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RECENT NEWS
New Jersey Supreme Court to Review New Notice Requirements for Land Use Applications Imposed by Appellate Division -
The New Jersey Supreme Court has agreed to consider arguments that the Appellate Division improperly imposed new,
subjective notice requirements on developers applying for local land use approvals. On November 13, 2009, the Court
granted the petitions for certification filed by a developer, American Properties, and the Ewing Township Planning
Board, seeking to challenge the Appellate Division's decision in GF Properties v. Ewing Township Planning Board.
Hill Wallack LLP has filed a
"friend of the court" brief with
the New Jersey Supreme Court on
behalf of the New Jersey
Builders Association and NAIOP
NJ Chapter, Inc.
Click here to read more.
Local Units Must Adopt Identity Theft Policy to Comply with Newly Effective FTC Regulations -
Any local unit that operates a utility or other activity that extends credit (i.e. bills consumers for utility services
after they are received) must adopt an identity theft policy as required by the United States Federal Trade
Commission (“FTC”). In response to the growing threat of identity theft, FTC regulations, effective as of August 1, 2009,
require local utilities and those local units extending credit to adopt “red flag” practices that are intended to prevent
and highlight potential instances of identity theft.
Click here to read more.
Communication Data Warrants Are Not Subject to Wiretap Limits in New Jersey -
In order to obtain a wiretap warrant for telephone communications, such warrants must be specific as to the dates and
times of execution. Not so with data wiretaps used to monitor internet activity, according to a recent decision of
New Jersey's intermediate appellate court. In State v. Finsesmith, the Appellate Division of the Superior Court
held that Communication Data Warrants are not subject to date and time limitations.
Click here to read more.
Is a Levy Void if a Writ is Directed to the Wrong Sheriff? You Better Make
Sure That the Writ is Right - If a party that obtains a judgment against a defendant has a writ issued to a
Sheriff of a certain county and then has the sheriff levy upon personal property or real property in accordance with
the writ, such levy can be considered void if the writ of execution is issued to the improper sheriff.
In the matter of Borromeo v. DiFlorio, 2009 WL 2391850 (App. Div. 2009), the Appellate Court addressed a
matter where the plaintiff had a Writ of Execution directed to the Sheriff of Mercer County and the plaintiff then
sent the Writ to the Somerset County Sheriff. The plaintiff then directed the Somerset County Sheriff to
levy on the Defendant’s real property within Somerset County.
Click here to read more.
Shrinking Employer Liability Under Title VII - Last month the United States
Court of Appeals for the Third Circuit in Huston v. The Procter & Gamble Paper Products Corporation
clarified which employees
qualify as “management level” in
the context of Title VII hostile
work environment claims. A
person responsible for the mere
oversight of an employee's
assignment or task may not be
considered "management."
Click here for more
information.
New Jersey Supreme Court Holds That Defendants Can Withdraw Guilty Pleas if Not
Advised by Counsel That Pleading Guilty Can Result in Deportation - The New Jersey Supreme Court recently held in
the case of State v. Nunez-Smith, that if a defendant is misinformed about immigration consequences of
pleading guilty to criminal charges (which may result in deportation), said guilty plea may be withdrawn.
This decision will have clear and far reaching implications for the state and criminal defense attorneys alike.
Click here to read more.
Search and Seizure of Juvenile’s Possessions Deemed Lawful as Incident to his Arrest for Violation of Municipal Curfew Ordinance -
Actions of police officers are highly scrutinized in today’s society. One context in which officers walk a fine line is
deciding when a lawful search and/or seizure can occur. Adding juveniles to the mix complicates things even more.
However, a recent search and seizure of a juvenile in Hazlet, New Jersey makes at least one thing clear: a juvenile on the
streets after curfew without proper identification is going to result in a valid search, and lawful seizure of any
illegal or stolen property found during that search.
Click here to read more.
A Perceived Campaign for Termination of an Employee is Not a Basis for a Claim for
Age Discrimination Under the New Jersey Law Against Discrimination - In Finn v. J.B. Hunt Transport Services, Inc.,
the District Court of New Jersey recently concluded that there was no evidence of age discrimination under the New Jersey
Law Against Discrimination (NJLAD), despite allegations that the employee’s new supervisor “campaigned” to terminate the
plaintiff-employee.
Click here to find out more.
The Power of the School PTA: Privacy Rights of Students Limited by Appellate Court -
Privacy claims by students in New Jersey schools have sparked heated debates regarding student searches, as well as
the searches of their personal property and school lockers. Several parties may be involved in such a scenario –
students, parents, teachers, school administrators and school boards. A recent court case takes this debate one step
further – into the realm of privacy issues related to student performances in school plays and the role of parent teacher
associations (PTAs). The Appellate Division of New Jersey’s Superior Court recently addressed these issues in
Jeffries v. Whitney E. Houston Academy PTA, a case concerning the videotaping of student performances and
how those videotapes are subsequently utilized.
Click here to read more
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Courts May Allow Juries To Hear Testimony From Qualified Medical Experts Who Do Not
Personally Review MRI Films - On August 6, 2009, in Drinkard v. Hernandez (“Drinkard”) (unpublished opinion),
the Appellate Division of the Superior Court of New Jersey concluded that the trial court abused its discretion when it
barred the testimony of the defendant’s medical expert (an orthopaedic surgeon, Dr. Bachman) at the time of trial.
Plaintiff sought to bar the expert on the basis that the doctor did not personally review the MRI films he was commenting
upon.
Click here to read more.
Loss of Evidence Can Lose Your Case Before It Begins - Most people know that
to prove one’s position in a lawsuit, evidence is necessary. But must a party preserve evidence even before a lawsuit is
filed? If the party reasonably should know that the evidence is important to the potential lawsuit, the answer is yes.
Click here to read more.
New Proposed Legislation Would Decriminalize “Sexting” by Teenagers -
“Sexting” is the e-mailing by minors of nude or sexually suggestive photos of themselves to friends.
Two new bills A-4069 and S-2926 would create a program in which minors charged with creating and
distributing such photos would avoid prosecution by completing a course that highlights the dangers of engaging
in such activity.
Click here to find out more.
Judicial Notice: How It Should Not Be Used - Contested facts in a dispute
between parties to a suit can not be admitted into evidence through judicial notice, as it deprives a party of its
right of cross examination. This was the conclusion of the Appellate Court in the case of
Palisades Collection, L.L.C. v. Graubard, 2009 WL 1025176. The Appellate Court further addressed the
impact of a court admitting a contested fact by judicial notice by determining that it is critically important
that a contested fact not be admitted through judicial notice when doing so would conclusively determine the
central issue of the case.
Click here to read more
Third Circuit Holds Trial Court May
Consider Settlement Discussions to Calculate
Attorney's Fees Award - Rule 408 of the Federal Rules of Civil Procedure bars the introduction of settlement
discussions at trial where such evidence is offered to prove the merit, or lack of merit of a claim, and/or the value of
a disputed claim. While Rule 408 specifically provides that evidence of settlement discussions is not precluded when
offered for some other purpose, the Rule does not include a comprehensive list of examples of such “purposes not
prohibited.” Consequently, many exceptions to the general prohibition of Rule 408 have been developed via federal
common law. Most recently, in Lohman v. Duryea Borough, the Third Circuit held, in a case of first impression,
that Rule 408 does not prohibit a trial court from considering settlement discussions between the parties for purposes
of calculating an award of attorney’s fees.
Click here to read more.
Lawyer’s Beware!: Telling An Opposing Party “I’m Going to Cut You Up”
Followed By Threatening Letter to Opposing Counsel Will Result In Reprimand. - The New Jersey Supreme Court
recently disciplined a lawyer, Joel Ziegler of Maplewood, New Jersey, who allegedly told an opposing party
“I’m going to cut you up into bits and pieces, put you into a box and send you to India and your
parents won’t recognize you.” The Supreme Court found that Mr. Ziegler violated rules regarding requiring
courtesy to participants in the legal process and prohibiting conduct detrimental to the administration of justice.
Click here to find out more.
New Jersey Court Holds That Gun Dealer May Be Held Liable For Shooting Of
Police Officer Where Perpetrator Used Stolen Weapon. - In a case of first impression in New Jersey, a Morris
County Superior Court Judge has refused to grant statutory immunity to a gun dealer sued when an ex-employee stole a
handgun from his employer dealer and shot a police officer.
Click here to read more.
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