New Jersey Case Law Update - NJ Attorneys
Docket No.: a-67-03Decided: 2004-11-22Caption: Information Spectrum, Inc. v. The HartfordSummary:PER CURIAM In this matter, the Court determines whether claims of Lanham Act violations and copyright infringement were covered by the insured's commercial general liability policy, thereby triggering the insurer's obligation to defend. Information Spectrum (the insured) filed a federal action seeking a declaratory judgment to dispel assertions by Facstore, Inc. (Facstore), that it had misappropriated Facstore's product—a computerized police reporting system. Facstore contended that the insured sold "knock-offs" of the product to prospects to whom Facstore had attempted to market the system. In response to the insured's declaratory judgment action, Facstore filed a counterclaim alleging, among other claims, copyright infringement, Lanham Act violations, pursuant to 15 U.S.C.A. § 1125 (a), and misappropriation of trade secrets. The jury in that matter rendered a verdict in favor of the insured.
Docket No.: a-97-01_1Decided: 2004-11-18 Caption: In the Matter of the Guardianship of J.N.H., a MinorSummary:PER CURIAM C.H.G. is the biological mother of J.N.H. Almost from the time J.N.H. was born, C.H.G was abusing illegal substances. The Division of Youth and Family Services (DYFS) began monitoring the family in early 1995. Eventually, J.N.H. was placed with his current foster parents in June 1996; he was two years and three months old. On August 18, 1997, DYFS transferred supervision of J.N.H. to the Adoption Resource Center unit because of C.H.G.’s long-term noncompliance with court orders. At the time, J.N.H. had been residing with his foster parents for just over one year. In September 1997, C.H.G. was incarcerated in the Edna Mahon Correctional Facility for Women for a probation violation. She remained incarcerated until March 20, 1998. J.N.H. had no visitation with his mother during that time. On December 8, 1997, DYFS filed an action seeking guardianship of J.N.H. and terminating C.H.G.’s parental rights. At the time of the proceeding, C.H.G. also had two older children: Jeremy, age ten, and Benjamin, age nine. Jeremy and Benjamin lived with their maternal grandmother. Three-year-old J.N.H. was living with his foster parents who sought to adopt him. On October 26, 1998, the trial court entered an order terminating the parental rights of C.H.G. over J.N.H. as a result of C.H.G.’s inability to overcome her alcohol and drug addictions and to provide a safe home for her son. In terminating parental rights, the court found that DYFS provided C.H.G. with various services, including foster care for J.N.H., drug and alcohol evaluations and treatment, and parenting skills training. Despite those efforts, C.H.G. remained homeless, unemployed, continued to abuse illegal substances, and lived in and out of various places. The court noted that C.H.G. failed to cooperate with various programs, including substance-abuse treatment programs, and was ultimately terminated from all programs, remaining in denial about her drug problem. According to the court, C.H.G. provided no care, comfort or nurturing to J.N.H. and had failed in all respects to parent the child. The court did note that since her release from the correctional facility to the Intense Supervision Program in March 1998, C.H.G. showed signs of improvement. Nonetheless, the court concluded that, in light of her conviction of abuse and neglect and the strong expert testimony regarding the harm to J.H.N. in separating him from his foster parents, the requirements for termination of parental rights had been met. In 2001, C.H.G., who by then had completely transformed her life, moved for vacation of the 1998 Order terminating parental rights pursuant to Rule 4:50-1(e) and (f). At the time, J.N.H. was seven years old and had been living with his foster family for five years. The trial court denied the motion and the Appellate Division affirmed on appeal.
Docket No.: a-77-03Decided: 2004-11-15Caption: Furst v. Einstein Moomjy, Inc.Summary:ALBIN, J., writing for a unanimous Court. In this Consumer Fraud Act case, pursuant to N.J.S.A. 56:8-1 to –20, the Court determines whether plaintiff's ascertainable loss was the replacement value or the purchase price of the defective product.
Appellate Division Cases
Docket No.: a1743-03Decided: 2004-11-29 Caption: STATE OF NEW JERSEY v. RUSSELL BREITWEISER Summary:FUENTES, J.A.D. In State v. Zeidell, 154 N.J. 417 (1998), the Supreme Court defined second-degree-tender-years sexual assault as an intentional touching by the actor of his or her intimate parts, for arousal or sexual gratification, in the view of an underage child, whom the actor knows to be present. Id. at 431 (citing N.J.S.A. 2C:14-2b, 14-1d). The central question we must answer in this appeal is: can a defendant be convicted of this offense when it is undisputed that the underage victim did not actually view the allegedly offensive conduct? After consideration of the arguments advanced by the parties and in light of prevailing legal standards, we conclude that the answer is "yes."
Docket No.: a3470-02Decided: 2004-11-29 Caption: STATE OF NEW JERSEY v. SONIA HARRISSummary:HOLSTON, JR.In this matter of first impression, we hold that N.J.S.A. 2C:21-25b(1) encompasses in its definition of money laundering any possession of property known to be derived from criminal activity with the intention to promote further criminal activity. No independent predicate offense is necessary to the promotion prong of New Jersey's money laundering statute.
Docket No.: a4661-02Decided: 2004-11-29Caption: LINDA PONDEN v. WILLIAM E. PONDEN, et al.Summary:FISHER, J.A.D.In this appeal, we consider the extent of a trial court's discretion, in the wake of the 2000 rule amendments known as
Docket No.: a6444-02Decided: 2004-11-29Caption: PAUL A. ORAS v. THE HOUSING AUTHORITY CITY OF BAYONNE, et al.Summary:WINKELSTEIN, J.A.D.
Plaintiff, Paul Oras, is a forty-eight-year-old paraplegic who suffered lower extremity paralysis in a motorcycle accident in 1977. He appeals from a June 20, 2003 summary judgment that dismissed his complaint alleging violations of state and federal disability discrimination laws by defendant Bayonne Housing Authority (the Authority) and its employees. He claims the Authority discriminated against him by not providing him with a handicap-accessible apartment, and by not permitting him to keep a dog that he claims assisted him with his daily activities. We reverse.
Docket No.: a1093-04Decided: 2004-11-24 Caption: SAFARI CLUB INTERNATIONAL et al. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. Summary:SKILLMAN, P.J.A.D. This appeal challenges the validity of a notice issued by the Commissioner of Environmental Protection on October 26, 2004, which directed the Division of Fish and Wildlife not to issue black bear hunting permits for the 2004 hunting season, and also "directed the Assistant Commissioner for Natural and Historic Resources to close all lands owned, managed, or controlled by the Department, whether through [the Division of Fish and Wildlife] or Division of Parks and Forestry, to the hunting of black bears[.]" In another appeal, filed three weeks before this one, we held that the Commissioner lacks statutory authority to direct employees of the Division of Fish and Wildlife not to issue permits for a hunt authorized by the Fish and Game Council and directed the Commissioner to complete the processing of all applications for bear hunting permits by December 2, 2004. U.S. Sportsmen's Alliance Found. v. N.J. Dep't of Envtl. Prot., N.J. Super. (App. Div.), certif. granted, N.J. (2004).
Docket No.: a1106-03Decided: 2004-11-24 Caption: MAUREEN A. GRASSO et al. v. THE BOROUGH OF SPRING LAKE HEIGHTS, et al. Summary:LEFELT, J.A.D. Plaintiffs Maureen Grasso and R.G. Grasso, Jr., Inc. appeal from two judgments: (1) upholding Spring Lake Heights Borough's denial of plaintiffs' application for a height variance, and (2) declining to estop the Borough from enforcing its zoning ordinance. We affirm the estoppel judgment, but because we articulate, for the first time, the standard to be applied in reviewing an application for a height variance under N.J.S.A. 40:55D-70(d)(6), we vacate the variance denial and remand to the Board of Adjustment for reconsideration of plaintiffs' application.
Docket No.: a3278-03Decided: 2004-11-24Caption: STATE OF NEW JERSEY v. TATIANA CHIROKOVSKCIC Summary:HOENS, J.A.D. The State of New Jersey, by leave granted, appeals from an order granting defendant Tatiana Chirokovskcic's motion to suppress certain statements made by her while in police custody. We affirm.
Docket No.: a3867-02Decided: 2004-11-24 Caption: WENDY ZUIDEMA et al. v. JAMES J. PEDICANO, M.D. et al. Summary:PETRELLA, P.J.A.D. Defendants James J. Pedicano, M.D. and James J. Pedicano, M.D., P.A. appeal from an adverse jury verdict of $150,000 in an action originally instituted by plaintiffs Wendy and John Zuidema as a malpractice action, but which was amended to assert additional claims of sexual assault and "medical negligence." This appeal presents the issue of whether sexual relations by a physician with a patient can be considered medical malpractice or "medical negligence" as opposed to an assault where the medical malpractice claims were dismissed before trial and the jury found no sexual assault. Plaintiffs See footnote 1 cross-appeal the judge's calculation of prejudgment interest using the filing date of the amended complaint.
Docket No.: a4419-03Decided: 2004-11-24Caption: EDWARD K. WOODWORTH v. PETER E. JOYCE Summary: WINKELSTEIN, J.A.D. The issue presented in this opinion is whether a driver who causes an accident while under the influence of alcohol is entitled to the benefits of the verbal threshold provision of an injured plaintiff's insurance policy. In this case, defendant Peter Joyce had a blood alcohol level of .16 at the time he caused an accident injuring plaintiffs. He pleaded guilty to driving under the influence. As a consequence, the Law Division ordered that he was "precluded from asserting the verbal threshold, and that all claims against [him] are governed by 'no threshold. . . .'" We granted defendant leave to appeal and now reverse.
Docket No.: a6006-02Decided: 2004-11-24Caption: JOSEPH RODD v. RARITAN RADIOLOGIC ASSOCIATES, P.A., STUART KOTLER, M.D. Summary:PARRILLO, J.A.D. In this medical malpractice wrongful death action, defendants, Stuart Kotler, M.D., and Raritan Radiologic Associates, P.A., appeal from entry of judgment, after a jury verdict in favor of plaintiff, Joseph Rodd, individually and as administrator ad prosequendum of the Estate of Maria Rodd, in the amount of $3,240,000, and from denial of their motion for a new trial. For the following reasons, we reverse and remand for a new trial.
Docket No.: a6279-02Decided: 2004-11-19Caption: BRUNO BUMBACA v. TOWNSHIP OF EDISON, TOWNSHIP OF EDISON FIRE DEPARTMENT et al. Summary:WEISSBARD, J.A.D. Plaintiff, Bruno Bumbaca, appeals from an order of summary judgment dismissing his complaint against defendants, Township of Edison, Township of Edison Fire Department (EFD), and Fire Chief Robert Campbell, which had alleged that defendants discriminated against plaintiff based upon familial status in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to hire plaintiff as a full-time paid firefighter (count one), breached a contract by failing to hire him (count two), and discharged him wrongfully in violation of public policy (count three). Plaintiff sought specific performance appointing him as a full-time firefighter with pay retroactive to the date of original hire, lost wages, benefits and monetary loss, compensatory and punitive damages, and counsel fees and costs. See footnote 1 We affirm.
Docket No.: a0514-03Decided: 2004-11-18 Caption: MICHAEL J. PRON v. CARLTON POOLS, INC. Summary:HOLSTON, JR., J.A.D. In this Consumer Fraud Act (CFA) case, defendant, Carlton Pools, Inc., appeals from the May 12, 2003 order awarding plaintiff, Michael J. Pron, attorneys' fees in the amount of $16,848.01 for a technical violation of the CFA. The violation was defendant's misrepresentation in its advertising not to use subcontractors in the construction of an in-ground pool. Defendant also appeals the July 15, 2003 order denying its motion for reconsideration. We reverse.
Docket No.: a3114-02 Decided: 2004-11-18 Caption: PETER SINGER, et al. v. THE TOWNSHIP OF PRINCETON Summary:PARRILLO, J.A.D. At issue is the constitutionality of a Princeton Township (Township) ordinance prohibiting the purposeful or knowing feeding of wild deer on public and private lands throughout the Township. Plaintiffs are twenty-one Township residents who challenge the ordinance on the grounds that it arbitrarily and unreasonably deprives them of their property right to feed wild deer on their land; is not sufficiently clear; and extends further than is necessary to fulfill the municipality's interest. We are satisfied that there is no constitutional infirmity inherent in the ordinance.
Docket No.: a4252-03Decided: 2004-11-17 Caption: STATE OF NEW JERSEY v. JONATHAN DANIEL GILBERTI Summary:SKILLMAN, P.J.A.D. The question presented by this appeal is whether defendant's alleged offensive comment to one of the victims of his crimes shortly after the trial judge pronounced sentence provided an adequate basis for the judge to vacate the sentence. We conclude that defendant's alleged comment did not warrant the judge vacating the orally pronounced sentence.
Docket No.: a4289-03Decided: 2004-11-17 Caption: STATE OF NEW JERSEY v. MICHAEL J. NATALE Summary:STERN, P.J.A.D. On remand from the Supreme Court, and after the State declined to try defendant on the No Early Release Act (NERA) predicates for second-degree aggravated assault, defendant was sentenced for second-degree aggravated assault to a nine-year term with four and one-half years to be served before parole eligibility. See footnote 1 He also received concurrent five-year sentences for third-degree terroristic threats and third-degree criminal restraint, to be served consecutively to the sentence for aggravated assault. The aggregate sentence therefore is fourteen years with four and one-half years to be served before parole eligibility.
Docket No.: a0744-04Decided: 2004-11-16Caption: U.S. SPORTSMEN'S ALLIANCE FOUNDATION, et al. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al.Summary:SKILLMAN, P.J.A.D. The issue presented by this appeal is whether the Commissioner of Environmental Protection has statutory authority to direct employees of the Division of Fish and Wildlife not to issue permits for a hunt authorized by the Fish and Game Council. We conclude that the Commissioner lacks authority to subvert the Council's authorization of a hunt by such a ....
Docket No.: a4599-03Decided: 2004-11-16Caption: STATE OF NEW JERSEY v. JAMES BADESSA Summary:PARKER, J.A.D. In this appeal, defendant challenges the stop of his vehicle after he made a lawful turn at an intersection within a two-block DWI checkpoint zone. He argues that, in the absence of signs prohibiting turns, the police lacked probable cause to stop his vehicle and that evidence of his refusal to submit to a breathalyzer test after the stop should have been suppressed. After the municipal court judge denied defendant’s motion to suppress, the matter was tried and defendant was found not guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, but guilty of refusal to submit to a breathalyzer test (refusal), N.J.S.A. 39:4-50.4(a). Defendant appealed to the Law Division, which also denied his motion to suppress and found him guilty of refusal after a de novo review.
Docket No.: a5597-02 Decided: 2004-11-16Caption: IN RE AUTHORIZATION FOR FRESHWATER WETLANDS GENERAL PERMITS Summary:CONLEY, P.J.A.D.Appellant, Preserve Old Northfield (POND), challenges a Letter of Interpretation (LOI) and a Freshwater Wetlands General Permit No. 6 (GP6) issued by the New Jersey Department of Environmental Protection (DEP) for activities near or adjacent to the properties of POND's members.
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