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STATE COURT CASES FAMILY LAW — COHABITATION 20-2-5081 Chase v. Chase, App. Div. (per curiam) (2 pp.) The court rejects former husband’s contention that his ex-wife’s pregnancy by her paramour amounted to “cohabitation” entitling him to cessation of alimony. FAMILY LAW — COUNSEL FEES 20-2-5082 Caplen v. Abdelnasser, App. Div. (per curiam) (6 pp.) Court finds no abuse in discretion in judge’s award of counsel fees to plaintiff, based on defendant’s greater income, plaintiff’s need, and the finding that defendant was dilatory in his lack of cooperation; however, the additional counsel fees awarded to plaintiff as a result of defendant’s filing a motion for reconsideration is reversed, since there is no evidence that the reconsideration motion was a dilatory tactic. FAMILY LAW — JURISDICTION 20-2-5083 Bourne v. Bourne, App. Div. (per curiam) (3 pp.) Since plaintiff must reside in NJ for at least one year before the court will have jurisdiction over a divorce action for all causes other than adultery, the judge erred in dismissing her complaint, which was based solely on adultery. INSURANCE — U.I.M. COVERAGE 23-2-5084 Melograno v. N.J.A.F.I.U.A., etc., App. Div. (per curiam) (4 pp.) The judge below properly compelled insurer to arbitrate plaintiff’s UIM claim; apart from the estoppel issue considered controlling by the judge, the plaintiff would be entitled to coverage as an insured under her father’s policy under French. INSURANCE — VERBAL THRESHOLD 23-2-5085 Black v. Chambers, et al., App. Div. (per curiam) (7 pp.) Given the plaintiff’s MRI results, which the plaintiff’s doctor causally related to the accident, there was adequate credible objective medical evidence of lower back injury to defeat the summary judgment motion; the court is also satisfied that the assertions by plaintiff of the effect of the resulting disability on his self-employment as a carpenter, and on his bow-and-arrow hunting, were sufficient to raise a question of serious impact with the Oswin formulation. LABOR AND EMPLOYMENT — C.E.P.A. 25-2-5086 Klein v. Foster Wheeler, etc., App. Div. (per curiam) (15 pp.) Judge properly dismissed plaintiff’s CEPA claim, finding that the issues involved — plaintiff’s allegation that his supervisor acted improperly in signing faxes to subcontractors without authorization — appeared to be limited to a private contractual agreement between two private corporations, and were not of a public policy concern; the CEPA was not enacted to permit a suit by an employee based on a claim that his superior breached a private contract with a third party, and this is so even if the employee is a lawyer and couches his claim in terms of “ethics” or even if there is a speculative expenditure of a foreign government’s funds. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-5087 DeMarcello v. Bd. of Review, et al., App. Div. (per curiam) (6 pp.) The petitioner was erroneously denied unemployment benefits when she left work because her life was threatened by a co-worker and she legitimately feared for her safety; since the altercation arose out of petitioner’s complaints to her employer regarding the co-worker’s performance, the undisputed threat arose by reason of the performance of the employer’s work. 25-2-5088 Jackson v. Bd. of Review, etc., et al., App. Div. (per curiam) (2 pp.) Although nurse/petitioner had recently enjoyed full-time work, she had previously worked part-time as well, and when the full-time work ceased, and she found she could not support herself on the part-time work next offered her, her quit was properly held to be voluntary. LANDLORD/TENANT 27-2-5089 Housing Auth. of…Newark v. Davis, App. Div. (per curiam) (11 pp.) In this case where plaintiff sought to evict defendant on the grounds that she was harboring a drug offender, the insufficiency of the complaint alone should have warranted dismissal, but also, the failure of proof at trial should have caused the judge to enter judgment for the defendant; further, the judge’s failure to permit the defendant to supplement her proofs following the plaintiff’s reopening its case would have provided an independent basis for a reversal of the eviction. NEGLIGENCE — TRUCK LEASES 31-2-5090 Pliszczak, et ux. v. Harr Motor Co., et al., App. Div. (per curiam) (5 pp.) In a case where plaintiff suffered injuries from a fall from an allegedly defectively-welded step on a truck leased to his employer by defendant, the court erred in granting summary judgment to the defendant based on his finding that there was an absence of proof that defendant had negligently performed its obligation to repair and maintain the truck, since there were factual issues to be resolved; further, the court failed to address the issue of defendant’s strict liability in tort, wherein freedom from negligence is not a defense. PUBLIC EMPLOYEES — “EMPLOYEES” 33-2-5091 Stevens v. Bd. of Trustees of P.E.R.S.; Twp. Of Bridgewater, Intervenor, App. Div. (Kleiner, J.A.D.) (6 pp.) Petitioner was properly found to be “employed again” in the office of the tax assessor, and was not merely an independent contractor who was not eligible for PERS membership; the PERS Board’s use of IRS Revenue Ruling 87-41 to determine employment status did not violate the Administrative Procedure Act. [Approved for publication Mar. 13, 1998.] PUBLIC EMPLOYEES — ESTOPPEL 33-2-5092 Verp v. Bd. of Trustees, P.E.R.S., App. Div. (per curiam) (8 pp.) Although petitioner did not satisfy the thirty- five year service requirement to entitle him to a special veteran’s retirement allowance pursuant to N.J.S.A. 43:15A-61(d), the court reverses the PERS Board’s denial of the allowance, and adopts the ALJ’s finding that PERS was equitably estopped from denying the allowance because of erroneous advice given to petitioner by the agency, upon which he relied. PUBLIC EMPLOYEES — REGULATIONS 33-2-5093 I/M/O Intermittent Employees, Dept. of the Treasury, App. Div. (per curiam) (6 pp.) The appellate panel affirms the decision of the Merit System Board finding good cause for the temporary relaxation of N.J.A.C. 4A:3-3.8(b)(3) — which requires that intermittent employees be recalled from furlough on the basis of seniority — citing the astronomical cost of paying intermittent employees at an overtime rate and the administrative burdens attendant to such a course. CRIMINAL LAW AND PROCEDURE — ASSAULT 14-2-5094 State v. Hackett, App. Div. (per curiam) (12 pp.) The judge’s charge on aggravated assault was so confusing � charging the incorrect statute, omitting the proper mental state and failing to charge the jury sequentially — that reversal of the second- degree aggravated assault conviction is required, as well as the second-degree conspiracy conviction predicated thereon. CRIMINAL LAW AND PROCEDURE — PLEAS 14-2-5095 State v. Bond, App. Div. (per curiam) (9 pp.) The defendant should have been allowed to withdraw his plea on the facts of this case; although the first plea negotiation had never ripened into an enforceable agreement — constituting at most a conditional offer requiring acceptance by two defendants, which did not occur — the series of ambiguities in the further bargaining proceedings after the plea cut off raises considerations of fundamental fairness, and the court has no confidence that defendant fully understood that by entering a guilty plea and accepting the second offer, he was foregoing any right he may have had to rely on the original offer. CRIMINAL LAW AND PROCEDURE — SENTENCING 14-2-5096 State v. Mraz, App. Div. (per curiam) (7 pp.) The court erred in denying defendant’s motion to correct an illegal sentence, which, inter alia, would run afoul of N.J.S.A. 2C:45-2, under which a court may not sentence a defendant to more than five years on probation. FEDERAL COURT CASES ATTORNEY/CLIENT — DISQUALIFICATION 04-7-5097 Hayt, Hayt & Landau v. St. Paul Fire & Marine Ins. Co., U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (9 pp.) In law firm’s “bad faith” case against property insurer for its handling of their losses stemming out of a four-day computer outage, the magistrate judge denies the insurer’s motion seeking to disqualify two of the firm’s partners from proceeding as the firm’s counsel in this action; although the partners are definitely material witnesses, the motion is untimely, as the insurer has known since the inception of this litigation that these partners were acting as the firm’s counsel, and the delay that would result in their disqualification at this juncture would be substantial and undue. [Filed Mar. 2, 1998.] DEBTOR/CREDITOR — GUARANTIES 15-7-5098 Imaging Financial Svcs. v. LexPlex Duplicating Svcs., Inc. v. Stewart, et ux., U.S. Dist. Ct. (Ackerman, U.S.D.J.) (16 pp.) In this dispute over a breached computer lease, the court finds: (1) that although lessee’s principal did not personally sign the lease, he ratified it; (2) while the lessees may have an action against the copier manufacturer for defective copiers, the unconditional “hell or high water” clause in the lease meant that the lessees owed payment to the lessor even though the lessor may have delivered non-conforming copiers; and (3) third-party guaranty of the lease payments is effective and enforceable. [Filed Feb. 27, 1998.] EVIDENCE — PRIVILEGE 19-7-5099 BDP Intl., Inc., et al. v. PMC, Inc., et al., U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (6 pp.) On plaintiff’s application for an in camera review in conjunction with defendants’ request to produce documents, the magistrate judge finds that the summary of activity for defendant’s shipments to Pakistan, and various e-mails are discoverable, whereas one e-mail is protected by the work- product and R. 408 “evidence of settlement and/or negotiations” privileges. [Filed Mar. 2, 1998.] INSURANCE — ATTORNEY/CLIENT 23-8-5100 Selko v. Home Insurance Company, Third Cir. (Campbell, C.J., sitting by designation) (16 pp.) Where evidence of record shows the attorney applied for professional liability policy with full knowledge that he had already entered into a business transaction with the client in violation of RPC 1.8(a), in violation of policy’s exclusion of coverage, summary judgment was properly granted denying recovery to the client. [Filed March 13, 1998.] INSURANCE — POLICY RESCISSION 23-7-5101 McCann v. John Alden Life Ins. Co., et al., U.S. Dist. Ct. (Lifland, U.S.D.J.) (30 pp.) (1) Under principles of federal common law which preempt plaintiff/insured’s state law claims, plaintiff’s material misrepresentations in her enrollment form regarding her health, even if innocent, were a valid basis for defendant insurer’s rescission of her health policy, and the court grants the insurer summary judgment dismissing plaintiff’s claims against it and permitting the insurer to rescind plaintiff’s coverage ab initio. (2) The insurer is entitled to restitution from plaintiff for the total amount of claims it paid on her behalf. (3) Insurer’s request for attorney’s fees is denied. (4) There are material issues of fact precluding summary judgment with regard to plaintiff’s claims against her employer for breach of its fiduciary to her in completing the group health insurance enrollment form. [Filed Mar. 2, 1998.] ADMINISTRATIVE LAW DECISIONS CABLE TELEVISION — RATES 01-CTV-5102 I/M/O…Application by U.S. Cable of Paterson, etc., OAL (Clancy, A.L.J.) (6 pp.) The ALJ finds that: (1) cable provider inappropriately inflated certain line item rate calculations contained in its form 1205 application for an increase in equipment and installation charges, and orders recalculation thereof; and (2) since neither Ratepayer Advocate or Staff Counsel have presented any evidence concerning any impact the reclassification of part of the franchise fee might have on the basic service rate, and since the rest of form 1240 is unchallenged, the form — requesting a rate increase for basic cable services — is approved, and a 3% increase ordered. [Initial Decision Dated Jan. 7, 1998.] COMMUNITY AFFAIRS — HOMEOWNERS’ WARRANTY 01-CAF-5103 Bob Buehler Constr. v. Bureau of Homeowner Protection, etc., OAL (Sullivan, A.L.J.) (3 pp.) Although builder has not been charged with any dishonesty or criminal action, his failure to defend the Bureau’s claim as to the cause of the Bureau’s having had to pay over $5,000 as a result of a homeowner’s claim against the builder warranted the Bureau’s denial of builder’s “new home builder” license. [Initial Decision Dated Sept. 2, 1997.] 01-CAF-5104 Ominsky, et ux. v. Bureau of Homeowner Protection, etc., OAL (Law, A.L.J.) (8 pp.) The New Home Warranty Program’s imposition of a 30- or 45-day rule — requiring petitioners to file their bids for claims against the Program within that time-frame — constituted a rule which had not been properly promulgated by the Director or the Bureau, and therefore had no force or effect; petitioners’ claims are ordered reopened. [Initial Decision Dated July 28, 1997.] EDUCATION — SALARY 01-EDU-5105 Sims v. State Operated School District of…Jersey City, etc., OAL (Hayden, A.L.J.) (11 pp.) There is nothing unreasonable about the School District requiring its teachers to use certain teaching techniques, and here, where petitioner had been trained by seminars and orientation to teach using the literature-based teaching method, but, when evaluated twice, had failed to either follow that method or explain why she did not do so, the District did not err in withholding the petitioner’s salary increment. [Initial Decision Dated Dec. 22, 1997.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-5106 Graham v. Dept. of Human Svcs., etc., OAL (Reback, A.L.J.) (9 pp.) Conduct of petitioner — a Human Services Assistant at a state psychiatric facility — in wagering with an inmate and selling him food, runs counter to his obligations as a public employee and health care worker, and constitutes conduct unbecoming; however, in light of petitioner’s unblemished record, the penalty of removal was excessive, and the ALJ orders, instead, a six-month suspension. [Initial Decision Dated Dec. 23, 1997.]

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