In re Estate of Thomas, ___ N.J. Super. ___ (App. Div. 2013).  Rule 4:85-1 establishes a short time period (four months for New Jersey residents and six months for non-residents, subject to a “reasonable time” exception under Rule 4:50-1) within which anyone who seeks to challenge the probate of a will or the issuance of letters testamentary or of administration, guardianship, or trusteeship must file suit.  In this case, the decedent’s daughter filed a complaint that sought a declaratory judgment that she was the decedent’s child and sole heir, as well as seeking to vacate letters of administration issued to the decedent’s sole surviving brother after he had waited a full year from the decedent’s death to apply for the letters.  The daughter had not received notice of the issuance of those letters since the brother had claimed in his application for those letters that the decedent had no children. read more

Estate of Desir v. Vertus, ___ N.J. ___ (2013).  In this case, which involved the application of premises liability and the rescue doctrine to a tragic shooting death, the Appellate Division reversed the Law Division’s finding that defendant property owner owed no duty to the victim, who had responded to defendant’s request for assistance with “something going on” at his premises.  That “something” turned out to be armed robbery, and plaintiff’s decedent was shot and killed by one of the robbers.  The Appellate Division’s decision is discussed here.  The Supreme Court granted certification.  The Court unanimously reversed the Appellate Division and found for defendant.  read more

The Supreme Court has issued a Notice to the Bar, available here, that reveals the schedule for the introduction of electronic filing in the Appellate Division.  Criminal appeals and motions filed by the Office of the Public Defender, the Office of the Attorney General, and County Prosecutors will be the first to go electronic, in “Spring 2013,” a season that is already upon us.  Next, in “Summer 2013,” will be civil appeals and motions filed by the Public Defender, the Attorney General, and the Law Guardian.  In “Late Summer 2013,” any civil or criminal appeals and any motions filed by any attorney with a collateral (JACS) account will go electronic, followed, in “Fall 2013,” by any appeals and motions filed by any attorney.. read more

Lassiter v. City of Philadelphia, ___ F.3d ___ (3d Cir. 2013).  The initial conference under Federal Rule of Civil Procedure 16 is a time for the court to set a proper course for a case including, in the words of Rule 16, “formulating and simplifying the issues, and eliminating frivolous claims or defenses.”  Here, at the initial conference, “without being prompted by either party, the District Court observed that the statute of limitations appeared to have expired but that defendants failed to raise the issue in their answer.”  Defendants then sought leave to file an amended answer, which was granted over plaintiff’s objection.  Thereafter, defendants moved for judgment on the pleadings on the basis of the statute of limitations.  The district court granted that motion.  Plaintiff appealed, but the Third Circuit affirmed in an opinion by Judge Roth. read more

State v. A.R., ___ N.J. ___ (2013).  This blog does not often report on criminal cases.  But the attached decision, written by Judge Cuff for a unanimous Supreme Court, highlights the invited error doctrine, an important argument on appellate review that can apply in both the civil and the criminal context.  read more

Hernandez v. North Jersey Neurosurgical Assocs., 2013 N.J. Super. LEXIS ____ (App. Div. May 14, 2013).  This decision, in a medical malpractice case, was designated as not precedential, but perhaps should be reconsidered for publication.  It involves the decision of a Presiding Judge of the Law Division to disregard Rule 4:25-4, the designated counsel rule, and require a defendant to go to trial represented by an associate of the designated counsel who specialized in family law, and who admittedly had no expertise in medical malpractice.  The rule itself authorizes disregard of a designation of counsel in proper circumstances.  The judge made that decision in connection with a request to adjourn the seventh (yes, seventh) scheduled trial date, because defendant’s counsel was on trial in a case in another county.  Previous adjournments of trial dates that were stated to be inflexible were granted on requests from both sides, for various valid reasons, including the health of counsel and plaintiff himself.  The request to adjourn the seventh trial date was apparently the last straw.  Once the adjournment request was denied, defendant declined to proceed with its concededly unqualified substitute counsel, and a default was entered against it. read more

Northgate Condominium Ass’n, Inc. v. Hillsdale Planning Bd., ___ N.J. ___ (2013).  Opponents of land use development applications sometimes contest the adequacy of the notice given by development applicants, as occurred in a recent Appellate Division case.  There, the Appellate Division upheld the notice against a claim that it needed to be more specific about the proposed use.  In today’s case, the Supreme Court, speaking through Justice Hoens, rejected a challenge to the adequacy of notice of an application for a conditional use.  That challenge was based on the fact that the lot and block number of the property to be developed was misstated in the notice.  The proper designation was Lot 1, but the notice labeled it as Lot 1.01 and 1.02.  However, the block number was correct, and the notice contained additional language that described the property and its location, stating that the property, which had no street address, was known as “Golden Orchards,” its commonly used name, and that it was located south of a particular road.  read more

Two years ago today, I noted the eloquent words of Justice Pashman in the final paragraph of his opinion for the Court in New Jersey Ass’n for Retarded Citizens v. New Jersey Dep’t of Human Services, 89 N.J. 234 (1982), decided on May 13, 1982, and suggested that they constituted “the most majestic and stirring language ever to appear in a Supreme Court of New Jersey opinion.”  To reiterate, here is what Justice Pashman wrote in that final paragraph: read more