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STATE COURT CASES CONTRACTS 11-2-5999 G. Tresch Transportation, Inc., et al. v. Ocean Cy. Utilities Auth., et al., App. Div. (per curiam) (5 pp.) The panel affirms final judgment dismissing plaintiff’s breach of contract claim arising out of a publicly bid contract for sludge removal, since plaintiff failed to prove that the county breached the contract by using its equipment to perform additional thickening of the sludge during ten months of the contract. EVIDENCE — AUTO NEGLIGENCE 19-2-6000 O’Hagan, et ux. v. Zindell, App. Div. (per curiam) (6 pp.) In a verbal threshold trial, the judge did not err in denying defendant’s motions to limit the scope of plaintiff’s expert chiropractor’s testimony or in imposing attorney’s fees and costs because the verdict exceeded the arbitration award, but he was mistaken in excluding defendant’s dental expert witness and the panel remands the matter for a new trial and the imposition of a sanction against defendant for his gross abuse of the discovery process. FAMILY LAW — CHILD SUPPORT 20-2-6001 Adler v. Adler, App. Div. (per curiam) (10 pp.) Judge failed to resolve the specific factual conflict regarding the alleged change in the child support arrangements worked out between the parties after the divorce judgment was entered, and should have conducted a plenary hearing on plaintiff’s application for child support arrears and defendant’s application for relief from the judgment’s child support provisions. FAMILY LAW — COLLEGE EXPENSES 20-2-6002 Schwarz v. Fasteau, etc., et al., App. Div. (per curiam) (7 pp.) Where ex-husband agreed, in consideration for other portions of the divorce judgment, to be “exclusively responsible” for the children’s higher education, and did not present any proofs that he was unable to fulfill this obligation, the ex-wife’s remarriage to, and subsequent inheritance from, a wealthy man is irrelevant to ex-husband’s obligation, and discovery requests against the deceased man’s estate were properly denied. GOVERNMENT — COSTS OF COURTHOUSE CONSTRUCTION 21-3-6003 Bd. of Chosen Freeholders of the Cy. of Morris, et al. v. State of New Jersey, Law Div. (Stanton, A.J.S.C.) (18 pp.) Neither the definition of “judicial costs” nor the definition of excluded “judicial facility costs” contained in N.J. Constitution Art. VI, sec. VIII, Par. 1(b)(1) and (3) encompasses capital costs implicated in the construction, renovation or expansion of the county courthouses, and the County is responsible for such costs, not the State. [Decided Apr. 24, 1997; Approved for publication May 18, 1998.] 21-2-6004 Bd. of Chosen Freeholders of the Cy. of Morris, et al. v. State of New Jersey, App. Div. (Conley, J.A.D.) (3 pp.) The appellate panel affirms the decision of the Law Division judge finding that the counties, and not the State, are responsible for the capital costs implicated in the construction, renovation or expansion of the county courthouses. [Approved for publication May 18, 1998.] INSURANCE – EMPLOYER’S BUSINESS AUTO COVERAGE – PER QUOD CLAIMS 23-2-6005 Einwechter, et ux. v. Marciano, et al., App. Div. (per curiam) (7 pp.) Where employees were injured in an accident while riding in their employer’s van in the course of their employment, the Law Division judge correctly held that injured employees’ wives were eligible for compensation under the UIM coverage of the employer’s business automobile insurance policy for their per quod claims. [Approved for publication May 18, 1998.] INSURANCE — VERBAL THRESHOLD 23-2-6006 Pinkney, et al. v. Pinkney, et al., App. Div. (per curiam) (9 pp.) Verbal threshold was not met by conclusory statements or non-objective conclusory medical findings respecting causation of plaintiff’s injuries and the extent of those injuries; plaintiff never had any objective tests and x-rays were normal, and the finding of spasm which substantially improved six months post-accident did not suffice as evidence of serious injury. LABOR AND EMPLOYMENT 25-2-6007 Islam v. McGinley Mills, Inc., App. Div. (per curiam) (5 pp.) The trial judge correctly held that the now-repealed statute of frauds barred plaintiff’s action for breach of an alleged three-year employment contract, since all agreements not to be performed within one year were required to be in writing and signed by the party to be charged at the time of this alleged contract. LAND USE — STANDING — ATTORNEY/CLIENT 26-1-6008 Paruszewski v. Twp. of Elsinboro, et al., Supreme Ct. (Garibaldi, J.) (23 pp.) Because the use of land as an airstrip has such a significant effect on the surrounding area, the Twp. Committee, as the governing body, had standing to oppose non-conforming use certification application before the Zoning Board and the appearance of the Twp. attorney did not present a reversible conflict of interest. 26-1-6009 Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, et al., Supreme Ct. (Garibaldi, J.) (25 pp.) Because the Zoning Board did not have the authority to act on non-conforming use certification application in the absence of notice to adjoining landowners and the opportunity to be heard, the Board was deprived of an opportunity to hear all the facts, and the Township had standing to challenge the Board’s action. NEGLIGENCE — SLIP AND FALL 31-2-6010 Maillet, et al. v. Trump Castle, App. Div. (per curiam) (6 pp.) Once defendant conceded that it was aware of the raised brick pavers in the valet parking lot, the witness of another person who had fallen in the lot was unnecessary, except to establish the length of time defendant knew of the condition; however admission of the testimony would have been prejudicial and was further problematic in that the witness was unable to pinpoint exactly where he fell, and plaintiff could not say where she had fallen, and the testimony was properly excluded. PHYSICIAN/PATIENT 29-2-6011 Estate of Hussain, etc., et al. v. Gardner, M.D., App. Div. (per curiam) (11 pp.) Judge erred in dismissing medical malpractice case against neurosurgeon, finding that plaintiff’s expert’s de bene esse testimony did not establish a standard of care, a deviation therefrom, or proximate causation because the expert was not in possession of all of the information relating to the patient’s condition before she was admitted to the hospital; although the missing data might weaken the expert’s testimony in the jury’s eyes, it was not so completely lacking in proper foundation as to be worthless, and its elimination resulted in the severe sanction of plaintiff being totally unable to proceed with its case. TAXATION 35-2-6012 Twp. of Berkeley Heights, etc. v. Cy. of Union, App. Div. (Coburn, J.A.D.) (14 pp.) County was entitled to continued tax exempt status for the John E. Runnells Hospital property for a reasonable time while the property was being readied for transfer, and the panel finds that the Tax Court erred in finding that that time expired in 1993, since the presence of various and real environmental and other problems delayed the closing until 1995. [Approved for publication May 18, 1998.] CRIMINAL LAW AND PROCEDURE — HEARSAY 14-2-6013 State v. Anthony, App. Div. (per curiam) (7 pp.) The trial court erred in allowing victim to relate to the jury his opinion as to the “conspiratorial” reasons for defendant’s “change of allegiance” — where defendant at first came to victim’s aid in a fight and then later attacked him — since such an opinion constitutes rank hearsay and conjecture, and the panel rejects the prosecutor’s argument that the defense counsel “opened the door” to this testimony. CRIMINAL LAW AND PROCEDURE — SEARCH & SEIZURE 14-2-6014 State v. Baldwin, App. Div. (per curiam) (14 pp.) Merely because defendant handed something to someone in a van in broad daylight and receiving something in exchange did not give the officer probable cause to conduct a pat-down search of defendant incident to a Terry stop, even though this activity took place in a “high drug area,” and motion to suppress should have been granted. FEDERAL COURT CASES CONTRACTS 11-7-6015 Milestone Scientific, Inc., et al. v. Spinello, U.S. Dist. Ct. (Pisano, U.S.M.J.) (24 pp.) In a multi-faceted dispute between the corporate plaintiffs and the defendant — its director and employee — the court denies as futile defendant’s application to amend his answer and counterclaim and to join an additional defendant, finding that (1) the proposed new parties’ failure to explain the legal ramifications of the agreements to defendant did not constitute legal fraud; (2) the proposed derivative minority shareholder action claim does not demonstrate that defendant satisfied his obligation to exhaust intracorporate remedies; and (3) conspiracy claim fails because of the court’s finding that there exists no cause of action for the alleged underlying acts. [Filed May 5, 1998.] INTELLECTUAL PROPERTY — JURISDICTION — TRANSFER 53-7-6016 Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., et al., U.S. Dist. Ct. (Bissell, U.S.D.J.) (23 pp.) In the interest of judicial economy, the court transfers this first-filed patent infringement action — dealing with products utilizing bone and tissue regeneration technology for use in the periodontal and orthopedic industries — to California where a second-filed, but broader and related suit is pending; the court finds that it has specific jurisdiction over one of the defendants, but not the other, but that transfer is permitted even as to the defendant over whom there is no jurisdiction. [Filed May 5, 1998.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-7-6017 Phillips v. PECO Energy Co., U.S. Dist. Ct. (Bassler, U.S.D.J.) (7 pp.) Former employee’s claim that her ex-employers intentionally interfered with her unemployment compensation application is dismissed as barred both by the two-year tort claims statute of limitations as to the intentional interference claim, and, with respect to the employment discrimination claim, the Title VII requirement that an EEOC claim must first be filed. [Filed May 6, 1998.] ADMINISTRATIVE LAW DECISIONS CODE ENFORCEMENT 01-CAF-6018 I/M/O Asta Realty, Inc., OAL (Gaeta, Jr., A.L.J.) (10 pp. — includes both ALJ’s initial decision and final decision adopting same by Kenny, Commr.) Notwithstanding Asta’s argument that it is not liable for penalties because the contract purchaser had received the deed and was therefore responsible for correcting violations although the deed was unrecorded, the ALJ finds that Asta, as record owner, is responsible to the Bureau for the violations and penalties; should there be legal relationships between the parties relating to the ownership and its responsibilities, those equities are to be resolved between the parties. [Initial decision dated Mar. 27, 1998; Final decision dated Apr. 22, 1998.] CONSUMER PROTECTION — LEMON LAW 01-CMA-6019 Friedland v. Mitsubishi Motor Sales, OAL (Goldberg, A.L.J.) (7 pp. — includes both ALJ’s initial decision and final decision adopting same by Herr, Dir.) The ALJ finds that the dealer had repaired the alleged brake defects in the petitioner’s 1997 Mitsubishi Eclipse — of shimmy, noise and vibrations at the “end of travel” — and dismisses the Lemon Law petition. [Initial decision dated Mar. 11, 1998; Final decision dated Mar. 30, 1998.] ENVIRONMENT 01-EEQ-6020 Dept. of Environmental Protection v. Gentek Bldg. Products, Inc., DEP (Shinn, Jr., Commr.) (11 pp.) The Commissioner affirms the ALJ’s penalty assessment against aluminum and steel siding manufacturer for exceeding permitted carbon monoxide levels, concluding that the ALJ properly applied the mitigating factors and reduced the Department’s recommended penalty by 40%. [Final decision dated May 4, 1998.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-6021 Amato v. Div. of Medical Assistance, etc., OAL (Tylutki, A.L.J.) (17 pp.) After supervising medical review analyst’s crotch-grabbing habit was called to his attention, he made no effort to correct it, and although he did not grab himself intentionally to harass, his action still constituted sexual harassment since it created a hostile work environment for the women in his unit; certain explicit conversations he had with an employee about his marital relations also constituted harassment, and, even though there was no prior disciplinary history, since petitioner is a supervisor and has the responsibility of setting a good example, his conduct merits the 45-day suspension imposed. [Initial decision dated Feb. 27, 1998.] YOUTH AND FAMILY — ADOPTION SUBSIDIES 01-HDY-6022 O.F., et ux. v. D.Y.F.S., etc., OAL (Bruno, A.L.J.) (6 pp.) Physical or emotional health or history of a parent is not a NJAC-specified reason why a child might reasonably be expected not to be placed for adoption, and the only “special needs” recognized for approving eligibility of a hard-to-place child for purposes of adoption subsidy are needs manifested by the child, not the problems of the parent; because the child here does not seem to have serious or diagnosed problems, DYFS properly denied the adoptive parents a “hard-to-place” child subsidy. [Initial decision dated Mar. 25, 1998.]

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