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STATE COURT CASES INSURANCE — VERBAL THRESHOLD 23-2-7166 Hesketh v. Barrera, App. Div. (per curiam) (3 pp.) Plaintiff’s case was found insufficient to surmount the verbal threshold since, although plaintiff contended that he suffered a fracture of two ribs in the subject accident, his medical proofs did not objectively support the existence of such fracture, and, at best, constituted conjecture in the bone scan report of a possible fracture that was uncorroborated by any other proofs. 23-2-7167 Jackson v. Shuster, et ux., App. Div. (per curiam) (3 pp.) Where the proofs indicated, at most, that plaintiff sustained neck and back sprain and strain, with likely exacerbation of a pre- existing degenerative disc, and where the impact of the accidental injuries on the plaintiff was minimal, her case was properly dismissed for failure to surmount the verbal threshold. CRIMINAL LAW AND PROCEDURE — JUDGE’S PARTICIPATION 14-2-7168 State v. Paradelo, App. Div. (per curiam) (24 pp. — including dissent by Skillman, J.A.D.) The majority finds that, while the trial judge took an active role in the trial, he did so impartially and within his power, right and the bounds of his duty, but the dissent concludes that the trial judge’s extensive questioning of defendant suggested disbelief concerning the truthfulness of his testimony, and consequently deprived him of a fair trial. CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-7169 State v. Cobb, App. Div. (per curiam) (10 pp.) Because defendant’s post-indictment, uncounselled, taped statement to the arresting detective should have been suppressed under State v. Sanchez, the court reverses the conviction for first degree aggravated sexual assault. FEDERAL COURT CASES BANKRUPTCY 42-7-7170 In re Lan Associates XI, L.P.; United States Trustee v. James J. Cain, Trustee, Dist. Ct. (Irenas, D.J.) (27 pp.) When, pursuant to 11 U.S.C. 363(k), an appointed trustee sells property in a “credit bid sale” to a claimholder whose claim is secured by a lien on that property, with the effect that the secured party offsets the amount of his lien against the full purchase price, the allowable compensation for the trustee may not be based on the full purchase price. The district court thus reverses the bankruptcy court’s fee award and remands for a new determination of the trustee�s compensation award. [Filed Aug. 12, 1998.] [For publication.] CIVIL PROCEDURE — DEFAULT JUDGMENTS 07-7-7171 Federal Home Loan Mortgage Corporation v. B&C Investment Associates et al., Dist. Ct. (Irenas, D.J.) (15 pp.) In suit based on promissory note, district court, finding (1) that there will be no prejudice to FHLMC, (2) that defendant�s failure to file a timely response to FHLMC�s complaint was more likely the result of a strategic decision he made with his counsel rather than a culpable act and (3) that defendant has raised genuine litigable issues as to his personal liability, grants motion to vacate default (subject to conditions), denies FHLMC�s motion for an in personam judgment against defendant and defer FHLMC�s motion for entry of a final judgment of in rem foreclosure on the property which is the subject of this litigation. [Filed Aug. 12, 1998.] [For publication.] CONSTRUCTION — SURETIES — ASSIGNMENTS — PRIORITIES 43-7-7172 General Ins. Co. of America, etc. v. The Jt. Meeting of Essex and Union Counties, et al., U.S. Dist. Ct. (Wolin, U.S.D.J.) (26 pp.) The court analyzes the contractor’s assignment to its surety, and finds that it was an absolute assignment, that no UCC filing or recordation was necessary to perfect the security interest, and that it was made well before the IRS acquired its tax lien against the contractor; therefore, the contractor had no interest in the arbitration award at issue and the court denies the IRS’s request that the Court should direct payment of the contractor’s federal tax claims before distribution of the award to the surety. [Filed Aug. 4, 1998.] CONTRACTS — INJUNCTIONS 11-7-7173 DePuy, Inc. v. Biomedical Engineering Trust, U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (10 pp.) In a case dealing with disputed royalty payments, the court finds that the plaintiff’s interpleader action filed in Indiana — concerning to whom the royalty payments are due — is sufficiently distinct from the action before this court, which involves the amount to be paid; therefore, the court refuses to enjoin the Indiana action under either the All-Writs Act or under an exception to the Anti- Injunction Act. [Filed Aug. 5, 1998.] ADMINISTRATIVE LAW DECISIONS PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-7174 Bland v. Dept. of Public Safety, etc., OAL (Weiss, A.L.J.) (8 pp. — includes ALJ’s initial decision and final decision by Anselmini, Commr.) Removal of juvenile detention officer was justified since (1) the officer had notice of the County’s policy requiring him to submit a written report concerning his use of prescription medication, and failed to comply; and (2) the officer was warned concerning his excessive absences, and continued to incur them. [Initial decision dated Oct. 31, 1997; Final decision dated Jan. 12, 1998.] 01-CSV-7175 Berish, et al. v. Hamilton Twp. Police Dept., OAL (Scott, A.L.J.) (11 pp. — includes ALJ’s initial decision and final decision by Anselmini, Commr.) Although public intoxication can support a finding of unbecoming conduct, the police officers’ intoxication at one of the officer’s private bachelor party does not, and, since there is no evidence that either of the officers did anything other than consume alcoholic beverages, and did nothing untoward to the exotic dancer at the party (although another guest may have), the suspensions of the officers are reversed. [Initial decision dated May 23, 1997; Final decision dated Aug. 1, 1997.] 01-CSV-7176 Haynes v. New Lisbon Dev. Ctr., etc., OAL (Lavery, A.L.J.) (12 pp. — includes ALJ’s initial decision and final decision by Anselmini, Commr.) While sexual innuendo was not unknown among the workers at the developmental center, the appellant/cottage training supervisor’s remarks went well beyond the norm which prevailed, and constituted repeated violations of the well- articulated policy against sexual harassment; because the supervisor exercised a control and power to discipline which increased the degree of gravity to be attached to these already serious offenses, he was properly removed. [Initial decision dated Aug. 8, 1997; Final decision dated Dec. 2, 1997.] 01-CSV-7177 Fenkel v. Police Dept. of…New Brunswick, OAL (Tylutki, A.L.J.) (34 pp. — includes ALJ’s initial decision and final decision by Anselmini, Commr.) Although there appears to be some difference of opinion as to the role of a captain/watch commander, and the police captain here did not engage in affirmative wrongdoing, but rather on his mistaken understanding of what was appropriate, the captain is found to have spent excessive time outside police headquarters, inconsistent with his duties and responsibilities and in violation of the implicit standard of good behavior expected of all officers; in light of his exemplary record, however, thirty day suspension is reduced to ten days. [Initial decision dated Jun. 2, 1997; Final decision dated Aug. 1, 1997.] PUBLIC EMPLOYEES — RESIGNATION NOT IN GOOD STANDING 01-CSV-7178 Aikens v. Riverfront State Prison, OAL (Scott, A.L.J.) (8 pp. — includes ALJ’s initial decision and final decision by Howard, Presiding Board Member) Assistant storekeeper at state prison was properly resigned not in good standing where, although on a leave of absence to attend a 30-day drug rehabilitation program, he left the program voluntarily, did not request or receive a further leave of absence, and did not report to work when told to. [Initial decision dated Jan. 10, 1997; Final decision dated Feb. 18, 1997.]

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