Friday, August 29, 2014
Evicting deadbeat tenants who dont pay the rent in NJ
Bond Required in Administration if no Will in NJ
What is a Surety Bond and why do I need to get one?A surety bond is an insurance policy that protects the beneficiaries and creditors of the estate. Administrators are required by law to obtain a surety bond in order to be appointed. Executors may not be required to obtain a surety bond if the will waives that requirement. Source http://www.co.middlesex.nj.us/surrogate/faq.asp
How do I get a Bond released?The administrator can be released from the surety bond in two ways:
▪ Filing the original refunding bond and release forms from all beneficiaries with the Surrogate Court and stamped copies with the Insurance Company
▪ With the approval of the Superior Court of a formal accounting of the estate
In cases where a decedent leaves no will a personal representative will have to provide a New Jersey administrator bond, also referred to as a New Jersey personal representative bond. The bond is required by the County Surrogate Court or "Will Clerk" and serves as a guarantee of certain fiduciary and legal duties.
Generally an appointed administrator or personal representative will protect a decedent's assets, have them professionally appraised if necessary, pay valid debts and distribute the remaining property as the law directs. The New Jersey administrator bond is requested from the surviving spouse or domestic partner of the intestate deceased, if he or she will accept the administration, and if not or if there is no spouse or domestic partner, then from one oft the remaining heirs of the deceased. If none of these parties will accept letters of administration, then the court is free to appoint who it chooses.
The New Jersey personal representative bond is contemplated under NJ 3B:15-1. The court or surrogate appointing a fiduciary must ensure faithful performance of the administrator's duties by requiring the fiduciary to furnish surety bond to the Superior Court in a sum and with proper conditions and surety, having due regard to the value of the estate to be administered and the extent of his authority. Where specific conditions as to a particular surety bond are prescribed by law, the New Jersey probate bond cannot be approved unless the prescribed conditions are included in the obligation.
The bond form must include certain elements. First, the surety bond guarantees that the administrator will make an accurate inventory of the real and personal property of the decedent which has or shall come to his possession or into the hands of any other person for him, have an appraisal made of the real and personal property, and file the inventory and appraisal in the office of the clerk of the Superior Court or of the surrogate within specific time frames.
Second, the New Jersey personal representative bond guarantees that the administrator will faithfully discharge all of the duties imposed upon him according to law, making an accurate account of his administration of the estate. The surety bond guarantees that the administrator will deliver and pay to the distributees entitled to the same, the surplus property of the decedent as may remain.
Finally, the New Jersey probate bond guarantees that the administrator will deliver his letters of administration to the proper court, when required so to do. An administrator (fiduciary) required by law or order of court to give a surety bond, may include as a part of the lawful expense of executing his duties a bond premium not exceeding one percent (1%) per annum on the amount of the bond and only to a corporate surety authorized under the laws of New Jersey to become surety on commercial bonds.
If at any time it becomes apparent that the New Jersey administrator bond given by a fiduciary at the time of his appointment was insufficient or has become insufficient or the surety appears to be insolvent or insufficient for the security of the estate, the court may order the fiduciary to give other or further security to the Superior Court, by bond in the same form using a different surety company.
The court will discharge a surety on the bond from liability for all acts and omissions occurring after the granting of the discharge if the administrator files a new New Jersey personal representative bond duly approved by the court. The surety may also be relieved by moving the court to do so at any time from three months after the entry of a final judgment of distribution made after the allowance of the final accounting.
Upon proof to the satisfaction of the court that the entire estate has been distributed according to law, and that no appeal from the judgment of distribution is pending, discharge the surety on its New Jersey probate bond for the principal from any and every liability. New Jersey surety leader - See more at: http://www.suretyone.org/blog/new-jersey-administrator-bond/#sthash.hOjK37MN.dpuf
more info at http://njprobate.blogspot.com/2014/05/what-is-surety-bond-in-estate.html
First offenders dismissal program for prostitution charges
Under New Jersey Criminal Statute and Court Rules, someone charged with an indictable criminal offense who has no prior indictable offenses can apply for Pre-Trial Intervention (PTI).
This Statute permits someone under limited instances to have the prosecution stopped and enter into a probation type program. If someone successfully completes PTI, the indictable criminal charge is dismissed.
PTI is not available if the criminal offense is a disorderly person offense, such as simple assault, harassment or shoplifting. For persons facing a first offense possession of marijuana charge, they can apply for a Conditional Discharge. NJSA 2C: 36-1. As a practical matter, in Municipal Courts, the defense attorneys sometimes can work out an agreement with the complainant in a municipal court criminal ticket to have the prosecution put on hold for six months. If the defendant complies with a stipulated agreement, such as staying away from the complainant, after 12 months the criminal charges are dismissed. more info at http://www.njlaws.com/pre-trial_intervention.htm
Sale of House in Probate after parents die
REAL ESTATE TRANSFER SERVICES
We provide representation in the sale of the subject property. I represented the above client at all stages from the review of the initial contract, through review of the title papers, attendance at Closing and assistance in canceling any liens or Mortgages. My usual fee for such representation when the closing is in Middlesex County is $800.00 plus all costs.
Partial list of additional services performed:
Analyze Contract and recommend revisions
Review old Deed, survey
Numerous telephone calls with buyers attorney and other individuals
Numerous correspondence to and from buyers attorney and clients
Preparation of Deed
Preparation of Affidavit of Title
Review Title Binder and Judgment Searches, if applicable
Review RESPA pre-closing, if applicable
More info at http://www.njlaws.com/buying_and_selling_real_estate.html
School bus violation 5 points in NJ and possible community service
NJSA 39:4-128.1 Passing a School Bus - Penalties
www.njlaws.com/passing_school_bus.html?id=913&a=
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 39:4-128.1
39:4-128.1 . School buses stopped for children; duty of motorists; duty of bus driver; violations; revocation of license 1. On highways having roadways not divided by safety islands or physical traffic separation installations, the driver of a vehicle approaching or overtaking a bus, which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity and which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of such highway and until a flashing red light is no longer exhibited by the bus; provided, such bus is designated as a school bus by one sign on the front and one sign on the rear, with each letter on such signs at least four inches in height. On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of a vehicle overtaking a school bus, which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of the highway and until a flashing red light is no longer exhibited by the bus. On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of a vehicle on another roadway approaching a school bus, which has stopped for the purpose of receiving or discharging any child, shall reduce the speed of his vehicle to not more than 10 miles per hour and shall not resume normal speed until the vehicle has passed the bus and has passed any child who may have alighted therefrom or be about to enter said bus. For purposes of this section, "highway" means the entire width between the boundary lines of every way whether publicly or privately maintained when any part thereof is open to the public for purposes of vehicular travel. Whenever a school bus is parked at the curb for the purpose of receiving children directly from a school or a summer day camp or any school connected activity or discharging children to enter a school, or a summer day camp or any school connected activity, which is located on the same side of the street as that on which the bus is parked, drivers of vehicles shall be permitted to pass said bus without stopping, but at a speed not in excess of 10 miles per hour. The driver of a bus which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity shall continue to exhibit a flashing red light and shall not start his bus until every child who may have alighted therefrom shall have reached a place of safety. Any person who shall violate any provision of this act shall be subject to (1) a fine of not less than $100.00, (2) imprisonment for not more than 15 days or community service for 15 days in such form and on such terms as the court shall deem appropriate, (3) or both for the first offense, and a fine not less than $250.00, imprisonment for not more than 15 days, or both for each subsequent offense. The penalties shall be enforced and recovered pursuant to the provisions of chapter 5 of Title 39 of the Revised Statutes. There shall be a rebuttable presumption that the registered owner of the vehicle which was involved in the violation of this section was the person who committed the act. Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of $100. The Director of the Division of Motor Vehicles may also revoke the license to drive a motor vehicle of any person who shall have been guilty of such willful violation of any of the provisions of this act as shall, in the discretion of the director, justify such revocation, but the director shall, at all times, have power to validate such a license which has been revoked, or to grant a new license to any person whose license to drive a motor vehicle shall have been revoked pursuant to this act.
Power of Attorney for your children over 18 in New Jersey when they go to college
Have a Power of Attorney prepared for your college children and children traveling abroad.
There are many good reasons to consider getting a Power of Attorney and Medical Directive for your adult "child". A prominent Monmouth County Law office wrote while you made certain decision for your child before he or she turned 18, you have no authority to take action now. In the event your child becomes ill or has a serious accident while they are away, you do not have legal right to withhold Power of Attorney, it is important to have a plan in place to deal with their health, financial, educational and legal needs.
Durable Power of Attorney to handle finances will enable you to take care of tasks for your child. This includes: registering their car; communicating with their college about issues which fall under HIPAA, like grades and disciplinary actions; completing financial transactions at their bank, their college, etc. If your child runs in to an issue with their passport while they are overseas, you can be assured that you have the authority to help.
Living Will or Health Care Directive is important in the event of an accident or illness. You will be able to talk to medical staff and make decisions on your child's behalf, if necessary.
While you may never need to use these documents, it is better to be safe than sorry!
Fatal Accidents and suspension by the NJ MVC Motor Vehicle Commission
The guilty plea is conclusive evidence of guilt of a moving violation in an Administrative Law case.
Even if the Municipal Court agreed to a civil reservation, the guilty plea is admitted at an AOL hearing the driver's violation of NJ traffic laws.
Municipal Court Rule 7:6-2 sets forth in part.: "Upon the request of the defendant, the court may, at the time of the acceptance of a guilty plea, order that the plea shall not be evidential in any civil proceeding." This is an administrative law case, not a civil proceeding.
On August 27, 2010, in the case State v. Lacey, 416 NJ Super. 123 (App. Div. 2010) the New Jersey Appellate Division ruled that the protections afforded by a civil reservation are limited to those civil actions where the plaintiff seeks to recover money damages. It does not apply to other collateral, civil actions where, for example, the State or other governmental entity is the plaintiff.
The Appellate Division held "Here, the defendant pled guilty to fourth degree abuse of a minor (he slapped his girlfriend's four year old child leaving "red marks" on his face), but argued that the plea should not be used against him by DYFS with respect to visitation or other proceedings that were pending at the time. The court disagreed for two reasons.
First, the judges held that "[a]n action commenced by DYFS is an action by the State against a parent or guardian designed to protect the best interests of the child; it is not an action for money damages or other traditional relief in a 'civil proceeding.'" Thus the reservation would apply if a civil suit was brought by the child's parent for damages arising out of the assault.
Second, when making the civil reservations motion, the defendant has the burden to show a "reason sufficient to warrant the granting of his application." Here the defendant simply made the motion as part of the plea without a basis for barring it in a DYFS proceeding. In addition, the court felt that the "best interest of the child" trumped any rights claimed by the defendant ."
There is also no double jeopardy, since that is also not applicable to an administrative law case.
Discovery is MVC cases- see http://www.njlaws.com/1_1-10_2discovery.html
Challenging the executor who does not wrap up the estate
Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court. A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $225-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
read more at http://www.njlaws.com/removing_the_executor_of_an_estate.html
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.
(3) Payment of plaintiffs attorneys fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.
(5) That the executor be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.
Conditional dismissal and fingerprinting in NJ
more info at https://plus.google.com/105523288807097339409/posts/5m9oVggxNvT
and http://criminalarticle.blogspot.com/2014/05/conditional-dismissal-of-first-offender.html
New law finally establishes a Conditional Dismissal of First offender criminal charges in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.
Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher "Kip" Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing.
"This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around," Bateman said. "The program will help foster participants' rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record." This law also helps Police and Prosecutors since it requires a guilty plea, thus reducing the need for trials and officer testimony.
Tuesday, August 26, 2014
Leaving Scene of accident- mandatory suspension and points
39:4-129. Action in case of accident [Leaving the scene]
39:4-129. (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall
immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in
every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall
be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than
$500 nor more than $1,000 or be imprisoned for a period of 180 days, or both, for the first offense, and for a subsequent offense shall
be fined not less than $1,000 nor more than $2,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment
required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section. more info at http://www.njlaws.com/leaving_the_scene.html
Durable Power of Attorney-Reasons to have a Power of Attorney in NJ
Reasons to have a Power of Attorney in NJ What are these powers of attorney? A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving a spouse, Family member or a close friend, the power to handle your affairs if you become ill or disabled.
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.
Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse, partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.
A Power of Attorney allows your spouse or another person to administer your assets during your lifetime, either upon disability or now. The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs.
New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action.
The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late. more info at http://www.njlaws.com/power_of_attorney.html
Administrator of Estate where there is No will and Renunciation to permit adult child to serve
Avoiding Mandatory Driver's License Suspension in a NJ Possession Case Part 1/2
Consent to Enter Judgment in Eviction Cases where Tenant to Stay and Pay Part 1/2
Defense of Assault Charge when connected to Domestic Violence
Guardianship of Incapacitated Adults
Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouses signature. If a valid power of attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid.
Without a power of attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.read details at http://www.njlaws.com/guardianship_of_disabled_adults.htm
To do:
. Opening of file and offer client information brochures
2. Draft Verified Complaint for Guardianship
3. Prepare Affidavit of Proposed Guardian in Support of Complaint for Guardianship
4. Affidavit of next of kin
5. Prepare AFFIDAVIT OF Doctor 1
6. Prepare CERTIFICATE OF Doctor 2
7. Letters to Doctors to be delivered by client
8. Prepare letter to client enclosing draft documents for client to carefully read
9. Prepare ORDER FOR HEARING
10. Contact client to request client have doctor sign affidavit
11. Attend to proposed Guardian signing complaint
12. Prepare letter to court with signed complaint and 2 doctor certificate
Defense of DWI Blood case
BLOOD TEST "REPORTS" ARE HEARSAY, WHICH MAY BE INADMISSIBLE
Blood test results, documents and papers are writings and thus hearsay. Under the evidence RULE 802. HEARSAY RULE : "Hearsay is not admissible except as provided by these rules or by other law. "
Admission of hearsay which is not admissible under any exception or other law and its use as a foundation for a conviction violates a defendant's Sixth Amendment right to confront witnesses against him. State v Long 255 NJ Super. 716, 726 (Law Div. 1993)
RULE 803. HEARSAY EXCEPTIONS NOT DEPENDENT ON DECLARANT'S UNAVAILABILITY
Detailed information at http://www.njlaws.com/handling_dwi_blood.html
Driver's License Suspension Hearings when involved in a Fatal accident.
Driver's License Suspension Hearings when involved in a Fatal accident.
If there is a fatal car accident in New Jersey, an investigation of the incident, whether performed by the State Police or by local police, shall be completed and forwarded to the director within 72 hours of the time of the accident.The Motor Vehicle Commission can then serve a proposed suspension on the driver if they were involved in the fatal accident and the MVC determined they committed a motor vehicle violation.
The driver can request a hearing in writing. The hearing is held in front an Administrative Law Judge. The following is the applicable statute.
NJSA 39:5-30 Suspension, revocation of registration, license certificates.
Tuesday, August 19, 2014
Leaving Scene of Accident with Property Damage
39:4-129. Action in case of accident [Leaving the scene] 39:4-129. (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall
immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in
every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall
be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than
$500 nor more than $1,000 or be imprisoned for a period of 180 days, or both, for the first offense, and for a subsequent offense shall
be fined not less than $1,000 nor more than $2,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment
required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section. more info at http://www.njlaws.com/leaving_the_scene.htm
No insurance Law 39:6 B-2 amended to provide discretion for no DL suspension
No insurance Law 39:6 B-2 amended to provide discretion for no DL suspension
Under the prior law, a person who commits a first offense of driving without insurance is subject to a fine of between $300 and $1,000, a period of community service to be determined by the court, and loss of driver's license for one year from the date of conviction. Under this amended law, imposition of a driver's license suspension for such a first offense is to be within the discretion of the court, and the period of any such suspension could be from two months to one year from the date of conviction.
The relevant portion of 39:6b-2 reads:
....The court also shall suspend the person's right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction ; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing.
Sale of the House in a Probate Estate
REAL ESTATE TRANSFER SERVICES
We provide representation in the sale of the subject property. I represented the above client at all stages from the review of the initial contract, through review of the title papers, attendance at Closing and assistance in canceling any liens or Mortgages. My usual fee for such representation when the closing is in Middlesex County is $800.00 plus all costs.
Partial list of additional services performed:
Analyze Contract and recommend revisions
Review old Deed, survey
Numerous telephone calls with buyers attorney and other individuals
Numerous correspondence to and from buyers attorney and clients
Preparation of Deed
Preparation of Affidavit of Title
Review Title Binder and Judgment Searches, if applicable
Review RESPA pre-closing, if applicable
More info at http://www.njlaws.com/buying_and_selling_real_estate.html
Sentencing in criminal cases.
Sentencing in criminal cases.
www.njlaws.com/sentencing.html
Kenneth Vercammen's Law office represents persons charged with criminal offenses throughout New Jersey.
The Judge at the time of sentencing always has several options including but not limited to jail, probation, community service, restitution and substance abuse counseling. The Probation Department, which has interviewed you, will prepare what is called a Pre-Sentence Report. This provides information regarding the offense to the Court together with information regarding your background. The judge will also review any letters or documents that are submitted to the Court on your behalf.
If you have a drug charge, the Judge will often have a drug test conducted on the morning of sentencing. If you test positive for illegal drugs, the judge usually will have the defendant locked up.
KENNETH VERCAMMEN &
ASSOCIATES, PC
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
2C:44-1 Criteria for withholding or imposing sentence of imprisonment. 2C:44-1. a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:(1)The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;(2)The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;(3)The risk that the defendant will commit another offense;(4)A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;(5)There is a substantial likelihood that the defendant is involved in organized criminal activity;(6)The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;(7)The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;(8)The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;(9)The need for deterring the defendant and others from violating the law; (10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;(11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;(12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and(13) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.
Saturday, August 2, 2014
Dog Bite Law and Recovery for Personal Injury by Kenneth Vercammen, Esq....
Vercammen Law Office
2053 Woodbridge Ave.
Edison, NJ 08817
Dog Bite Law and Recovery for Personal Injury If someone hops your fence, trespasses on your land, and your dog bites him, you are not liable. However, New Jersey does impose strict liability if your dog bites someone if it is loose or if the person bitten was in a public place or permitted on your property. NJSA 4:19-16 provides:
"The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness."
"For the purpose of the New Jersey Statute 4:19-16, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof."
Thus, in New Jersey, a dog does not get two bites.
A person can even be liable if your dog injures someone although not biting it. Being jumped on or chased by a dog could be grounds for a civil liability. It is also strict liability if any of your dangerous animals injure someone, i.e. pet, buffalo or tiger.
For the purpose of this state law, a person is lawfully upon the private property of such owner when he/she is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he/she is on such property upon the invitation, express or implied, of the owner thereof.
In deciding whether the plaintiff was on or in a public place or lawfully on or in a private place, including the property of the defendant, you should note that anyone whose presence is expressly or impliedly permitted on the property is entitled to the protection of the statute. The permission extends to all areas where the plaintiff may reasonably believe to be included within its scope. DeRobertis v. Randazzo, 94 N.J. 144 (1983).
In a case such as this where the defendant has raised the negligence of the plaintiff as a defense, the defendant has the burden of proof. This means that the defendant has the burden to prove plaintiff's "unreasonable and voluntary exposure to a known risk." This means that the plaintiff "knew" the dog had a propensity to bite either because of the dog's known viciousness or because of the plaintiff's deliberate acts intended to incite the animal. For example, one who beats or torments a dog has no call upon the owner if in self-defense the dog bites back. Budai v. Teague, 212 N.J. Super. 522 (Law Div. 1986); see also Dranow v. Kolmar, 92 N.J.L. 114, 116-17 (1918). In conclusion, a New Jersey dog does not get two bites. Keep your dog fenced in or tied up and away from mailman and visiting friends. more info at http://www.njlaws.com/dog_bite_injuries.html?id=194&a=
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