New Jersey 2008 Court Opinions
 

2006 - 2007 - 2008 - 2009 - 2010

Casino Exclusion List, IMO Petition of S.D. of Removal for the Voluntary Self- Exclusion List, 3/20/08 (AD)

The Casino Control Commission promulgated regulations for voluntary self-exclusion of problem gamblers from New Jersey
gaming activities. S.D. signed up for the lifetime SEL. Though acknowledging he voluntarily requested, with full knowledge and intent, the direct statutory consequences of his placement on the SEL, namely a lifetime ban from New Jersey casinos, S.D. sought removal upon becoming aware that some out-of-state casinos affiliated with those in New Jersey would also exclude him from their gaming facilities.

The Commission denied the application, concluding the potential extra-territorial consequences of placement on New
Jersey's SEL are collateral and do not negate the applicant's voluntary actions, the harm is minimal when balanced against the statutory aims of the SEL, and the agency's revision of its form to include reference to this potential consequence after being informed of it by S.D. do not demonstrate an acknowledgement of a duty to disclose this information or the insufficiency of the prior form signed by S.D. The Court discerned no basis to second-guess the agency's decision.

Family Part Dismissals, Julie Greely v. Sean Greely, 3/19/08 (NJ SC)

Voluntary dismissals in the Family Part of the Chancery Division are governed by Rule 4:37-1 and plaintiff’s stipulation of
dismissal failed to follow the dictates of that Rule. In addition, under the Uniform Child Custody Jurisdiction and
Enforcement Act, a motion to dismiss a child custody matter on inconvenient forum grounds may be made by any party, by the court on its own motion, or by another state’s court.

Judgements, Adamar of New Jersey, Inc. v. David Mason, 3/19/08 (AD)

The Legislature established a twenty-year term for New Jersey judgments, which can be extended for an additional
twenty-year term under N.J.S.A. 2A:14-5, provided the creditor files a motion or other action to revive within twenty years after the judgment was entered, and satisfies the elements of Kronstadt v. Kronstadt, 238 N.J. Super. 614, 616-18 (App. Div. 1990) that: (1) the judgment is valid and subsisting; (2) it remains unpaid in full or in part; and (3) there is no
outstanding impediment to its judicial enforcement, e.g., a stay, a pending bankruptcy proceeding, an outstanding injunctive order, or the like.

DWI- Admissibility of the Alcotest Results, State v. Jane H. Chun, et al., 3/17/08 (NJ SC)

The NJ Supreme Court adopted, as modified, the Special Master’s reports and recommendations. Subject to certain conditions, the Court held that the Alcotest is scientifically reliable and that itsresults are admissible in drunk driving prosecutions. The Court contemporaneously issued an Order vacating its January 10, 2006, stay of drunk driving prosecutions, appeals, and sentencing, which shall proceed in accordance with the directives set forth
therein.

Name Change, In the Matter of the Application of E.F.G. to Assume a New Name, 3/17/08 (AD)

Plaintiff, a domestic violence victim, appealed from a trial court's order denying her application to assume a new
name, her request to waive the requirement to publish notice, and her request that the matter be placed under seal and not be entered in any data base accessible by the public. The Appellate Division found
that adhering to the rule requiring publication of an application to change a name would result in an injustice, and,
because we find that good cause exists to seal the court record, we reversed the trial court pursuant to Rule 1:1-2 and 1:2-1.

Civil- Vacate Default Arbitration Award, SWH Funding Corp. v. Walden Printing Co., Inc., et al., 3/17/08 (AD)

Under R. 4:21A-4(f), a party seeking to vacate a civil arbitration award entered by default must establish both "good
cause" and a "meritorious defense." Although defense counsel's neglect in failing to appear at the arbitration, and in failing
to be diligent in ascertaining the outcome of the proceeding, constituted "good cause" under R. 4:21A-4(f), defendants failed, to demonstrate a "meritorious defense." Rule 4:50-1(a) relief is not available because inadvertence of counsel alone is insufficient, as a matter of law, to establish "excusable neglect."

In the context of adjudicating plaintiff's motion to confirm the arbitration award, the trial court erroneously
increased the damage award entered by the arbitrator by considering evidence not presented by plaintiff in the original
arbitration hearing. Under R. 4:21A-6(b)(3), the court's authority in adjudicating a motion to confirm an arbitration
award is limited to reducing to judgment the amount of damages found by the arbitrator, supplemented only by prejudgment interest provided in R. 4:42-11(b).

Criminal- Cross Examination of Defendant's late Alibi notice, State of New Jersey v. Douglas Noble, 3/13/08 (AD)

The Appellate Division held that the State may, consistent with a defendant's right to remain silent, cross-examine him on the late filing of his alibi notice when such cross-examination is designed to highlight inconsistencies between the alibi notice and defendant's testimony a mere two days later. The Court concluded that where the cross-examination on the timing of the alibi notice served to demonstrate the unlikelihood that defendant's recollection of the facts supporting his alibi defense would change so significantly in a two-day period, the State's cross-examination did not constitute a prohibited evisceration of defendant's right to remain silent. Instead, such cross-examination constituted a permitted "litigational" use of the late
furnishing of an alibi notice.

Criminal- Lesser Included Offenses, State of New Jersey v. Hipolito Ruiz, 3/12/08 (AD)

When a jury acquits a defendant of the sole charge in the indictment, retrial for a lesser-included offense on which the
jury was deadlocked is not constitutionally barred.

Search and Seizure- Terry Stop, State of New Jersey v. Cadree B. Matthews, 3/10/08 (AD)

An anonymous caller stated that a person in a burgundy Durango with temrary license plates was flashing a gun at a
certain location late at night. Police proceeded to the scene, located the vehicle and performed a pat-down search of its three occupants. The search revealed no weapons. The police then secured the occupants away from the vehicle and searched the passenger compartment, finding a handgun beneath the front passenger seat. While conducting the search, a fourth person, later identified as the defendant, attempted to get to the vehicle. When asked to leave the scene, he refused. Defendant was then arrested for disorderly conduct and resisting arrest.

When he was secured in the back of a patrol car, defendant confessed that the handgun police found in the vehicle belonged to him. After the denial of a motion to suppress the handgun on the basis of an illegal search, defendant pled guilty to unlawful possession of a weapon, resisting arrest, and unlawful possession of a handgun by certain persons not to have weapons.

The Appellate Division reversed the convictions as to the unlawful possession of a weapon and certain persons, based upon the illegality of the search. The search was not justified under Terry v. Ohio because the anonymous tip, standing alone, did not provide an independent basis for the stop, frisk of the occupants, or search of the vehicle.

Insurance Coverage, Nicole Hager, et al. v. Tammy M. Gonsalves, et al. // High Point Insurance Company v. Rutgers Casualty Insurance Company, et al., 3/7/08 (AD)

The failure of both the operator and the owner of a motor vehicle to cooperate with the vehicle's insurer, thus preventing
the insurer from ascertaining whether the operator was a permissive user at the time of the subject accident, may provide
sufficient grounds for the insurer to disclaim coverage.

Criminal- Retroactive Application, State of New Jersey v. J.A., 3/6/08 (AD)

In this appeal from the denial of a post-conviction relief petition, the Appellate Division held that the Supreme Court's decision in State v. P.H., 178 N.J. 378 (2004), that a jury may consider the timing of a victim's disclosure of sexual abuse in assessing credibility, and therefore disapproving the contrary holding in State v. Bethune, 121 N.J. 137 (1990), is not to be given complete retroactivity to encompass defendant's case on collateral review, but is limited to pipeline retroactivity
only.

Torts Claim Act, Helen Gazzillo v. Robert Grieb v. South Hunterdon Regional Board of Education, 3/5/08 (AD)

Plaintiff sued defendant based upon his having sexually assaulted her. Both parties were employees of a regional board
of education, and defendant contended he was not subject to suit because plaintiff had not filed a notice of claim. The Appellate Division disagreed because there was no nexus between his public employment and the alleged tort.

Civil- Malpractice, Montee Saunders, et al. v. Capital Health System at Mercer, et al., 3/5/08 (AD)

The Appellate Division reversed the Law Division's dismissal of plaintiffs' complaint against a certified nurse midwife and held that an Affidavit of Merit is not required in a personal injury suit for alleged professional malpractice against a licensed midwife. The Court also reversed the Law Division's dismissal of plaintiffs' complaint against a health care facility because the court failed to hold an accelerated case management conference, which is required in professional malpractice cases.

Criminal- Post Conviction Relief, State of New Jersey v. Yusef Allen, 3/4/08 (AD)

On appeal from the denial of defendant's petition for postconviction relief, the Appellate Division remands for an
evidentiary hearing to determine why defendant declined an offer for mistrial made by the judge during trial (counsel's statement during trial that he wasn't doing it for "economic" reasons did not suffice) and for an evaluation of the credibility of an individual who gave a post-judgment affidavit exculpating defendant.

Civil Immunity, Ric Malik, et al. v. A. Fred Ruttenberg, Esq., et al., 3/3/08 (AD)

During a recess in a multi-day arbitration to resolve claims under a residential construction contract, one of the
attorneys for the homeowner and the builder were involved in a physical altercation during a recess. The Appellate Divisino held that N.J.S.A. 2A:23B-14a confers immunity on arbitrators and arbitral organizations from civil liability to the same extent as a judge acting in a judicial capacity, and this immunity bars plaintiff's claim of negligence founded on the failure of the arbitrator to admonish or remove one of the homeowners' attorneys from the proceedings.

Tort Claims Act, 02-28-08 Richard Leidy v. County of Ocean, et al., 2/28/08 (AD)

In dismissing plaintiff's personal injury action against a public entity (County of Monmouth), the Appellate Division held that where the actual tortfeasor's identity has not been actively obscured and plaintiff has not been thwarted in his or her own diligent efforts to determine the responsible party, then plaintiff's misidentification does not constitute an "extraordinary circumstance" warranting relaxation of the Tort Claims Act 90- day time constraint, N.J.S.A. 59:8-8.

Prompt inspection of the area within a reasonable time following plaintiff's motorcycle accident would have led to identification of the County of Monmouth as the party responsible for maintaining the portion of the roadway, bordering Ocean County, where the incident occurred. Moreover, the delay in notice, occasioned by the lack of any reasonable efforts by plaintiff in the interim 90 days to ascertain ownership of the roadway, likely prejudiced defendant in its efforts to investigate the accident scene which, due to time and weather, may have changed.

Workers Compensation, Dale Scott v. Foodarama Supermarkets, 2/27/08 (AD)

The Appellate Division held that the exception to the going-and-coming rule in the Workers' Compensation Act, N.J.S.A. 34:15-36, which provides that an employee be paid for travel time in order to bring such time within the course of employment for compensation purposes, does not extend to cover a salaried worker required to work a minimum of forty-eight hours per week where travel time to and from work is not included in the minimum workweek.

Liquor Licensing, Circus Liquors, Inc. v. Governing Body of AMiddletown Township, 2/27/08 (AD)

In this appeal, the Appellate Division considered whether the Director of the Division of Alcoholic Beverage Control was authorized to allow the holders of a third liquor license -- possessed in violation of the two-license limitation contained in N.J.S.A. 33:1-12.31 -- to retain the third license long enough to transfer it. The court concluded that because, among other things, the three licenses were held for six years in violation of the statute, the Director should not have granted the
equitable remedy of permitting the holder to continue to hold the license in order to sell it.

Search and Seizure, State v. Andre Johnson, 2/26/08 (NJ SC)

Defendant has standing under state law to challenge the warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure to comply with the warrant requirements of Article I, Paragraph 7 of the New Jersey Constitution.

DYFS, New Jersey Division of Youth and Family Services v. M.W. // In the Matter of the Guardianship of R.W., F.W. and T.H. New Jersey Division of Youth and Family Services v. T.H. // In the Matter of the Guardianship of T.H., 2/26/08 (AD)

DYFS filed an action to terminate parental rights of two children against mother who abused and abandoned them. A third
child also abused and neglected by the mother died as the result of abuse by the person to whom mother abandoned her children. Mother sued DYFS for wrongful death of third child and received $1 million settlement from the State. Trial court permitted amendment of guardianship action to include third child and terminated mother's parental rights to all three children. Held in these unusual circumstances that parental rights to child could be terminated posthumously on principle that equity will not permit wrongdoer to profit by wrongdoing.

Criminal- Post convition relief, 02-26-08 State of New Jersey v. Terrence Echols, 2/26/08 (AD)

In this appeal, the Appellate Division reversed the denial of defendant's petition for post-conviction relief, finding
defendant was denied the effective assistance counsel because:

(1) trial counsel failed to fully elicit testimony regarding defendant's alleged alibi; (2) appellate counsel failed to
pursue on direct appeal the trial judge's refusal to give the jury an alibi instruction; (3) trial counsel failed to object
and appellate counsel failed to argue on appeal that the prosecutor's argument in his opening statement -- that the
jurors were safe from defendant and others in the courtroom only because of the presence of sheriff's officers -- was prejudicial to his right to a fair trial; and (4) the confluence of these omissions, in the context of other circumstances, such as the testimony of witnesses in handcuffs and prison garb, generated a reasonable doubt about the reliability of the outcome.

Criminal- "Part of a continuing Business or Enterprise" State v. Charles A. Watkins, III. 2/21/08

Individuals acting alone in furtherance of their own criminal interests who commit a series of offenses such as thefts or
forgeries are not “part of a continuing business or enterprise” because they are not part of a larger whole and are not acting in concert with others.

DYFS, Diivision of Youth and Family Services v. D.H. and J.V. // IMO the Guardianship of A.H., 2/21/08 (AD)

Kinship Legal Guardianship pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, is deemed to be a
permanent placement option in the appropriate circumstances specified in the statute.

Search and Seizures, State v. Sulaiman A. Sloane. 2/11/08 (NJ SC)

During a motor vehicle stop, the passenger, like the driver, is seized under the federal and state constitutions. Police do not need a reasonable suspicion before they may access the NCIC database and, because accessing the NCIC database was within the scope of the traffic stop and did not unreasonably prolong the stop, there was no basis to suppress the evidence found.

Consumer Fraud, Czar, Inc. v. Jo Anne Heath and Thomas J. Heath, Sr., 2/6/08 (AD)

The Appellate Division held that where the owner of a newly constructed home dealt directly with a custom cabinetmaker and contracted directly for the installation and construction of cabinets, doors, and certain woodwork, and where the custom cabinetmaker did not construct the new home, the cabinetmaker's services fall within the definition of "home improvement" contained within N.J.A.C. 13:45A-16.1A.

Juvenile Delinquency- Waiver, State of New Jersey in the Interest of D.Y., 2/4/08 (AD)

The prosecutor filed a complaint in the Family Part charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first complaint and filed a second complaint charging murder. Within 30 days of the second filing, the prosecutor moved for waiver of the murder complaint to the Law Division, where the juvenile would be tried as an adult.

The Appellate Division reversed the denial of the prosecutor's motion, holding: (1) the motion was timely because the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did not begin to run on the murder complaint until it was filed; (2)the development of the additional incriminatory evidence after the filing of the first complaint provided good cause for an extension of the 30-day time limit even if that time began to run from the filing of the first complaint.

Criminal- Jury Instructions, State v. David L. Wilder, 1/31/08 (NJ SC)

Based on the State’s evidence and giving the State the benefit of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the trial court did not err by sending the murder charge to the
jury. The NJ Supreme Court rejected continued use of the Christener rule; overcharging errors must be reviewed under the “unjust result” standard established in Rule 2:10-2.

Civil- Affirmative Duty, Mark Champion, et al. v. David W. Dunfee, Jr., et al.v. Kristi Kakoda, 1/31/08 (AD)

The Appellate Division held that a guest passenger who neither owns nor controls the motor vehicle, who enjoys no special relationship to, and has not substantially encouraged the wrongful behavior of, the actual tortfeasor, owes no affirmative duty to a fellow passenger to prevent a visibly intoxicated driver from driving is own automobile.

Criminal- Ineffective Assistance of Counsel, State v. William J. Allegro, 1/29/08 (NJ SC)

Allegro’s ineffective assistance of counsel claims arising from defense counsel’s failure to investigate potential witnesses and to call those witnesses do not satisfy the two-pronged Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations requires a remand for development of a more comprehensive record and the PCR court’s conclusions based on that record.

Search and Seizure, State of New Jersey v. Quinn Marshall, 1/29/08 (AD)

A judge issued a search warrant for an apartment in a multiple unit structure but required that the police further investigate which of two apartments was allegedly involved in criminality; he did not require that the police return with this additional, necessary information, but instead issued the warrant on the condition that it not be executed until that additional information was obtained.

The court concluded that this process violated the constitutional requirement that a search warrant be issued by a "neutral and detached magistrate" because the judge ceded his authority to the discretion of the police.

The State also argued that the warrant was sufficient insofar as it had authorized the police to search whichever
apartment was "controlled" or "possessed" by a particular person. The court held that this loose description did not
conform to the constitutional requirement that the place to be searched be "particularly describe[d]" in the warrant.

Jurisdiction- General/ Specific, Appaloosa Investment, L.P.I., et al. v. J.P. Morgan Securities, Inc., et al., 1-28-08 (AD)

General jurisdiction, as distinguished from specific
jurisdiction, may not be exercised by a New Jersey court over a foreign corporation when the corporation's only continuous contact with New Jersey is the use of agents in New Jersey to carry out the ministerial duties required for maintenance of the corporation's New York Stock Exchange listing of its publicly traded securities.

Divorce, Bonnie A. Clark v. Anthony Pomponio, 1-28-08 (AD)

In this divorce action, after the defendant had filed for
bankruptcy and while the automatic bankruptcy stay was still in effect, the trial court suppressed defendant's answer for failure to provide discovery. This action violated the bankruptcy stay and was void with respect to the equitable distribution issues in the case.

After the bankruptcy stay was lifted, the court entered a default judgment of divorce. Since the suppression of
defendant's answer with respect to equitable distribution issues was void, the provisions of the default judgment of divorce providing for equitable distribution must be set aside. Due to the interdependence of the financial issues in a divorce case recognized under New Jersey law, the trial court also should not have proceeded.

Juvenile Delinquency- Waiver, State of New Jersey v. Ernest J. Read, III, 1/24/08 (AD)

In determining whether to waive a charge of a Chart 1 offense against a juvenile over the age of sixteen, the Family Part is not required to consider the juvenile's alleged psychological impairments. N.J.S.A. 2A:4A-26, which authorizes the Family Part to waive jurisdiction to adult court based on judicial fact-finding by a preponderance of the evidence, does not violate a juvenile-defendant's jury trial rights under the principles set forth in Apprendi and Blakely.

Workmen's Compensation, Yakup Acikgoz v. New Jersey Turnpike Authority, et al. (AD)

In this appeal from the Division of Workers' Compensation, the Appellate Division interpreted the "premises rule," N.J.S.A. 34:15-36, and affirm the compensation judge's determination that a motor vehicle accident occurring on an access overpass of the New Jersey Turnpike, between two co-employees of the Turnpike Authority, was not compensable. As a result, defendant's claim that plaintiff's tort lawsuit was barred by N.J.S.A. 34:15-8 was properly denied.

Juvenile- DYFS, Division of Youth and Family Services v. G.M. and M.M.// In the Matter of the Guardianship of K.M. and C.M., 1/23/08 (AD)

In this opinion the Appellate Division reviewed what considerations should inform the trial court's decision whether to permit the Division of Youth and Family Services (D.Y.F.S.) to terminate Title Nine proceedings after the filing of an abuse and neglect complaint has resulted in the modification of the residential custody of the children at issue.

The Court held that modification of the residential custody of a child, from one natural parent to the other, is not a placement under N.J.S.A. 9:6-8.54. However, notions of fundamental fairness and the best interests of the child require that the judge conduct a full custody hearing prior to the termination of the Title Nine litigation to determine whether custody should remain as modified, or whether custody should be returned to the initial custodial parent, subject to conditions and D.Y.F.S.'s continued supervision.

Although such a hearing is not required by the specific language of Title Nine, it is implicit in the provision governing termination of the proceedings, N.J.S.A. 9:6-8.50(e), and it is required by the overarching statutory concern for the child's best interests. Absent such a hearing prior to terminating the Title Nine litigation, custody could be effectively modified contrary to the parties' initial expressed intent and without due process.

The original custodial parent would then unfairly bear the burden of demonstrating that the new custodial arrangement was not in the child's best interests, yet at the same time be deprived of the representation available to her in the Title Nine litigation and the D.Y.F.S. services available to her if custody was restored with conditions.

Expungement, State of New Jersey v. J.R.S. // In the Matter of Expungement Petition of J.R.S., 1/22/08 (AD)

Petitioner appeals from the order of the Law Division vacating a previously entered judgment of expungement. Before filing the expungement application, petitioner sent a TCA tort claims notice to the State regarding the subject matter of the expungement. After the expungement was granted, petitioner commenced a civil suit against the State.

The Appellate Division rejected the State's argument that petitioner's filing of a TCA tort claims notice constituted the commencement of "civil litigation" against a public entity, triggering the statutory bar against the granting of an expungement petition contained in N.J.S.A. 2C:52-14(d). The Court also found no statutory support for the State's argument that enforcement of the expungement judgment deprives the State of information needed to defend itself against plaintiff's allegations of wrongdoings.

Criminal Law- Krol, State v. Manuel B. Ortiz, 1/17/2008 (NJ SC)

The NJ Supreme Court held that Krol periodic review hearings must be held for those defendants acquitted by reason of insanity who are committed under N.J.S.A. 2C:4-8(b)(3) as well as for those who are released subject to supervision or conditions pursuant to N.J.S.A. 2C:4-8(b)(2), but not for those who are released without supervision or conditions as provided in N.J.S.A. 2C:4-8(b)(1).

Administrative Law, Christine Gillespie v. Department of Education, State Board of Education, 1/17/08 (AD)

The Department of Education properly denied a petition for an amendment to an administrative rule which recognizes that, in certain circumstances, a State district superintendent may make probable cause determinations in tenure proceedings for school employees. Tenured employees are not denied procedural due process when probable cause determinations are made by the State district superintendent rather than by the district board of education.

Criminal Law- Sanitization of Prior Convictions, State v. Frederick T. Hamilton, 1/16/2008 (NJ SC)

The NJ Supreme Court held that the trial court erred in concluding that it had no ability to ameliorate the undue prejudice to defendant through sanitization of his earlier conviction. Additionally, the Court's prior holding that sanitization is mandatory in situations in which a prior conviction is the same or similar to the present charge did not foreclose from trial courts the discretion to consider sanitization in other circumstances that pose a risk of undue prejudice to a defendant.

Government Land , Township of Middletown v. Richard Simon, et al., 1/15/2008 (NJ SC)

The NJ Supreme Court ruled that the park lot at issue was dedicated land and the sale of the tax sale certificate and the subsequent foreclosure on the lot did not prohibit the Township from accepting the dedication of the land as a park.

Retail Installment Sales Contracts (RISC), Jefferson Loan Company, Inc. v. Rubena A. Session, et al., 1/15/2008 (AD)

In this appeal, the Appellate Division held that an assignee of a retail installment sales contract (RISC) can be held liable under the Consumer Fraud Act for the assignee's own unconscionable commercial practices and activities related to the assignee's repossession and collection practices, in connection with the subsequent performance of the RISC.

Attorney Referral Fees, Eichen, Levinson & Crutchlow, LLP v. A. Kenneth Weiner, et al., 1/15/2008 (AD)

The Appellate Division held that an attorney-trustee who has been appointed pursuant to Rule 1:20-19 to oversee the practice of a suspended or disbarred lawyer is entitled to take possession of referral fees otherwise due to the suspended or disbarred lawyer from a certified civil trial attorney for matters that were referred to the certified civil trial attorney before the suspension but were completed thereafter.

NJ Law Against Discrimination, Alice Michael v. Robert Wood Johnson University Hospital, et al., 1/15/2008 (AD)

A defendant who prevails in an action under the New Jersey Law Against Discrimination may be awarded counsel fees if the plaintiff brought the charge of discrimination in bad faith.

Juvenile Delinquency, State of New Jersey v. B.M., 1/11/2008 (AD)

Tthe Appellate Division that a defendant's decision to introduce certain evidence may trigger the right of the State to rebut any unfair implication of that evidence.

In this matter where sexual abuse is alleged by a ten-year-old child, the Appellate Division affirmed the trial court's exercise of discretion to permit the defendant to elicit on cross-examination that the child had also alleged separate incidents of sexual abuse by three other persons.

Intervention Service, Noel Gowran v. Wawa, Inc., et al. // Robert Wood Johnson University Hospital v. Noel Gowran, 1/10/2008 (AD)

In this appeal, the Appellate Division held that an intervenor was not required to personally serve upon plaintiff a third-party complaint, which sought relief from plaintiff, but was only required to serve the pleading on plaintiff's attorney of record.

Jurisdiction/ Choice of Law, W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 1/10/2008 (AD)

In this breach of contract action between companies located in New Jersey and Brazil, procedural errors committed by plaintiff in the trial court and in this court preclude a determination that plaintiff established sufficient minimum contacts to satisfy its burden of proof on the issue of specific jurisdiction over the foreign company.

Assuming sufficient contacts for specific jurisdiction, international comity nonetheless justified dismissal of plaintiff's complaint even though its New Jersey action was filed shortly before the defendant filed its action in Brazil because (1) the claims and counterclaims in both jurisdictions arose from the same facts and concerned the same legal issues; (2) plaintiff proceeded on its counterclaim in Brazil without asking for deference as a matter of comity to its New Jersey action; (3) substantial discovery proceedings have occurred in Brazil; and (4) plaintiff has not suggested that Brazil will provide anything other than a fair resolution of the disputes.

Variance Applications, Pond Run Watershed Association, et al. v. Township of Hamilton Zoning Board of Adjustment and Crestwood Construction, LLC, 1/10/2008 (AD)

A published and mailed notice of use variance applications sought for a proposed development that included a 5,000 square foot, 168-seat restaurant with a potential liquor license was inadequate because the notice referred only to age-restricted housing and "retail/office units" and made no mention of the anticipated restaurant.

Insurance Non-renewal notice, Piermont Iron Works Incorporated v. Evanston Insurance Company, 1/9/2008 (AD)

We construed language in an umbrella insurance policy requiring the carrier, a surplus lines insurer, to send the insured notice of "nonrenewal" at least 30 days prior to the expiration date of the policy.

DWI- Step Down Rule , State of New Jersey v. Thomas Conroy, Jr., 1/9/2008 (AD)

A defendant, who has had three prior convictions for DWI, is entitled to the benefit of the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an uncounseled plea.

Workers' Compensation, Aaliyah N. Alvarado, et al. v. J&J Snack Foods Corp., 1/8/2008 (AD)

When there are competing dependency claims for Workers' Compensation benefits, the employer is required to determine the merits of the competing claims to allocate and pay benefits equitably in order to secure the reduction in petitioner counsel fee awards provided by N.J.S.A. 34:15-64(c). In the event that the equitable allocation is contested, the attorney for the prevailing petitioner is entitled under N.J.S.A. 34:5-64(c) to a fee not to exceed twenty percent of the difference between the benefits initially paid to his client by the employer and the amount of the final award. The $50 limit contained in N.J.S.A. 34:15-64(c) applies only to petitioners who do not secure an increase in benefits following a voluntary tender or payment.

Counsel for Indigent's in DYFS Proceedings, New Jersey Division of Youth and Family Services v. R.G., 1/8/2008 (AD)

The trial court must appoint counsel to represent indigent litigants during all proceedings in an abuse and neglect case. A permanency hearing is not required when a child is placed in the physical custody of a non-abusive parent.

Criminal Law- Identification , State of New Jersey v. Larry R. Henderson, 1/7/2008 (AD)

In this appeal, the Appellate Division reversed the denial of defendant's motion to suppress an out-of-court identification because the Attorney General's "Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures" were materially breached by the investigating officers' intrusion into an eyewitness's examination of a photographic array. The Court concluded that this breach of the guidelines gave rise to a presumption of impermissible suggestiveness and required that a new Wade hearing regarding the reliability of the identification be conducted.

Insurance, Tyrell Hardy, etc. v. Hamza Abdul-Matin, et al., 1/2/2008 (AD)

The Appellate Division held that PIP and UM benefits can be denied to an insured, injured while a passenger in a stolen vehicle, only upon proof that the insured knew or should have known that the car was being driven without the owner's permission.

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