NJ Laws Email Newsletter E261
Kenneth Vercammen, Attorney at Law
November 21, 2007
In This Issue
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1. Retired Judge recommends use of Alcotest 7100 machine.
2. Tort Claims notice must be filed against the correct public entity within 90 days or suit for injury would be barred.
3. Late Notice of claim sometimes permitted
4. Are Your Beneficiary Designations Up to Date?
5. Recent November laws
6. Great upcoming nearby charity races, Call Ken V to discuss carpools
Greetings,
HAPPY THANKSGIVING!
- Show quoted text -
1. Retired Judge recommends use of Alcotest 7100 machine.
The New Jersey Supreme Court released the report of the Special Master, retired Appellate Division Judge Michael Patrick King, regarding State v. Chun (Are alcotest instruments scientifically reliable for establishing blood alcohol levels in prosecutions under N.J.S.A. 39:4-50?). The Court will hold oral argument on Monday, Jan. 7, 2008 at 10 a.m. in the Supreme Court courtroom on the eighth floor, Richard J. Hughes Justice Complex, 25 Market St., Trenton The New Jersey Supreme Court will eventually rule on the case questioning whether alcotest instruments are scientifically reliable for establishing blood alcohol levels in prosecutions under N.J.S.A. 39:4-50.
The New Jersey State Bar Association, through its counsel Jeffrey Evan Gold and Arnold M. Fishman, has announced that it has been an active participant in the case since its petition for leave to participate as an amicus curiae party was granted in December 2005. After the initial round of hearings in the case, the NJSBA argued that the device was reliable provided that certain delineated conditions were met. Judge King's initial recommendations to the Supreme Court in the matter included many of the conditions advocated by the NJSBA.
In his most recent report, Judge King recommends that his initial report be adopted by the Court along with the following additional recommendations:
1. require certification of the alcotest every 6 months instead of 1
year
2. Prohibit the use of BAC evidence in all third test fcases until
the buffer overflow error is corrected in the source code
3. require the illegal opcode trap to be turned on
4. prohibit the use of any A.I.R. with missing data
5. require foundational documents in all cases ebfore a reading
can be admitted, mot just in pro-se cases.
6. require that the NJSBA, through its counsel, be notified of any software changes after the case is over.
The report issued by Judge King can be found at:
http://www.judiciary.state.nj.us/pressrel/supplemental_opinion.pdf
The briefing schedule in the case can at:
http://www.judiciary.state.nj.us/pressrel/Chun_memo_argument_schedule.pdf
2. Tort Claims notice must be filed against the correct public entity within 90 days or suit for injury would be barred.
TORT CLAIMS ACT COLLINS v. EDISON TOWNSHIP HOUSING AUTHORITY Appellate Division, A-3776-06T1, November 9, 2007, not approved for publication.
Dismissal of the plaintiff's complaint with prejudice for failure to timely file a Tort Claims Act notice of claim affirmed; the plaintiff slipped and fell on property owned by the defendant municipal housing authority on June 29, 2005, the plaintiff's attorney mailed a TCA notice of claim to the municipality on December 19, 2005, but he never gave a notice of claim to the housing authority; the Law Division concluded that the housing authority was not a subordinate branch of the municipality and properly dismissed the complaint (1) because the plaintiff did not serve the housing authority with a notice of claim within the 90-day deadline set forth in the Act and (2) because she did not seek leave of the court to file a late notice of claim pursuant to N.J.S.A. 59:8-9; the Law Division did not have jurisdiction under these circumstances because, under the case law, the filing of a notice of claim more than 90 days after the claim accrues without leave of the court is a "nullity"; furthermore, the complaint was filed after the one-year limit for seeking leave to file a late notice of claim under §59:8-9 had expired. Source: NJ Lawyer Daily briefing 11/13/07.
Therefore, if injured, make sure your attorney files a Notice of Claim against all possible defendants within 90 days of the injury.
Under the NJ Tort Claims Act, TCA, a claim of the type involved here cannot be brought against a public entity or public employee unless the procedural requirements of the Act have been followed. N.J.S.A. 59:8-3. The Act provides that "[a] claim for injury or damages...against a local public entity shall be filed with that entity." N.J.S.A. 59:8-7. Regarding the time in which a claim must be presented, N.J.S.A. 59:8-8 provides:
"A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9. (Emphasis added.)
Regarding the filing of notice of late claim, N.J.S.A. 59:8-9 provides:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
The underlying purpose of the notice requirement set forth in N.J.S.A. 59:8-8 is to "expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989). Specifically, the goals of the notice of claim provisions of the TCA are: (1) "to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit"; (2) "to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense"; (3) "to afford the public entity a chance to correct the conditions or practices which gave rise to the claim"; and (4) "to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet."
[Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).] The court said have emphasized that "[t]he filing of a notice of claim more than 90 days after the accrual of a claim without leave of court is a nullity." Priore v. State, 190 N.J. Super. 127, 130 (App. Div. 1983), overruled on other grounds, Moon v. Warren Haven Nursing Home, 182 N.J. 507 (2005). The filing of a notice of claim after the ninety-day period without leave of the court "does not confer jurisdiction upon the court to grant leave to file a late notice of claim beyond the one year period." Ibid. Thus, it is clear that a judge is powerless under the statute to exercise any discretion or to act after a period of one year has elapsed from the date on which the cause of action accrued, where application to the court by motion for permission to file a late notice of claim has not been made within the year.
[Fuller v. Rutgers, State Univ., 154 N.J. Super. 420, 423 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978).]
3. Late Notice of claim sometimes permitted
TORT CLAIMS ACT CASSIDY v. EAST GREENWICH TOWNSHIP, Appellate Division, A-2295-06T5, November 19, 2007, not approved for publication.
Order that granted the plaintiffs' motion to extend the time to file a notice of tort claim under the Tort Claims Act affirmed; the trial court had concluded that the defendant County and the defendant Township had received a timely notice from the two individual defendants that contained all of the necessary information about the plaintiff's claim; the County asserted that the plaintiff's late notice of claim had to be disallowed because the plaintiff failed to demonstrate "exceptional circumstances"; the individual defendants' notice provided the relevant and necessary information about the plaintiff's claim to the County and the Township; the County timely received that notice, which made it aware of the plaintiff's injuries, and the County did not demonstrate any prejudice based on the 25-day delay in receipt of the plaintiffs' notice; based on the totality of the circumstances, the trial court did not abuse its discretion by granting the plaintiff's motion.
Source: New Jersey Lawyer Inc. 11/20/07
4. Are Your Beneficiary Designations Up to Date?
According to Financial expert Saul Simon, most people will agree that it's difficult enough to take care of the necessities of life, let alone the "nice-to-haves." Case in point, when was the last time you reviewed your beneficiary designations for life insurance policies and retirement accounts?
Very likely, the answer is "never."
These documents should be periodically reviewed. Various life events can signal a need to review and possibly change beneficiaries. The article, "Are Your Beneficiary Designations Up to Date?" reviews several scenarios that impact beneficiary designation since originally named.
Call Saul Simon to help you review your Beneficiary Designations and how putting this off today can have a serious impact on your own person planning. If you would like this article sent to you please e-mail Marc at marc.simon@LFG.com.
In the meantime, please give some thought about others you believe could benefit from our work, step out and make a difference in someone's life.
Thank you,
Saul Simon, 399 Thornall Street 12 Floor, Edison, NJ 08837
Phone (732) 623-2070 and Fax (732) 623-2088
5. Recent November laws
TRENTON - Governor Corzine has signed the following laws:
S-222/A-1740) - Prohibits political contributions by all State and local public agencies.
S-1099/A-4146) - Makes it a primary offense for motorists to talk on or text message with hand-held wireless telephone or electronic communication device while driving.
SCS for S-1195/ACS for A-992 - Establishes pharmacy's duty to fill prescriptions for in-stock drugs or devices without delay, notwithstanding sincerely held moral, philosophical or religious beliefs of pharmacist.
S-2506/A - Prohibits candidates from contributing campaign funds to charity in which candidate or candidate's immediate family is an officer or employee or receives compensation for goods or services provided to the charity.
A-439/S-329 - Requires health insurers to honor an assignment of benefits for ambulance service payments under certain circumstances.
6. Great upcoming nearby charity races, Call Ken V to discuss carpools.
11/23/07 - Born to Run 5 mile Freehold Friday Free beer at Court Jester tavern
11/25/07 - Navesink Challenge 15k and 5k, 9am, 5k, 9:10 Middletown, NJ 732-542-6090 Quality JSRC event with Race director Dave Z.
12/1/07 - Metuchen 5k
12/2/07 - Reindeer Romp 5k Point Pleasant plenty of post race food, discount drinks
12/9/07 - Toys for Tots 5k Freehold
12/9/07 - USATF-NJ 10 MILE CHAMPIONSHIP, 11am Mercer County Park, West Windsor, 973-334-890 USATF members only
12/29/07 - Polar Bear Races 5k Asbury Park 5mi Run, 1pm, 732-222-9080 Free Polar Plunge swim in Atlantic Ocean after race.
12/31/07 - JSRC FUN RUN at Bar A
Jan. 5, 2008 - Freezing Cold Hash run, Edison, NJ -Start Ken Vercammen Law Office, 2053 Woodbridge Ave, Edison 732-572-0500 Adventure trail run, not a formal race. Featured on TV News12 NJ and Cablevision.
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KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
