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STATE COURT CASES CIVIL PROCEDURE — AMENDING PLEADINGS 07-2-4959 Heinz, Jr. v. Travel Plazas by Marriott, et al., App. Div. (per curiam) (2 pp.) Since leave to file amended pleadings is to be liberally given, and defense counsel moved to amend answer to include a third party complaint promptly after learning of the existence of an indemnity agreement between the proposed third party defendant and his client, the judge erred in denying motion. CONSTRUCTION 43-2-4960 Crean, et ux. v. West American Ins. Co., et al., App. Div. (per curiam) (11 pp.) In a subrogation claim brought by homeowners’ insurance carrier against contractor to recover monies it paid to its insureds — for damages sustained when the insureds’ house, under construction by contractor, was damaged when tarp came loose during a rainstorm — since the homeowners’ insurance carrier failed to sustain its case by expert testimony, and since the circumstances did not warrant a verdict against contractor on the basis of common knowledge, the trial court erred in permitting verdict against the contractor to stand. CORRECTIONS — PAROLE 13-2-4961 Risley v. N.J. State Parole Bd., App. Div. (per curiam) (11 pp.) Record supports denial of parole because punitive aspects of inmate’s sentence have not been satisfied, rehabilitation has not been sufficiently achieved, and there is a substantial likelihood that inmate would commit a new crime if released, since he has not shown that he has overcome his problems with drugs; however, since the parole board did not explain why it selected a twenty-year future eligibility term over the 27- month guideline term, this aspect is reversed and remanded. FAMILY LAW — DOMESTIC VIOLENCE 20-2-4962 Scolnick v. Scolnick, App. Div. (per curiam) (2 pp.) Defendant’s repeated threats to interfere with plaintiff’s dealings with the Immigration and Naturalization Service in her attempt to obtain permanent resident status were properly held to constitute harassment to support final restraining order. FAMILY LAW — MENTAL INCOMPETENCE — RELIEF FROM JUDGMENT 20-2-4963 Fineberg v. Fineberg, App. Div. (Carchman, J.S.C.) (16 pp.) In a case demonstrating the frustration of the matrimonial bench when confronted with litigants who manipulate the “system” in a manner designed to avoid bringing their disputes to an end, the court finds that defendant has failed to show entitlement to relief from his divorce judgment under R. 4:50-1(a) or (f); while not deprecating the medical difficulties from which defendant may be suffering, the court concludes that the record does not support defendant’s contention that he was mentally incapable of proceeding in the case. [Approved for publication Mar. 6, 1998.] HEALTH — COSTS FOR APPOINTED COUNSEL 22-2-4964 Cy. of Atlantic, et al. v. State of N.J.; Cy. of Ocean, Intervenor, App. Div. (per curiam) (7 pp.) In the absence of statutory authority requiring the State to pay for indigent patients’ counsel fees, the Director of the Division of Mental Health Services properly denied plaintiff counties’ request for reimbursement for legal expenses incurred in the provision of representation for mentally ill persons from their respective counties who required commitment to short term care facilities for acute care assessment services pursuant to N.J.S.A. 30:4-27.2bb. INSURANCE — P.I.P. — ENTIRE CONTROVERSY 23-2-4965 Shingelo, et al. v. Rutgers Casualty Ins. Co., App. Div. (per curiam) (7 pp.) The court correctly dismissed plaintiffs’ PIP suit as time-barred and also on entire controversy grounds for their failure to join the claims in prior action against tortfeasor. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-4966 Reisman v. Bd. of Review, etc., et al., App. Div. (per curiam) (6 pp.) Plaintiff was correctly denied unemployment benefits because she left work voluntarily without good cause attributable to such work, when she quit as a result of her employer requesting her to work more hours to cover temporarily for another employee taking leave. NEGLIGENCE — CASINOS 31-2-4967 Petrizzo, et ux. v. Trump Taj Mahal Casino, et al., App. Div. (per curiam) (7 pp.) Court affirms jury verdict awarding plaintiff $250,000 for hip injuries sustained in a fall from a casino chair, on the basis of her expert’s finding that the casino’s failure to make reasonable inspections and properly maintain the chair was a proximate cause of the accident. NEGLIGENCE — SIDEWALKS 31-2-4968 Conquest v. Richards, etc., et al., App. Div. (per curiam) (6 pp.) Plaintiff’s slip and fall complaint was properly dismissed because residential landowner could not be held responsible for natural collection of leaves and twigs on sidewalk adjacent to her property. PARENT/CHILD — TERMINATION OF RIGHTS 28-2-4969 I/M/O Guardianship of DMH, et al., App. Div. (Conley, J.A.D.) (34 pp.) Court reverses termination of natural father’s parental rights because at no time did DYFS ever consider the father as a viable prospective caretaker for the children, despite his undisputed bonding and involvement with them, and at no time did DYFS ever develop any plans for reunification of the children with the father. [Approved for publication Mar. 6, 1998.] 28-2-4970 N.J. D.Y.F.S. v. C.M.; I/M/O Guardianship of L.M., a Minor, App. Div. (per curiam) (6 pp.) Natural mother’s parental rights were properly terminated where she suffered from a personality disorder and functioned at a low intellectual level, and would have a great deal of trouble parenting any child, much less the very fragile child here, who, herself, suffers from suicidal tendencies and mental problems. PHYSICIAN/PATIENT 29-2-4971 Desir, et ux. v. Louissant, et al., App. Div. (per curiam) (15 pp.) Law Division correctly refused to set aside default malpractice judgment entered against physician, since, while the physician’s name may have been improperly spelled on suit papers, he was aware of the suit at all times, and knew enough about the legal system to get counsel once he received notice of the $255,000 judgment, and it was apparent that his tactic of ignoring the legal process had not worked. PUBLIC EMPLOYEES — ACCIDENTAL DISABILITY PENSION 33-2-4972 Pino v. Bd. of Trustees, P.E.R.S., App. Div. (D’Annunzio, J.A.D.) (5 pp.) School bus driver was properly held not to be entitled to an accidental disability pension because the minor motor vehicle collision in which he was involved with his bus — in which no one was else was injured, plaintiff himself did not immediately notice his injury, and there was minimal damage sustained to the bus — did not constitute the pre-requisite “great rush of force”or “traumatic event.” [Approved for publication Mar. 6, 1998.] TORTS — TORT CLAIMS ACT 36-2-4973 Balazhi v. City of Linden, et al., App. Div. (per curiam) (4 pp.) Plaintiff’s complaint — for injuries resulting from a beating he received at the hands of the police � was properly dismissed because his post-traumatic stress disorder, unmanifested by any physical symptoms, did not constitute a “permanent loss of a bodily function” under the Tort Claims Act. WILLS, ESTATES AND TRUSTS 38-2-4974 I/M/O Estate of Kemp, Deceased, App. Div. (per curiam) (5 pp.) The court reverses the Chancery judge’s denial of beneficiary’s application for counsel fees with respect to his filed exceptions to executor’s accounting, since it is at least arguable that the beneficiary’s efforts preserved the distributive shares of all residuary beneficiaries, and the legal expenses incurred with respect to the exceptions should be visited in proper proportion upon all such assets. FEDERAL COURT CASES ATTORNEY/CLIENT — ENTIRE CONTROVERSY — JOINT TORTFEASORS 04-7-4975 Fedora v. Celadon Trucking Svcs., Inc., et al., U.S. Dist. Ct. (Greenaway, Jr., U.S.D.J.) (10 pp.) In a case arising out of an accident between two trucks, (1) plaintiff truck owner is not barred by the Entire Controversy Doctrine from pursuing its claims against defendant truck owner since the doctrine only precludes successive suits involving related claims and does not require dismissal when multiple actions involving the same or related claims are pending simultaneously; and (2) the claim of plaintiff’s former attorneys against the defendant truck owner and driver — based on the Joint Tortfeasors Contribution Act � must fail because the parties are not joint tortfeasors; plaintiff’s claims against the trucking defendants arise out of the accident, while its claims against the attorneys are for malpractice in related NY litigation. [Filed Feb. 9, 1998.] BANKRUPTCY 42-7-4976 In re: Carretta, Debtor, U.S. Dist. Ct. (Lechner, U.S.D.J.) (36 pp.) In a case applying Jason Realty, the court finds that the Bankruptcy Court erred denying creditor’s request for an order enforcing its assignment of rents, the judge erroneously holding that the assignment not absolute and, in making this determination, erroneously considering extrinsic evidence, since extrinsic evidence can only be used to explain, not to modify, the clear terms of the assignment. [Filed Feb. 6, 1998.] CONTRACTS — RESTRICTIVE COVENANTS 11-7-4977 Evergreen Radiology Assoc., P.A., v. Shetty, U.S. Dist. Ct. (Barry, U.S.D.J.) (7 pp.) Although plaintiff — a medical practice limited to radiation oncology — may very well prevail on the merits of its suit against its former employee for his breach of a restrictive covenant agreement, it has not shown the irreparable harm necessary for injunctive relief. [Filed Feb. 9, 1998.] CORRECTIONS — CIVIL RIGHTS 13-7-4978 Gaines v. Grobels, et al., U.S. Dist. Ct. (Lifland, U.S.D.J.) (14 pp.) (1) Even if inmate had been falsely charged by prison officers, he was not deprived of due process because it is undisputed that he was afforded a full disciplinary hearing. (2) Plaintiff has adequately supported his allegations that the conditions of his confinement met the objective and subjective components of an Eighth Amendment violation, and, as to two officers, has adequately alleged that they acted with deliberate indifference. [Filed Feb. 11, 1998.] DEBTOR/CREDITOR — AGRICULTURE 15-7-4979 Philadelphia Produce Credit Bureau v. Jersey Produce Co., Inc., et al., U.S. Dist. Ct. (Bissell, U.S.D.J.) (5 pp.) In this action brought under the Perishable Agricultural Commodities Act (PACA), the court grants the plaintiff’s request to enable it to determine the complete class of PACA creditors entitled to distribution of PACA trust assets, approves its proposed methodsh and sets a bar date for intervention. [Filed Feb. 4, 1998.] LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-4980 Bleier v. Hill-Rom Co., Inc., et al., U.S. Dist. Ct. (Greenaway, Jr., U.S.D.J.) (21 pp.) (1) Where the only evidence of age-related discrimination was one statement made by a superior to plaintiff — that she was “too old not to be happy” — such a statement does not represent direct evidence of age discrimination, and, since plaintiff has failed to prove that age discrimination was not the motivating factor for anything that occurred, summary judgment is granted to the employer. (2) Plaintiff’s contract claims fail because the disclaimer on the employee handbook is prominent and clear. [Filed Feb. 10, 1998.] LABOR AND EMPLOYMENT — EVIDENCE 25-7-4981 Kalbacher, et al. v. Hitachi Instruments, Inc., et al., U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (15 pp.) The court denies the various in limine motions brought by the defense — seeking to bar the testimony of various witnesses and preclude the admission of certain documents — finding that the preclusion is premature and that the ultimate decisions as to admissibility are better left for the trial judge. [Filed Feb. 6, 1998.] LABOR AND EMPLOYMENT — INFLICTION OF EMOTIONAL DISTRESS 25-7-4982 Sabol, et ux. v. Spotswood Mill, et al., U.S. Dist. Ct. (Hayden, U.S.D.J.) (10 pp.) In a case where plaintiff’s daughter was raped by a co-worker of plaintiff’s, and plaintiff had to continue to work near the co-worker and was subject to his taunts and harassment: (1) plaintiff’s claim against the employer for negligent infliction of emotional distress is dismissed as barred by the workers’ compensation laws, and his contention that the dual capacity doctrine would allow such a claim is without merit on the facts of this case; and (2) plaintiff’s intentional infliction of emotional distress claim cannot be dismissed, since it is dependent on undetermined factual issues. [Filed Feb. 11, 1998.] LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-4983 Beecham v. N.J. D.O.T., et al., U.S. Dist. Ct. (Ackerman, U.S.D.J.) (28 pp.) Judgment is entered in favor of the defendants, since plaintiff has failed to prove that he was not interviewed or promoted based on racial discrimination or that he was denied due process of law with respect to the proceedings arising out of an altercation with a supervisory co-worker. [Filed Feb. 9, 1998.] TORTS — TORT CLAIMS ACT — LATE NOTICE 36-7-4984 Farrington Environmental, et al. v. Jersey City Incinerator Authority, et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiff’s motion to file a late tort claim notice is denied, because (1) his contention that he was uncertain whether his claim had any validity, and filed as soon as he determined that it had, is not a reason to circumvent the statute; and (2) front-page newspaper article on the underlying incident did not suffice to provide “notice” to defendant under the TCA. [Filed Feb. 9, 1998.] ADMINISTRATIVE LAW DECISIONS CONSUMER PROTECTION — LEMON LAW 01-CMA-4985 Meka v. Chrysler Motor Corp., OAL (Klinger, A.L.J.) (8 pp.) The ALJ finds that petitioner is not entitled to relief from the Lemon Law because the “no-start” condition she alleged no longer exists, and the dealer was not given the required three attempts to correct the stalling problem. [Initial Decision Dated Dec. 4, 1997.] 01-CMA-4986 Fariello v. Ford Motor Co., OAL (Holmes, A.L.J.) (6 pp.) The fact that the driver’s side-view mirror vibrates so that the operator of the truck cannot distinguish the number of vehicles, or their approximate distance in back of the truck, is not a substantial defect that impairs the vehicle’s use, value or safety. [Initial Decision Dated Nov. 25, 1997.] 01-CMA-4987 Ripoli v. Chrysler Motor Corp., OAL (Holmes, A.L.J.) (5 pp.) Electrical problems in petitioner’s vehicle were not substantial defects that impaired the vehicle’s use, value or safety, and, in any event, the defects have been cured. [Initial Decision Dated Dec. 4, 1997.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-4988 Campbell v. Newark School District, OAL (Hayden, A.L.J.) (7 pp.) Where appellant — a custodial worker for school district — got very drunk, and, intending to commit suicide, took a gun and shot it off in a park, and set fire to some toilet paper when he was arrested — his actions support the charge of conduct unbecoming a public employee; however, in light of appellant’s alcoholic disability, and his substantial attempts at rehabilitation, termination is too harsh a penalty, and a six-month suspension is ordered instead. [Initial Decision Dated Dec. 8, 1997.] PUBLIC EMPLOYEES — RESIGNATION UNDER DURESS 01-CSV-4989 Hedgepeth v. Burlington Cy. Jail, OAL (Metzger, A.L.J.) (7 pp.) Corrections officer has failed to show by a preponderance of the evidence that he was forced to resign under duress during a police interrogation, because the officer, by virtue of his job, was familiar with his rights as a citizen, and his fear of being jailed unless he confessed to spurious allegations is unpersuasive. The ALJ concludes that the resignation was voluntarily given in the face of probable termination for cause. [Initial Decision Dated Dec. 4, 1997.]

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