals in each of their service areas and over the insurer in future negotiations concerning rates. As a result of this balancing, we ordered specific redactions to be made in the materials sought by the hospitals. 

ANDREA DAVIDOVICH VS. ISRAEL ICE SKATING FEDERATION, ET AL. A-0283-15T1

 ANDREA DAVIDOVICH VS. ISRAEL ICE SKATING FEDERATION, ET AL. 
A-0283-15T1 
Plaintiff is a teenage ice skater of dual United States-Israeli citizenship. She filed a complaint in the Law Division seeking to break free from the Israeli ice skating federation she represented in the pairs event at the 2014 Winter Olympics. Plaintiff, whose Israeli skating partner severed their relationship shortly after the Olympics, now wishes to compete internationally for the United States. 
Under the rules of the International Skating Union ("ISU"), plaintiff cannot skate for the United States without obtaining a 
release from the Israeli federation. The federation has declined to grant her such an unconditional release, contending that doing so will detrimentally encourage other skaters in whom it has invested substantial resources to switch their affiliations to other countries. 
The trial court granted partial summary judgment to plaintiff and ordered the federation to issue a release over its objection. We granted leave to appeal to defendants. 

We reverse the trial court's summary judgment ruling and vacate the court-ordered release because of (1) the strong general policies disfavoring judicial interference into the internal affairs of sporting organizations, (2) the need for possible non-judicial remedies to be exhausted with the ISU, and (3) the presence of genuine disputed issues of material fact and business justification. However, we affirm the trial court's denial of summary judgment to both sides on a separate count of the complaint alleging defendants' tortious interference with plaintiff's prospective economic opportunities. 

LISA R. WORTHY VS. KENNEDY HEALTH SYSTEM, ET AL. A-2698-14T1

LISA R. WORTHY VS. KENNEDY HEALTH SYSTEM, ET AL. 
A-2698-14T1 
In this medical negligence matter, we examine whether plaintiff met the requirements of Rule 4:26-4, the fictitious party pleading rule, to save her claims from being dismissed as untimely. Plaintiff consulted counsel less than two months prior to the expiration of the statute of limitations. A complaint was filed in time, in which the illegible signatures and professional designations of unidentified defendants, as taken from hospital treatment records, were used in lieu of typed names. The signatures were placed in the caption and included in the complaint's specific allegations of negligence. Counsel's post-complaint efforts to identify all defendants included correspondence, telephone calls, motions for enforcement, special interrogatories, and depositions. The hospital did not identify those professionals for approximately fifteen months after the complaint was filed. The judge dismissed the complaint, finding identification efforts prior to its filing were insufficient. We reversed. Not only must the court consider all facts and circumstances, but also must determine whether defendant suffered prejudice from any delay, which resulted from the hospital's lapses, not plaintiff's. 
We also reviewed facts supporting causation regarding another defendant, who argued despite his alleged failure to 

diagnose and treat plaintiff's condition, she would not have experienced a better outcome. Concluding the judge failed to apply the proper legal standard, we reverse. 

BRICK TOWNSHIP PBA LOCAL 230 AND MICHAEL SPALLINA VS. TOWNSHIP OF BRICK A-1979-14T3

BRICK TOWNSHIP PBA LOCAL 230 AND MICHAEL SPALLINA VS. TOWNSHIP OF BRICK 
A-1979-14T3 
The judge concluded that Michael Spallina, who retired as a police officer on accidental disability, was required by N.J.S.A. 40A:10-21.1, L. 2011, c. 78, § 42, effective June 28, 2011 (Chapter 78) to contribute to the cost of his health insurance provided as a benefit along with disability retirement payments. 

We held that Chapter 78 does not require ordinary or accidental disability retirees to make premium payments for health insurance benefits. 

RACHELE LOUISE CASTELLO VS. ALEXANDER M. WOHLER, M.D. A-0337-14T3

RACHELE LOUISE CASTELLO VS. ALEXANDER M. WOHLER, M.D. 
A-0337-14T3 
We held, in medical negligence cases, where a plaintiff's counsel timely serves an affidavit of merit (AOM) and reasonably relies on the AOM and expert's curriculum vitae, which erroneously reflects that the witness is actively practicing medicine, and, through no fault of the plaintiff's counsel, the error is first discovered after the expiration of the 120-day deadline imposed under the AOM statute, N.J.S.A. 2A:53A-26 to 
-29, exceptional circumstances exist requiring the judge to allow a plaintiff sufficient time to retain a different expert witness who is qualified under the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, issue a new AOM, and serve a corresponding expert report. If warranted, the judge may include other 

procedures or requests for relief related to the extension of discovery and service of a new AOM and expert report. 

Sunday, June 19, 2016

CHRISTINE AVELINO-CATABRAN VS. JOSEPH A. CATABRAN A-4973-13T4


 CHRISTINE AVELINO-CATABRAN VS. JOSEPH A. CATABRAN 
A-4973-13T4 
In this post-judgment dissolution matter, we hold that, absent changed circumstances, where parents' matrimonial settlement agreement clearly provides that they will share their children's college costs equally, a court need not apply the factors set forth in Newburgh v Arrigo, 88 N.J. 529, 545 (1982), to determine whether a parent should contribute to a child's college costs and the extent of the contribution. In addition, where a child is required to seek financial aid to help reduce 

the costs associated with college, that obligation does not include re-paying a Federal Direct PLUS Loan (PLUS Loan) secured by a parent to satisfy the parent's obligation under the agreement. 

IN THE MATTER OF THE ESTATE OF BYUNG-TAE OH, DECEASED A-4562-13T1

IN THE MATTER OF THE ESTATE OF BYUNG-TAE OH, DECEASED 
A-4562-13T1 

In this probate matter, the court affirmed a summary judgment that determined a $900,000 transfer from a now-deceased intestate Korean citizen to his son's New Jersey limited liability company was an investment and not a gift. The court rejected the son's claim to a presumption that the money was a gift because it was transferred to the company, not decedent's son; without the presumption, the son could not sustain his burden of proving a gift by clear, cogent and persuasive evidence. The court also rejected the argument — raised for the first time on appeal — that the court lacked subject matter jurisdiction; N.J.S.A. 3B:10-7 authorizes ancillary jurisdiction over New Jersey property possessed by a nonresident intestate at the time of death, and it was no impediment that the exercise of that jurisdiction was dependent on the dispute's resolution. Lastly, the court rejected the argument that Korean law should have been applied; that argument was not raised in the trial court and, even on appeal, the son never cited a Korean authority, let alone one in conflict with New Jersey law. 

IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED A-1197-14T2

IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED 
A-1197-14T2 
The terms of a promissory note entered into on June 4, 2007 as a settlement between the parties required an initial payment and four installment payments to be made at specific times 
thereafter. Although the promisor remitted $37,000 towards the $800,000 note over eighteen months, he failed to pay the initial sum or make the installment payments in full. 
On June 2, 2014, the promisee moved to enforce the settlement agreement and enter judgment. The trial court concluded that New Jersey's six-year statute of limitations was applicable (contrary to Pennsylvania's four-year statute based on a choice-of-law analysis not a subject of this appeal) and applied the installment contract approach to determine the accrual date of the claim. 

As there was no repudiation or total breach of the promissory note, the judge correctly applied the installment method. Under this approach, a new statute of limitations begins to run against each installment when it becomes due. The promisee is entitled to all payments which became due on and after June 3, 2008. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.S. AND A.L., SR. I/M/O THE GUARDIANSHIP OF A.L., JR., AND A.K.L. A-4905-14T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.S. AND A.L., SR. I/M/O THE GUARDIANSHIP OF A.L., JR., AND A.K.L. 
A-4905-14T2 

A biological mother succeeds in her appeal of the trial court's denial of her request to testify after the close of evidence. She did not appear for her termination of parental rights trial, but came to court seeking to testify on the day the judge was prepared to render his decision. A parent facing the termination of parental rights is entitled to every reasonable opportunity to produce evidence. If a parent seeks to reopen the record to testify after the close of evidence, the trial court is constitutionally obligated to grant that request as long as it does not interfere with the children's essential and overriding interest in stability and permanency. 

Sergio Rodriguez v. Raymours Furniture (A-27-14


 Sergio Rodriguez v. Raymours Furniture (A-27-14; 074603) 

A private agreement that frustrates the LAD’s public-purpose imperative by shortening the two-year limitations period for private LAD claims cannot be enforced. 

Annemarie Morgan v. Sanford Brown Institute (A-31-1


 Annemarie Morgan v. Sanford Brown Institute (A-31-14; 075074) 

The arbitration provision and purported delegation clause in the enrollment agreement fail to comply with the requirements of First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995), and Atalese v. U.S. Legal Servs. Grp., 219 N.J. 430 (2014), cert. denied, 135 S. Ct. 2804 (2015). They also fail to satisfy the elements necessary for the formation of a contract. Consequently, whether the parties agreed to arbitrate their dispute is an issue for determination by the court. The Court holds that the arbitration and delegation provisions of the agreement are unenforceable. 

Richard W. Berg v. Hon. Christopher J. Christie (A-71/72-14


 Richard W. Berg v. Hon. Christopher J. Christie 
(A-71/72-14; 074612) 

To construe a statute as creating a contractual right, the Legislature’s intent to limit the subsequent exercise of legislative power must be clearly and unequivocally expressed concerning both the creation of a contract as well as the terms of the contractual obligation. In this instance, proof of unequivocal intent to create a non-forfeitable right to yet-unreceived COLAs is lacking. The Legislature retained its inherent sovereign right to act in its best judgment of the public interest and to pass legislation suspending further COLAs. 

Torres v. Pabon (A-116-13;

Torres v. Pabon (A-116-13; 074307) 
The trial court’s five erroneous determinations, affecting both the issue of liability and the determination of damages, gave rise to cumulative error warranting a new trial. 

Cathleen Quinn v. David J. Quinn (A-5-14;

Cathleen Quinn v. David J. Quinn (A-5-14; 074411) 
An agreement to terminate alimony upon cohabitation, entered by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion, is enforceable. The trial court was required to apply the remedy of termination, as fashioned by the parties. 

In the Matter of Frank J. Cozzarelli (D-151-13

In the Matter of Frank J. Cozzarelli 
(D-151-13; 074742) 

There is clear and convincing evidence the respondent knowingly misappropriated client funds, and that his mental illness did not cause him to suffer a loss of competency, comprehension or will that excused his misconduct when it occurred. Respondent is not entitled to mitigation and shall be disbarred. 

John J. Robertelli v. New Jersey Office of Attorney Ethics (A-62

John J. Robertelli v. New Jersey Office of Attorney Ethics (A-62-14; 075584) 
Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.