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

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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Monday, October 31, 2016

A.M.C. VS. P.B. A-4730-14T3


A.M.C. VS. P.B.
          A-4730-14T3
The Family Part found defendant physically assaulted his wife twice over a three-week period. Applying the two-prong analysis in Silver v. Silver, 387 N.J. Super. 112, 12527 (2006), the judge found an FRO was not necessary to protect plaintiff from future acts or threats of violence. We hold the Family Part failed to adequately consider the inherently violent nature of the predicate acts. Under these circumstances, the need to issue an FRO was "self-evident." Silver, supra, 387 N.J. Super. at 127.
Defendant, a Newark Police Officer, was not served with the TRO. Notwithstanding defendant’s failure to object, N.J.S.A. 2C:25-28l, N.J.S.A. 2C:25-28n, and the Domestic Violence Procedures Manual makes the Judiciary responsible to serve defendant with the TRO. We hold the trial court had an obligation to determine what caused this systemic failure. We further hold the trial court erred as a matter of public policy when it considered the Judiciary's failure to carry out this legal responsibility as a factor in favor of denying plaintiff's application for an FRO. 

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL. A-3802-12T4

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL.
          A-3802-12T4
Plaintiff condemned a property comprised of parcels in three municipalities. The trial court's just compensation award was based on the "highest and best use" of placing apartment buildings on the parcels in two municipalities and placing a driveway on the lots in the third municipality, whose zoning did not allow apartment buildings. The Appellate Division held that use of those lots for a private driveway servicing adjacent lots was itself a "use" and would require a use variance from the third municipality. Offering to dedicate the driveway as a public street would similarly require acceptance by the third municipality. Thus, the condemnee was required to show a reasonable probability the third municipality would have granted acceptance or a use variance, even if the driveway's design complied with the Residential Site Improvement Standards.
The escrow for environmental cleanup of a condemned property should be based on the remediation needed to achieve the highest and best use of the property used to calculate the
page1image19744 page1image19904

condemnation award, rather than the condemnor's intended or actual use, with any unspent funds returned to the condemnee. 

PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN WINTERMUTE VS. ASHER ADELMAN, d/b/a eBossWatch.com A-5214-14T4


PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN
          WINTERMUTE VS. ASHER ADELMAN, d/b/a eBossWatch.com
          A-5214-14T4
In August 2010, defendant published an article on his website reporting on a complaint filed against plaintiffs by an employee containing allegations of gender discrimination and a hostile workplace environment. Over a year later, counsel for plaintiffs threatened defendant with a defamation lawsuit if the article was not removed. In response, defendant made minor changes to the article and re-posted it in December 2011. Although there was slightly different wording in the two articles and the title was changed, the allegedly defamatory content and substance was the same, and to some extent lessened.
The legislative purpose of favoring a short statute of limitations would be defeated if immaterial changes to an Internet post, that is viewed on a far wider scale and for an indefinite period of time than is traditional mass media, were to result in a retriggering of the statute of limitations on each occasion. Therefore, the statute of limitations will only be triggered if a modification to an Internet post materially and substantially alters the content and substance of the article.
The modifications made by defendant in the second article were intended to diminish the defamatory sting of the previously reported allegations. If a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.
The single publication rule is applicable, and the complaint filed in June 2012 is barred as untimely, as the statute of limitations commenced with the posting of the original article in August 2010. The grant of summary judgment to defendant is affirmed.
The dismissal of defendant's counterclaim for retaliation is also affirmed. Defendant did not have standing under the NJLAD to assert a claim of retaliation as he had no relationship with the aggrieved employee nor had he aided or encouraged her in asserting her rights; he was a publisher who claimed to have objectively reported on an employment litigation. 

Sunday, October 23, 2016

A.M.C. VS. P.B. A-4730-14T3


A.M.C. VS. P.B.
          A-4730-14T3
The Family Part found defendant physically assaulted his wife twice over a three-week period. Applying the two-prong analysis in Silver v. Silver, 387 N.J. Super. 112, 12527 (2006), the judge found an FRO was not necessary to protect plaintiff from future acts or threats of violence. We hold the Family Part failed to adequately consider the inherently violent nature of the predicate acts. Under these circumstances, the need to issue an FRO was "self-evident." Silver, supra, 387 N.J. Super. at 127.
Defendant, a Newark Police Officer, was not served with the TRO. Notwithstanding defendant’s failure to object, N.J.S.A. 2C:25-28l, N.J.S.A. 2C:25-28n, and the Domestic Violence Procedures Manual makes the Judiciary responsible to serve defendant with the TRO. We hold the trial court had an obligation to determine what caused this systemic failure. We further hold the trial court erred as a matter of public policy when it considered the Judiciary's failure to carry out this legal responsibility as a factor in favor of denying plaintiff's application for an FRO. 

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL. A-3802-12T4

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL.
          A-3802-12T4
Plaintiff condemned a property comprised of parcels in three municipalities. The trial court's just compensation award was based on the "highest and best use" of placing apartment buildings on the parcels in two municipalities and placing a driveway on the lots in the third municipality, whose zoning did not allow apartment buildings. The Appellate Division held that use of those lots for a private driveway servicing adjacent lots was itself a "use" and would require a use variance from the third municipality. Offering to dedicate the driveway as a public street would similarly require acceptance by the third municipality. Thus, the condemnee was required to show a reasonable probability the third municipality would have granted acceptance or a use variance, even if the driveway's design complied with the Residential Site Improvement Standards.
The escrow for environmental cleanup of a condemned property should be based on the remediation needed to achieve the highest and best use of the property used to calculate the
page1image19744 page1image19904

condemnation award, rather than the condemnor's intended or actual use, with any unspent funds returned to the condemnee. 

PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN WINTERMUTE VS. ASHER ADELMAN, d/b/a eBossWatch.com A-5214-14T4


PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN
          WINTERMUTE VS. ASHER ADELMAN, d/b/a eBossWatch.com
          A-5214-14T4
In August 2010, defendant published an article on his website reporting on a complaint filed against plaintiffs by an employee containing allegations of gender discrimination and a hostile workplace environment. Over a year later, counsel for plaintiffs threatened defendant with a defamation lawsuit if the article was not removed. In response, defendant made minor changes to the article and re-posted it in December 2011. Although there was slightly different wording in the two articles and the title was changed, the allegedly defamatory content and substance was the same, and to some extent lessened.
The legislative purpose of favoring a short statute of limitations would be defeated if immaterial changes to an Internet post, that is viewed on a far wider scale and for an indefinite period of time than is traditional mass media, were to result in a retriggering of the statute of limitations on each occasion. Therefore, the statute of limitations will only be triggered if a modification to an Internet post materially and substantially alters the content and substance of the article.
The modifications made by defendant in the second article were intended to diminish the defamatory sting of the previously reported allegations. If a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.
The single publication rule is applicable, and the complaint filed in June 2012 is barred as untimely, as the statute of limitations commenced with the posting of the original article in August 2010. The grant of summary judgment to defendant is affirmed.
The dismissal of defendant's counterclaim for retaliation is also affirmed. Defendant did not have standing under the NJLAD to assert a claim of retaliation as he had no relationship with the aggrieved employee nor had he aided or encouraged her in asserting her rights; he was a publisher who claimed to have objectively reported on an employment litigation. 

Sunday, October 9, 2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.D., JR. AND J.G. IN THE MATTER OF J.D., III A-3716-14T4


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY
          VS. J.D., JR. AND J.G. IN THE MATTER OF J.D., III
          A-3716-14T4
Defendant J.D., Jr. appeals the trial court's finding that he abused or neglected his ten-year-old son, in violation of N.J.S.A. 9:6-8.21(c). No witnesses testified at the fact- finding hearing. The parties agreed to forego the presentation of witnesses and to have the trial court decide the disputed matter based solely on redacted copies of police reports of the incident and investigation summaries prepared by the Division of Child Protection and Permanency.
In this appeal, the court rejects defendant's belated challenge to the admission of the documents as barred by the invited error doctrine. The court also applies the principle that hearsay is generally evidential if no objection is made. Here, the trial judge gave the appropriate weight to the objectionable hearsay, and the record supports the judge's finding that defendant abused or neglected his son by leaving him unattended in a vehicle in the late evening while defendant entered a bar, became intoxicated, and attempted to flee the police.
The court nonetheless expresses concern over the dangers inherent in adjudicating contested trials based solely on documentary evidence. The procedure employed here, that is, submitting redacted documents in lieu of testimonial evidence, does not lend itself to the resolution of disputed factual issues or credibility determinations. Thus, even when the parties acquiesce to a trial "on the papers," the court cautions that fact-finding hearings that bear upon the welfare of children must still adhere to fundamental rules of evidence and be conducted with the formality and decorum attendant to any other adjudicative proceeding. 

MIDLAND FUNDING LLC A/P/O WEBBANK VS. ROBERTA BORDEAUX A-0850-14T3

MIDLAND FUNDING LLC A/P/O WEBBANK VS. ROBERTA BORDEAUX
          A-0850-14T3
Plaintiff filed a civil action in small claims court to collect the full amount of a consumer debt's alleged outstanding balance. The issue in this appeal concerns the enforceability of an arbitration clause that plaintiff claims was part of the original creditor's consumer credit application form. Plaintiff's sole evidence of the arbitration agreement's
page1image19312 page1image19472 page1image19632

existence consists of two single-spaced, photocopied pages that do not bear defendant's signature or any other indicia of her assent. The trial court enforced the arbitration clause, relying only on a certification in which a "Legal Specialist" employed by plaintiff attested that the two pages were in the records of plaintiff's predecessor in interest.
We reverse. Relying on Atalese v. U.S. Legal Serv. Grp., L.P., 219 N.J. 430, 442 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 2804, 192 L. Ed. 2d 847 (2015), we hold that plaintiff failed to prove that defendant knowingly waived her constitutional right to adjudicate this dispute in a court of law.