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STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — CASINO EMPLOYEES 01-2-2749 State, Dept. of Law and Public Safety, etc. v. Vuong, App. Div. (per curiam) (8 pp.) Rejecting the appellant’s contentions that impermissible hearsay undergirded the final decision, and that the evidentiary standards governing the proceedings violated fundamental fairness and due process, the panel affirms the final decision of the Casino Control Commission revoking appellant’s casino key employee license and prohibiting his employment by a casino in any capacity, based on the credible evidence that showed that he had misappropriated $20,000 that a third party gave him to reduce that party’s wife’s gambling debt to appellant’s casino employer. [Decided Feb. 6, 2003.] AGENCY — AUTOMOBILE NEGLIGENCE 02-3-2815 Maxwell v. DeCicco, Law Div. (Himmelberger, J.S.C.) (1 page) The court grants the summary judgment motion of defendant DeCicco, owner of the vehicle into which the plaintiff drove his all-terrain vehicle in the accident in question, since defendant has successfully rebutted the presumption of agency, which arose as a result of her son’s use of the vehicle on the night in question; defendant gave the car to her son to help a friend move, and he was using the car for his own purposes, not running any errands for her. [Decided Jan. 24, 2003.] ARBITRATION — DE NOVO REQUESTS 03-2-2768 Filarte, et ux. v. Low, et ux., App. Div. (per curiam) (3 pp.) In this automobile negligence case, the Law Division erred in confirming the arbitration award on defendants’ motion, where plaintiffs timely filed their de novo request with the court, but did not serve the defense attorney until the 35th day, although they thought they had timely served him; there was no prejudice to the defendants and plaintiffs showed substantial compliance. [Decided Feb. 7, 2003.] ATTORNEY/CLIENT — FEE ARBITRATION — STAYS 04-2-2750 Gechtman, Esq. v. Eisenberg, App. Div. (per curiam) (4 pp.) The court below did not abuse its discretion in staying a fee arbitration award in favor of the plaintiff-attorney, which award had been subsequently confirmed by a judgment, pending disposition of the legal-malpractice claim filed separately and subsequently by defendant; it is not at all clear that defendant knew of the basis of her negligence claim during the fee arbitration process; and the trial court’s error in not evaluating the merits of the malpractice claim before issuing the stay was harmless under the circumstances. [Decided Feb. 6, 2003.] ATTORNEY/CLIENT — FEES — LIENS 04-3-2816 Angelou v. Vroulis, Law Div. (Himmelberger, J.S.C.) (2 pp.) Rejecting plaintiff’s claim that the movant-attorney is not entitled to any fee at all, the court grants the motion of movant — plaintiff’s former personal-injury attorney, relieved as counsel due to “irreconcilable differences” — and sets the attorneys’ fees pursuant to the parties’ contingency fee agreement, and impresses a lien on the proceeds of the settlement of the action; the case was ultimately settled by current counsel for the same amount the former attorney had negotiated, and plaintiff had refused to accept; in fact, movant’s attempts to get plaintiff to accept the settlement led to the breakdown of their relationship. [Decided Jan. 10, 2003.] CIVIL PROCEDURE — DISMISSALS 07-2-2751 New Century Financial Svcs., Inc. v. Brennan, App. Div. (per curiam) (3 pp.) The failure of plaintiff — purchaser of distressed debt and the assignee of a past due credit-card obligation allegedly owed by defendant — at a minimum, to determine whether its trial-adjournment request had been granted supported the judge’s dismissal of the action when plaintiff failed to appear; however, the panel is of the view that the interests of justice require that the complaint be reinstated so that the merits of the dispute can be resolved on the merits. [Decided Feb. 6, 2003.] CIVIL PROCEDURE — RELIEF FROM JUDGMENT 07-2-2770 Folz, et ux. v. Atlantic City Hilton Resort, et al., App. Div. (per curiam) (5 pp.) The court below properly granted summary judgment to the defendants and dismissed plaintiffs’ casino fall-down complaint because plaintiffs failed to file opposition and their request for another adjournment of the motion was denied; if plaintiffs’ motion to vacate was considered a motion for reconsideration, it was untimely; if it was considered a motion for relief from judgment under R. 4:50-1(a) and (f), the judge considered the applicability of those rules and found that plaintiffs had not demonstrated exceptional circumstances required to overturn the order, where counsel relied on the fact that his adjournment request would be granted, and failed to follow up to confirm that fact. [Decided Feb. 7, 2003.] CIVIL PROCEDURE — VACATING DEFAULT JUDGMENT — CONTRACTS 07-2-2788 Peter and Peter, Inc. v. Mulligan, App. Div. (per curiam) (4 pp.) Irrespective of whether there was excusable neglect shown for defendant’s nonappearance at trial, the judge correctly refused to vacate the default judgment against him, concluding that there was no meritorious defense shown, as defendant was not relieved from his agreement with the plaintiff-restaurant by the server’s billing error as to the wines served and consumed at the contracted-for luncheon; defendant had agreed that he would pay the price of the wine he had preselected and that was, in fact, consumed; the bill presented by the server was based on an inadvertent mistake, which defendant should have known was erroneous. [Decided Feb. 10, 2003.] CONTRACTS — EVIDENCE — DAMAGES 11-2-2753 Swintec Corp., etc. v. Daewoo Intl., etc., et al., etc., App. Div. (per curiam) (32 pp.) In this action sounding in breach of contract, fraud and breach of warranty, where plaintiffs’ claims arose out of their purchase of facsimile machines from defendant over a six-year period, the appellate panel affirms the jury verdict in plaintiffs’ favor in the amount of almost $7 million, plus almost $900,000 in favor of each of plaintiff’s factory distribution centers, rejecting defendants’ contentions that (1) the jury improperly awarded damages for lost profits; (2) the trial court erred in submitting to the jury the issue of equitable estoppel; (3) admission of evidence relating to defendants’ SF530 series of fax machines was reversible error; (4) the breach-of-contract claim should not have been presented to the jury; (5) plaintiffs had no cognizable third-party beneficiary claims; and (6) the evidence did not support a breach of express warranty cause of action or the jury’s finding that the subject machines were not merchantable. [Decided Feb. 6, 2003.] CONTRACTS — HEALTH CLUBS — FEE INCREASES 11-2-2789 Kulick v. Spa Lady, App. Div. (per curiam) (4 pp.) The trial judge correctly found that the defendant’s attempt to raise plaintiff’s annual spa dues from $18 to $37 per month violated the 10 percent limitation in the parties’ contract, notwithstanding the fact that defendant had not raised the dues at all in prior years; however, the judge’s damages award was flawed, as it was, at least in part, premised on the plaintiff’s right to continue recovering from defendant in futuro and indefinitely. [Decided Feb. 10, 2003.] CORRECTIONS — PAROLE 13-2-2771 Somerville v. N.J. State Parole Bd., App. Div. (per curiam) (3 pp.) The Parole Board aptly denied appellant parole and set a 24-month future-eligibility term, concluding that there was a substantial likelihood that appellant — convicted of murder, kidnapping, aggravated assault and weapons charges — would commit a new crime if released; appellant has an extensive and repetitive serious criminal record, much of which occurred when he was on probation or parole on other occasions. [Decided Feb. 7, 2003.] CRIMINAL LAW AND PROCEDURE — EXPERT TESTIMONY 14-2-2766 State v. Milton, App. Div. (per curiam) (11 pp.) The Law Division judge erred in granting defendant a new trial on the ground that certain expert testimony about the orchestration and “steering” of drug investigations, to which there had originally been no objection, prejudiced defendant’s right to a fair trial; the testimony was admissible, and the court disagrees with the judge’s conclusions that exclusion was warranted under N.J.R.E. 403, or as a matter of plain error under R. 2:10-2. [Decided Feb. 6, 2003.] CRIMINAL LAW AND PROCEDURE — LESSER-INCLUDED OFFENSES 14-2-2785 State v. Jackson, App. Div. (per curiam) (5 pp.) Under the circumstances of this case, where defendant allegedly threatened to shoot the complainant and her baby, it was error for the trial judge to deny defendant’s request to charge the petty disorderly offense of harassment as a lesser-included offense of terroristic threats; a reasonable jury could have found that defendant’s purpose was not to put the victim in imminent fear of death, but rather to annoy or alarm her. [Decided Feb. 7, 2003.] CRIMINAL LAW AND PROCEDURE — SEARCH AND SEIZURE 14-2-2767 State v. Velez, App. Div. (per curiam) (9 pp.) The trial judge erred in granting defendant’s motion to suppress cocaine seized from the front seat of defendant’s vehicle by a group of undercover officers acting on a tip that he would be delivering cocaine to an informant; while the informant was of unknown reliability, much of the information he provided was corroborated by a detective who listened on the phone extension, independently hearing the arrangements for the drug transaction as the deal was being made; and, while defendant engaged in no overtly suspicious behavior up until the time he was arrested, his arrival in the vehicle that had been described, with the license plate letters described, at the time and place agreed on was hardly mere coincidence. [Decided Feb. 6, 2003.] DAMAGES — EXPERT’S REPORTS — LOST PROFITS 60-3-2817 Gardner v. Bank of America, Law Div. (Himmelberger, J.S.C.) (2 pp.) In a bifurcated case wherein a jury has already found that defendant interfered with plaintiff’s prospective economic advantage, the court denies plaintiff’s motion seeking to permit introduction of an expert’s report to the jury for calculation of the inflationary value of plaintiff’s lost profits; this is purely and simply a tort action, and the court has no discretion to deviate from the rules when awarding prejudgment interest on judgments derived from such actions. [Decided Jan. 10, 2003.] ENVIRONMENT — CHALLENGES — COUNSEL FEES 17-2-2772 Nuckel v. Abrams, et al., App. Div. (per curiam) (5 pp.) In the absence of statute or rule, the court aptly applied the American rule and concluded that plaintiff — a neighboring landowner who challenged the Department of Environmental Protection’s issuance of various permits to the defendant-developers — was not entitled to recover counsel fees and litigation costs from the developers, even though he prevailed before the DEP on one aspect of his challenge. [Decided Feb. 7, 2003.] EVIDENCE — E-MAIL — PRIVILEGE 19-3-2818 Campo South Jersey v. Delsener Slater-SFX, et al., Law Div. (Walsh, J.S.C.) (3 pp.) The defendant seeks return of certain evidence, claiming that it inadvertently disclosed an attorney-client privileged e-mail communication from one of its employees to its in-house counsel; plaintiff claimed that e-mail is not privileged, or that, in any event, any privilege was waived by defendant’s having distributed the e-mail without the proper precautions to protect that privilege. The judge grants the defendant’s motion, finding that the e-mail is subject to the attorney-client privilege, and that the privilege was not waived by distributing the materials in a careless manner. Moreover, the judge finds that there is no credible evidence that the privilege was lost because of the crime/fraud exception. [Decided Jan. 31, 2003.] FAMILY LAW — ALIMONY 20-2-2754 Garbaccio v. Garbaccio-Scherillo, App. Div. (per curiam) (6 pp.) The Family Part judge aptly awarded defendant permanent alimony in the amount of $1,250 per month in this matter, which was remanded for further findings about defendant’s income and the respective needs of the parties; the court rejects plaintiff’s assertions that the court misinterpreted the tax consequences of the award, overstated defendant’s needs, failed to impute income to defendant, failed to impute minimum wages to defendant and inappropriately made its award retroactive to the date of the original alimony award. [Decided Feb. 6, 2003.] 20-2-2790 Oh v. Oh, App. Div. (per curiam) (9 pp.) The Family Part judge justly denied plaintiff’s request for a reduction in his alimony obligation, concluding that, even though his psychiatric practice had been drastically reduced as a result of Medicaid ineligibility, his net income did not substantially decrease, and that, even with a 50 percent deduction for operating expenses, he would still be able to earn more than he had at the time of the divorce; moreover, plaintiff failed to document many of his expenses or supply any economic records for certain periods. [Decided Feb. 10, 2003.] FAMILY LAW — CHILD SUPPORT 20-2-2755 Brattstrom v. Brattstrom, App. Div. (per curiam) (5 pp.) In this case where plaintiff had to file a series of motions for relief based on defendant’s continued resistance to, and noncompliance with, the terms of the divorce judgment, the panel finds no error in any of the lower court’s orders (1) granting plaintiff’s application for an increase in child support, calculated in accordance with the guidelines, and fixing arrearages; (2) fixing attorneys’ fees; (3) providing for defendant’s visitation; (4) requiring defendant to continue with his medications and blood monitoring; (5) modifying custody to joint custody; and (6) ordering the issuance of a bench warrant if defendant missed even a single child-support payment. [Decided Feb. 6, 2003.] 20-2-2791 Liberatore v. Beck, App. Div. (per curiam) (10 pp.) The panel reverses the order that granted plaintiff’s motion for an increase in child support, but set the amount well below the child-support guidelines, and made it retroactive only to the date of plaintiff’s most recent motion, instead of her original application one year and three months earlier; a plenary hearing must be held on remand to consider both the quantum of support in light of the guidelines and the retroactivity date in light of principles of equity and fairness. [Decided Feb. 10, 2003.] 20-2-2792 Klett v. Klett, App. Div. (per curiam) (6 pp.) Defendant’s post-judgment motion for an upward modification of the carefully crafted child-support provisions of the parties’ property settlement agreement was properly denied, the court rejecting her contention that the maturation of the three unemancipated children, by itself, constituted an adequate showing of increased need; the application was obviously triggered by the emancipation of the oldest child, and consequent reduction in the monthly receipts of the household, but there was no indication that the three unemancipated children suffered any deprivation from the current support payment; nor were any of their reasonable material desires unmet. [Decided Feb. 10, 2003.] 20-2-2793 Sampeur v. Sampeur, App. Div. (per curiam) (3 pp.) The judge appropriately exercised her discretion in denying defendant’s request to hear arguments on the issue of his visitation rights during plaintiff’s child-support application; she also properly ordered garnishment on both children’s support accounts in light of defendant’s refusal to make direct payments on both. [Decided Feb. 10, 2003.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-2756 I/M/O Stroup v. Ehehalt, App. Div. (per curiam) (6 pp.) The final restraining order is reversed, the court finding that the judge’s inference of a purpose on defendant’s part to annoy or alarm plaintiff, his ex-fianc�e, arising out of a single incident of his seeking out and speaking with her former boyfriend, is insufficient to establish a necessary element of harassment under the act; given the time, manner and place of the contact between the two men, the most that can be said is that the former boyfriend might have had a basis to complain, but it did not extend to plaintiff. [Decided Feb. 6, 2003.] FAMILY LAW — REMOVAL 20-2-2794 Batt, etc. v. Batt, App. Div. (per curiam) (9 pp.) Contrary to plaintiff’s argument, the trial judge obviously was aware of, and considered, the Baures ruling on the standards for removal, and understood and applied the correct burden of proof and the elements of that proof to this case; the record supports the judge’s finding that, while plaintiff established a good-faith reason for her proposed move to Maryland, the move was inimical to the best interests of the child for a number of reasons. [Decided Feb. 10, 2003.] GOVERNMENT — OPEN PUBLIC MEETINGS ACT — QUASI-PUBLIC CORPORATIONS 21-3-2804 Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., Law Div. (Feinberg, A.J.S.C.) (67 pp.) In a case of first impression, the judge dismissed a media suit seeking access to the defendant’s meetings, ruling that defendant, a redevelopment agency, although created and controlled by a municipality, does not meet the definition of a public body under the Open Public Meetings Act. [Decided Feb. 3, 2003.] INSURANCE — INTERCOMPANY ARBITRATION 23-2-2758 Market Transition Facility of N.J. v. St. Paul Fire & Marine Ins. Co., App. Div. (per curiam) (6 pp.) The award in this intercompany arbitration matter was entered in violation of the rules of Arbitration Forums, Inc., which preclude entry of a default judgment; even if the arbitrator did not award plaintiff all that it was seeking, this does not mean that the award was not entered by default, as argued by plaintiff. The failure of the AFI to comply with its own rules is an imperfect execution of the arbitrator’s power for purposes of N.J.S.A. 2A:24-8, and the award was properly vacated. [Decided Feb. 6, 2003.] INSURANCE — REFORMATION 23-2-2760 Toner v. State Farm Ins. Co., App. Div. (per curiam) (9 pp.) The trial judge aptly rejected the argument of plaintiff that the commissioner of the Department of Insurance abrogated the notice requirements of N.J.S.A. 39:6A-23 by approving the use of a simplified form for insureds to continue their insurance coverage with State Farm Indemnity Co. after State Farm Mutual Automobile Insurance Co. left the New Jersey market in 1992; plaintiff, who was involved in a 1996 accident, sought reformation of the $15,000 UM/UIM limits upward to match his policy’s $100,000 liability limit, but the judge properly rejected his arguments and granted summary judgment to the defendant. [Decided Feb. 6, 2003.] INSURANCE — VERBAL THRESHOLD 23-2-2773 Giacobbe v. Mehta, et al., App. Div. (per curiam) (2 pp.) Plaintiff, a college student, failed to prove that her soft-tissue neck, back, shoulder and arm injuries satisfied the verbal threshold category 9 where she never missed any college classes as a result of an accident-related condition. [Decided Feb. 7, 2003.] INSURANCE — VERBAL THRESHOLD — RECONSIDERATION 23-3-2819 Nottingham v. Scandone, Law Div. (Himmelberger, J.S.C.) (2 pp.) The judge denies plaintiff’s motion for reconsideration of the prior grant of summary judgment to the defendant, concluding that plaintiff has failed to get around the need for a comparative analysis with her present medical submission — a doctor’s report suggesting that fibromyalgia, the underlying and allegedly aggravated condition, is one that is subject to exacerbation, but that such exacerbation cannot be objectively verified. There is no explanation why this opinion could not have been brought out during the argument on the summary judgment motion; and the judge finds that plaintiff’s submission is a misuse of the reconsideration practice to use the court’s prior decision as an educational tool, then to submit that which should have been produced in the first place in the guise of “reconsideration.” [Decided Jan. 10, 2003.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-2775 Koll v. Bd. of Review, etc., et al., App. Div. (per curiam) (3 pp.) Claimant was properly held to have left work voluntarily without good cause related to the work when she became disenchanted with the way her employer addressed her and with his criticism of her actions; although the employer attempted to meet with claimant to discuss their problems, she refused and left the job. [Decided Feb. 7, 2003.] 25-2-2776 Buttros v. Bd. of Review, App. Div. (per curiam) (4 pp.) The claimant was unjustly held to have left work voluntarily without good cause where she accepted early retirement as the only way to secure health benefits with an accompanying prescription plan; the panel holds that the threat of loss of prescription benefits would be a significant economic loss and justified claimant’s leaving her employment. [Decided Feb. 7, 2003.] 25-2-2777 Broderick v. Bd. of Review, App. Div. (per curiam) (6 pp.) Claimant was disqualified from further receipt of benefits for the alleged illegal receipt of benefits based on false or fraudulent misrepresentation and appealed; here, the panel concludes that the Board of Review properly dismissed claimant’s appeal because it was untimely by more than a year; no reason for late filing was submitted by claimant to the board prior to its dismissal, and claimant could not, therefore, demonstrate the required “good cause” for the late appeal. [Decided Feb. 7, 2003.] 25-2-2778 Lewis v. Bd. of Review, App. Div. (per curiam) (9 pp.) The claimant here was properly denied additional unemployment compensation benefits during training (ABT), as she was not permanently separated from employment due to a substantial reduction in work opportunities in her job classification at her former work site; additionally, the ineligibility was based on claimant’s separation from her prior base year employment due to absenteeism. [Decided Feb. 7, 2003.] LAND USE — VARIANCES 26-2-2763 Foley, et ux. v. Zoning Bd. of . . . Hanover, et al., App. Div. (per curiam) (19 pp.) Over the objection of plaintiff-neighboring homeowners, the court concludes that the applicant was justifiably granted a subsection c(1) variance, permitting it to construct a residence on an isolated, undersized lot, the board of adjustment finding, in a comprehensive and factually detailed resolution, that the applicant demonstrated all of the necessary positive and negative criteria required for such a variance. [Decided Feb. 6, 2003.] LANDLORD/TENANT — LOCKOUTS — DAMAGES 27-2-2779 Stafford, et al. v. Shurkin, etc., App. Div. (per curiam) (4 pp.) Although the tenancy court judge was correct in finding that the landlord’s changing of the locks on the demised commercial premises, without notice to the tenant, was an improper lockout, he erred in awarding the tenant anything other than nominal damages; damages must be proximately caused by the wrong in question, and here, the only damages the tenant sought were by way of reimbursement for the renovations she made to the property to ready it for her business. Since the tenant never paid the rent or occupied the premises, and did not oppose nor appeal from the judgment for possession obtained by the landlord, she suffered no actual damages from the lockout. [Decided Feb. 7, 2003.] LANDLORD/TENANT — VACATING DEFAULT JUDGMENT 27-2-2796 United Veil Dyeing & Finishing Holding Co. v. Grand Union Enterprises, Corp., App. Div. (per curiam) (3 pp.) The judge aptly denied the defendant-commercial tenant’s motion to vacate a default judgment entered against it in this summary dispossess action for nonpayment of rent, as defendant failed to show a meritorious defense to the action; defendant’s representative was present on both scheduled trial dates, and nothing was presented to dispute that defendant was delinquent in its rent. [Decided Feb. 10, 2003.] MUNICIPAL LAW — DE-ANNEXATION 30-3-2820 Avalon Manor Improvement Assn., Inc. v. Twp. of Middle, Law Div. (Perskie, J.S.C.) (9 pp.) Although the plaintiff did establish a detriment to the economic and social well-being of its residents with respect to the dredging and flood plain issues asserted, and, of course, with regard to the tax savings that would accrue from de-annexation from Middle Township and annexation to adjoining Avalon, the township did not act arbitrarily or unreasonably in considering these insufficient to justify de-annexation, especially in light of the “significant injury” that the de-annexation would inflict on the remaining taxpayers of the municipality. [Decided Jan. 24, 2003.] NEGLIGENCE — PREMISES LIABILITY — PARKING LOTS 31-2-2797 Nimaroff v. Great Atlantic & Pacific Tea Co., App. Div. (per curiam) (10 pp.) The owner of a supermarket does not have a duty to provide security in its parking lot to protect its customers from the criminal acts of third parties where any prior criminal incidents were confined largely to shoplifting occurring within the store itself. [Decided Feb. 10, 2003.] NEGLIGENCE — PREMISES LIABILITY — POOLS 31-2-2798 Bono v. Sharp, et ux., App. Div. (per curiam) (8 pp.) Plaintiff was injured as she attempted to climb out over the side of the above-ground pool of defendants — her mother and stepfather — because she had felt, when entering the pool, that the ladder (assembled and installed by her stepfather) was unstable. The judge properly dismissed plaintiff’s personal-injury complaint, concluding that the plaintiff could not, without expert testimony, show a basis for the conclusion that the ladder was not properly assembled or installed. Moreover, even if the ladder and uneven land underneath it created a dangerous condition, plaintiff herself experienced the condition and was well aware of the peril. She opted to climb out of the pool not by using the ladder, but by climbing over the ledge and jumping to the ground; defendants owed her no legal duty to warn under these circumstances. [Decided Feb. 10, 2003.] PARENT/CHILD — ABUSE AND NEGLECT 28-2-2780 State of N.J. D.Y.F.S. v. J.K. Sr.; I/M/O M.K., a Minor, App. Div. (per curiam) (7 pp.) The appellant was justifiably found to have abused or neglected his granddaughter — including acts of fondling her when she was younger and inserting his penis into her vagina when she was almost 11 — the panel rejecting appellant’s arguments that (1) the judgment must be reversed because the trial court admitted the victim’s videotaped statement given to the prosecutor’s investigator without conducting a hearing pursuant to N.J.R.E. 803(c)(27); and (2) the Division of Youth and Family Services’ decision to file a complaint was the result of institutional bias against him. [Decided Feb. 7, 2003.] PARENT/CHILD — TERMINATION OF PARENTAL RIGHTS 28-2-2799 State of N.J. D.Y.F.S. v. S.E.C.; I/M/O Guardianship of N.W.C., et al., Minors, App. Div. (per curiam) (7 pp.) The court properly terminated the parental rights of appellant — the natural mother of the children at issue — in light of her long history of drug abuse, which she continued to deny, and her consequent refusal to avail herself of the services offered to help her. [Decided Feb. 10, 2003.] 28-2-2800 State of N.J. D.Y.F.S. v. G.S.; I/M/O Guardianship of N.S., et al., Minors, App. Div. (per curiam) (4 pp.) The court properly terminated the parental rights of appellant — the natural mother of the 2- and 3-year-old children at issue — where appellant, although agreeing to participate in drug counseling and psychological evaluations, and to attend parenting skills training, all as part of the family reunification plan, failed to complete any of these programs and had an attitude that was generally described as “combative and hostile.” [Decided Feb. 10, 2003.] PHYSICAN/PATIENT — TORT CLAIMS ACT — LATE NOTICE 29-2-2801 Kennedy, et ux. v. Arronenzia, R.N., et al., App. Div. (per curiam) (10 pp.) Inter alia, considering the elderly and medically frail plaintiff’s condition and afflictions, one would be hard pressed to conclude that the business card that the defendant-doctor presented to him would advise plaintiff that the doctor, to whom he was referred by his private physician and who treated him at a private hospital, was a public employee; the circumstances of this case, therefore, qualify as extraordinary, justifying plaintiff’s delay in filing a late notice of claim under the Tort Claims Act. [Decided Feb. 10, 2003.] PHYSICAN/PATIENT — TORT CLAIMS ACT — LATE NOTICE 29-2-2802 Serrano, etc. v. University of Medicine and Dentistry of N.J., etc., et al., App. Div. (per curiam) (11 pp.) The Law Division judge justly denied plaintiff’s application to file a late notice of claim against the defendants for survival damages associated with plaintiff’s decedent’s pain and suffering prior to his death, where there was no indication that either plaintiff or decedent’s brother were confused or misled as to the defendants’ status as public employees; mere ignorance of the law is not a sufficient excuse. [Decided Feb. 10, 2003.] REAL ESTATE — NEW CONSTRUCTION — SETTLEMENTS 34-2-2764 Visakay, et ux. v. Erickson, App. Div. (per curiam) (9 pp.) In this case for damages arising from cracks that developed in the foundation of plaintiffs’ new home, the trial court accurately found that the parties had reached a binding and enforceable settlement agreement by defendant-contractor agreeing to pay plaintiffs for the cost of repairs within a range between $205,000 and $220,000; the docketing of the consent judgment was not a material aspect of the agreement from the contractor’s point of view, because it permitted him to sell his other properties and use the proceeds to satisfy the judgment. The court then justifiably fixed the cost of repairs at $220,375, 7.5 percent above the original estimate. [Decided Feb. 6, 2003.] TORTS — CLAIMS ACT 36-2-2765 Pampered Pancake House, Inc., et al. v. Twp. of Long Beach, etc., et al., App. Div. (per curiam) (12 pp.) Plaintiffs brought this case against the municipal defendants, alleging that the loss of their restaurant and home in a fire was due to the defendants’ negligence in failing to properly and timely address the continuing problem of poor water pressure in the municipality, which meant that firefighters were not able to properly fight the fire. The panel affirms the motion judge’s grant of summary judgment to the defendants, finding that the immunities set forth in N.J.S.A. 59:2-3(a) and (b) bar the claims against the township, and the corresponding immunities in N.J.S.A. 59:3-2(a) and (b) insulate the mayor and the commissioners. [Decided Feb. 6, 2003.] TORTS — DEFAMATION — PRIVILEGE 36-2-2803 Doll, et al. v. Lewis, et al., App. Div. (per curiam) (5 pp.) The court below accurately granted summary judgment in favor of defendant — an expert, licensed psychologist, retained by plaintiff’s ex-husband with respect to the parties’ Florida custody dispute — dismissing plaintiff’s claims of slander and defamation arising out of statements the defendant made to the court in the custody dispute because the statements and opinions were protected by the litigation privilege. [Decided Feb. 10, 2003.] WORKERS’ COMPENSATION — BOND v. ROSE RIBBON 39-2-2783 Switzer v. Connectron, Inc., App. Div. (per curiam) (4 pp.) Without notice to either petitioner or his new employer, the compensation judge erred in dismissing the claim petition — for carpal tunnel syndrome — against respondent, petitioner’s former employer, in reliance on Bond v. Rose Ribbon; the foundation of the Bond rule is that, to hold the current employer liable, the current employer — at the time the injury becomes manifest or known — must have contributed in some measure to the injury; here, the record regarding petitioner’s job functions and exposures at each of his places of employment must be developed in greater detail, as must the corresponding opinions of the medical experts as to petitioner’s injury and its etiology. [Decided Feb. 7, 2003.] WORKERS’ COMPENSATION — RE-OPENERS — BURDEN OF PROOF 39-2-2784 Lorenzo v. Lance Plastics, Inc., App. Div. (per curiam) (4 pp.) The compensation court correctly denied petitioner’s request to reopen a 1995 compensation award, since the record fails to provide objective medical proof of petitioner’s increase in disability; petitioner misconceived his burden to prove, by sufficient evidence, a causally connected increase to the impairment adjudicated in the prior determination, and attempted to shift the burden of proof to the respondent to disprove a causal relationship. [Decided Feb. 7, 2003.]

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