NEW JERSEY LAWYER

DAILY BRIEFING      01/31/2005


News Briefs

$1.3 MILLION SETTLEMENT FOR INJURED WORKER
A lawsuit by Gregg Hunziker, 50, who developed Parkinson’s-like symptoms and other injuries allegedly from exposure to heavy metals and other toxins he encountered while employed as a maintenance repair carpenter for the Passaic Valley Water Commission, has settled for $1.3 million. The complaint by the now-disabled worker alleged that although aware of the potential harmful effects of the exposures, the commission “knowingly and deliberately” subjected Hunziker to them. Settlement was reached prior to the start of trial before Passaic County Judge Thomas F. Brogan. Craig Kozan of Lincoln Park was the plaintiffs’ attorney in Hunziker v. Passaic Valley Water Commission. The commission was represented by David M. Welt of Clifton. 1-28-05

TAPED CONFESSION ADMITTED IN FREEHOLD ARSON CASE
Over defense objections, a Monmouth County judge is admitting as evidence the videotaped confession of a defendant in a fatal arson case. Superior Court Judge Ira E. Kreizman denied a defense motion to suppress the statement of Tomango Sims, videotaped by investigators from the Monmouth County Prosecutor’s Office the day after the fire at the Freehold Elks Lodge that killed the caretaker. In the tape, Sims said he started the fire because the lodge wouldn’t give his sister a refund for a rental, and that he didn’t mean to hurt anyone. He since recanted the confession, saying he didn’t set the fire and that his confession was coerced. Kreizman denied defense attorney Robert Eisler’s motion and will admit the tape during a trial scheduled for June. As taping of confessions is gradually becoming standard practice in the state, the New Jersey Supreme Court and Attorney General Peter C. Harvey are considering expanding that process to the entire interrogation. Advocates on both the defense and prosecution sides say such taping would eliminate doubts about how the confession was derived. Some law enforcement officials, however, are concerned about revealing interrogation techniques. 1-28-05

JUDGE UPHOLDS $2.8 MILLION HARASSMENT AWARD
A Union County judge has denied the appeal of lawyers for Essex County officials who wanted her to re-examine the jury award in her court. Union County Judge Karen M. Cassidy refused to intervene in the $2.8 million award, which included $1 million in punitive damages in the case against Essex County brought by former sheriff’s officer Karen Caggiano who alleged she was harassed on the job because she is a lesbian. Newark attorney Rosemary Alito, who represented Essex County, said she anticipated Cassidy’s ruling and plans to appeal. Neil M. Mullin of Montclair represented Caggiano. 1-28-05

NEW TRANSFER FORM FOR BANKRUPTCY COURTS
To ease compliance with procedures, the U.S. Bankruptcy Court has developed a new form, the Director’s Procedural Form 210, Notice of Transfer of Claim Other Than for Security. It’s intended for use by a creditor that has filed a proof of claim, sells or otherwise transfers its claim to another entity other than for security. Rule 3001(e)(2) requires the transferee to file evidence of the transfer and further requires the clerk to notify the transferor of the filing of the evidence of transfer. The form may be used as both the notice required by the rule and as evidence of the transfer. The new form, together with instructions, is on njb.uscourts/gov. 1-28-05

LATEST CLASS-ACTION ADVERTISING TARGET — ALCOHOL
A California couple whose daughter was killed by an 18-year-old drunken driver are the lead plaintiffs in a class-action suit against Anheuser-Busch and Miller Brewing. Theirs is one of five pending nationwide targeting the marketing practices of the alcohol industry. Lynne and Reed Goodwin and their counterparts in Ohio, North Carolina, Colorado and Washington claim that brewers and distillers — like cigarette makers — appeal directly to teen-agers in their advertising and in promoting “gateway” drinks like Smirnoff Ice, Skyy Blue and Mike’s Hard Lemonade. The plaintiffs want such advertising stopped. The companies say they deliberately avoid media that cater to the under-21 crowd and they participate in anti-underage-drinking campaigns. 1-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 28, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 28, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 31, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, JANUARY 28, 2005

NOT APPROVED FOR PUBLICATION
DISCOVERY
PANOS v. BOROUGH OF SEASIDE HEIGHTS
Appellate Division, A-6456-03T2, January 28, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17561

Law Division order denying the defendant police officer’s motion for a protective order to bar the plaintiffs from asking certain deposition questions affirmed but modified to protect the defendant’s rights against self-incrimination; the plaintiffs brought an action for assault, false arrest, and false imprisonment against the municipality, its police department, and one of the arresting officers, among others; when the plaintiffs noticed the arresting officer for depositions, his attorney informed them that the officer was the subject of an Internal Affairs investigation and that he was entitled to assert privilege and object to questions about the investigation; contrary to the officer’s arguments on appeal, N.J.S.A. 2A:84A-27, N.J.S.A. 40A:14-181, and the Attorney General’s Guidelines for Internal Affairs Policy and Procedure do not prohibit him from answering questions, although Rule 4:14-3(c) allows his attorney to instruct him not to answer questions that might incriminate him.

PARENT AND CHILD
DEVLIN v. CARPENTER
Appellate Division, A-2750-03T5, January 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17562

Appeal from a Chancery Division order for a plenary hearing to determine whether the paternal uncle of an infant should have visitation rights dismissed as moot; both parents died one day before the infant’s second birthday, and legal custody was granted to the infant’s maternal uncle; before the appeal was filed, the maternal uncle filed for adoption, which was preliminarily approved; when the adoption complaint was filed, the status of any resolution in the visitation action changed from dispositive to advisory, and the action changed from a dispute between uncles who appeared to be on equal footing to a dispute between a putative adoptive parent and an uncle; although the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, requires a showing that visitation would avoid harm to the child, and an adoptive parent has the same status as a biological parent, the Statute purports to protect only the rights of grandparents and siblings.

HUSBAND AND WIFE
KOZAK v. KOZAK
Appellate Division, A-748-03T5, January 28, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17563

Order retroactively suspending the plaintiff ex-husband’s alimony obligation based on his diagnosis of lung cancer and his loss of employment and denial of the defendant ex-wife’s motion for attorney’s fees reversed and remanded; the Family Part’s decision to suspend the alimony obligation and to order the plaintiff to give monthly updates on his health was “an obvious attempt to afford temporary relief from circumstances which were dramatic and dynamic”; while it might have been an appropriate exercise of discretion, the record did not adequately demonstrate a weighing of the objective criteria to determine support obligations on a long-term basis; because of the temporary nature of the suspension of payments and because there was no articulation of any assets that might influence a determination to modify the alimony obligation, the Appellate Division remanded so that the record could be supplemented and the basis for the decision could be provided as required by Rule 1:7-4; furthermore, the reason for the denial of attorney’s fees should have been expressed.

HUSBAND AND WIFE
ZAPP v. ZAPP
Appellate Division, A-4915-02T3, January 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17564

Dual judgment of divorce affirmed; the alimony award was based on “a thorough and careful consideration” of all of the statutory factors, and there was no reason to second-guess the amount of the Family Part’s permanent alimony award; there was no error in awarding the plaintiff ex-wife less than 50 percent of the marital assets where the Family Part found that the plaintiff’s contributions to the defendant ex-husband’s medical practice did not increase his earnings or yield any other financial gain; the Family Part did not abuse its discretion by accepting the independent appraiser’s determination of the value of the parties’ residence, and there was ample evidence to support the Family Part’s discretion in allowing the defendant to retain possession of the residence and in giving the plaintiff credit for the asset.

CONTRACTS
CIT SMALL BUSINESS LENDING CORP. v. 268 WOODSIDE, INC.
Appellate Division, A-723-03T5, January 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17558

Order setting the value of a liquor license and entering final judgment in an action on a debt affirmed; the defendants defaulted on a $910,000 loan that the individual defendant had personally guaranteed and that had been obtained to purchase real property and a liquor license; after a plenary hearing at which the defendants’ expert testified that the value of the license was $300,000 and the plaintiff‘s expert testified that the value was $5,000, the trial court ordered that the license be marketed by a commercial liquor license broker for 120 days; no one bought the license, and the trial court valued it at $5,000; the procedures used by the trial court to value the license were “essentially correct,” and the valuation was fair and within the trial court’s discretion.

ENVIRONMENTAL LAW
IN RE REPUBLIC SERVICES OF NEW JERSEY, L.L.C.
Appellate Division, A-5410-02T1, January 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17559

Issuance of a permit to the respondent recycler to operate a transfer station and material recovery facility in Raritan Township affirmed; the respondent had run a recycling operation on the facility’s site since 1991, and the appellant Township challenged the Department of Environmental Protection’s decision to issue the permit on the grounds (1) that it violated the requirements of the Solid Waste Management Act and (2) that it was arbitrary, capricious, and unreasonable because the Department did not properly review the permit application; the Department’s decision was “well supported” by the record that it had compiled, and the Township’s contention that the Department had not abided by procedural guidelines concerning notice to and comment by affected persons was belied by the record; an agency’s decision is not rendered procedurally infirm merely because the agency did not adopt every suggestion made by an opponent.

PUBLIC EMPLOYEES
IN RE KENT
Appellate Division, A-3218-03T1, January 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17560

Decision of the Merit System Board (1) that adopted the administrative law judge’s determination that the appellant sanitation worker had engaged in conduct unbecoming a public employee and had caused damage to a citizen’s vehicle and (2) that imposed a 10-day suspension reversed and remanded; a citizen complained that the bumper of her car had been scratched when a sanitation worker threw a garbage can against it; there was no competent evidence that the damage had been caused by a sanitation worker or that the appellant was the person responsible where the citizen, who was the only eyewitness to the incident, did not testify and where nothing in the testimony of the other witnesses that was not hearsay addressed the issue of the appellant’s culpability.

DRUNK DRIVING
STATE v. BARNABA
Appellate Division, A-774-03T2, January 28, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17565

Conviction for driving under the influence affirmed; there was no abuse of discretion in the Municipal Court’s discovery order or the Law Division’s de novo review, the defendant’s challenged discovery requests did not fall within the scope of Rule 7:7-7, and there were no extraordinary circumstances justifying discovery of the requested materials; the Law Division judge properly concluded that the State had satisfied the three prongs of the test under Romano v. Kimmelman, and the Breathalyzer test results therefore were properly admitted as scientifically reliable.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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