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STATE COURT CASES ARBITRATION 03-2-6529 Automotive Educational Subliminal, Inc. v. Ferrigan, App. Div. (per curiam) (7 pp.) Based on the arbitration clause in the parties’ contract, the court correctly compelled NY defendant to arbitrate NJ plaintiff’s contract claim in NJ, rejecting defendant’s argument that the arbitration and choice of law clauses are agreements of adhesion and unenforceable. ATTORNEY/CLIENT — PRO HAC VICE ADMISSION 04-2-6530 N.A.A.C.P., et al. v. State of N.J., etc., App. Div. (Kestin, J.A.D.) (16 pp.) The trial court’s finding that there was a showing of “countervailing considerations” to deny pro hac vice status to two out of state attorneys (which the court had found to have satisfied the good cause requirement of R. 1:21-2(a)(3)) was deficient, and the order denying admission is reversed. [Approved for publication Jun. 22, 1998.] CONSTRUCTION 43-2-6531 Onorato Constr., Inc. v. Eastman Constr. Co., App. Div. (Dreier, P.J.A.D.) (10 pp.) Where there was evidence that general contractor had undertaken to protect sub-subcontractor plaintiff and other suppliers of defaulting subcontractor, summary judgment should not have been granted to the general contractor on plaintiff’s suit for payment. [Approved for publication Jun. 22, 1998.] CONTRACTS — PAROL EVIDENCE 11-2-6532 Envitech, Inc. v. Joseph, et al. v. Foss, et al., App. Div. (per curiam) (8 pp.) Plaintiffs offered nothing to support their contention that the true intent of the parties in inserting the “hazardous waste” clause in the joint venture development agreement was to guarantee that a cleanup of contamination would not be needed to develop the property, and parol evidence could not be admitted to impose such an intent; summary judgment was properly entered in favor of landowner and his attorney. CORPORATIONS — BANKRUPTCY — ENTIRE CONTROVERSY 12-2-6533 Manhattan Woods Golf Club, Inc. v. Arai, et al., App. Div. (Kimmelman, J.A.D.) (6 pp.) Paragraph in corporate debtor’s reorganization confirmation order preserved its rights to pursue any claim it might have available to it under NY law in any appropriate forum, and judge erred in dismissing corporation’s breach of fiduciary duty suit against defendant — its former president and director — on entire controversy grounds for failure to raise the issues in the bankruptcy proceedings, wherein the defendant had been a claimant. [Approved for publication Jun. 22, 1998.] FAMILY LAW — ALIMONY 20-2-6534 Firestone v. Firestone, App. Div. (per curiam) (11 pp.) (1) Temporary setbacks in defendant’s real estate business do not justify a reduction of alimony, particularly in light of defendant’s earning potential, and there is no basis to disturb the judge’s award of permanent alimony to plaintiff after a 30-year marriage during which she devoted most of her time to raising the parties’ three children, worked part-time in the family business and did not use the skills acquired during her education to develop or work in any professional practice. (2) Court’s orders relating to defendant’s need to conduct a job search to supplement his income and to report to the probation department are counterproductive and adversely affect his ability to earn commissions. 20-2-6535 Mann v. Mann, App. Div. (per curiam) (8 pp.) Judge erred in sua sponte retroactively reducing the amount of alimony, where the husband had moved unsuccessfully three times pre-trial for such relief. FAMILY LAW — SETTLEMENT AGREEMENTS 20-2-6536 Shapiro v. Shapiro, App. Div. (per curiam) (11 pp.) There is no factual support for defendant’s assertion that she did not freely enter into the property settlement agreement because she was pressured to execute it by her attorney, and her application to set the agreement aside was properly denied. INSURANCE — VERBAL THRESHOLD 23-2-6537 Rosado v. GMAC, et al., App. Div. (per curiam) (7 pp.) Motion judge erred in concluding that, because plaintiff had only lost three days of work, the impact on his life from his accidentally-caused disc herniations was not serious; plaintiff’s lifestyle outside his workplace has been greatly curtailed, being more reflective of a sedentary older person rather than a vibrant 27-year old. LABOR AND EMPLOYMENT — L.A.D. 25-2-6538 O’Lone v. N.J. D.O.C., et al., App. Div. (Wallace, Jr., J.A.D.) (9 pp.) Where non-minority plaintiff is wrongfully discharged for associating with a member of a protected group, that is the functional equivalent of being a member of the protected group, and court erred in dismissing white plaintiff’s LAD complaint alleging that he was terminated for dating an African-American woman. [Approved for publication Jun. 22, 1998.] LAND USE — DE FACTO MORATORIUM 26-2-6539 Toll Bros., Inc., etc. v. West Windsor Twp., etc., et al., App. Div. (D’Annunzio, J.A.D.) (14 pp.) “Timed Growth Controls” in municipal zoning ordinance were properly invalidated since they constituted a de facto moratorium prohibited by N.J.S.A. 40:55D-90b. [Approved for publication Jun. 22, 1998.] LAND USE — ENVIRONMENT — HISTORIC DISTRICTS 26-2-6540 Beattystown Community Council v. D.E.P., et al., App. Div. (P.G. Levy, J.A.D.) (14 pp.) Court affirms the DEP’s approval of shopping center and roadway improvements located within municipal historic district, finding that N.J.S.A. 13:13B-15.131 does not direct emulation of any of the three federal legislative schemes asserted by plaintiff, and that the NJ version of reviewing “feasible and prudent alternatives” is reasonable. [Approved for publication Jun. 22, 1998.] LAND USE — REZONING 26-2-6541 Rosa, et al. v. Middletown Twp. Planning Bd., et al., App. Div. (per curiam) (5 pp.) Court affirms the dismissal of plaintiffs’ challenge to the rezoning of their property from a one-half acre residence zone to a two-acre residential zone, which rezoning was done for environmental reasons. NEGLIGENCE — AUTO ACCIDENTS 31-2-6542 Edmiston, et ux. v. Rizzo, et al., App. Div. (per curiam) (15 pp.) (1) Plaintiff’s expert’s opinion was not a net opinion; and (2) $800,000 per quod verdict was not excessive nor grossly disproportionate to $1 million award on plaintiff’s primary claim; however (3) plaintiff is entitled to a new trial as to his lost wage claim because the order barring this claim was mistakenly entered. NEGLIGENCE — CHEMICAL PLANTS 31-2-6543 Harris, et al. v. Peridot Chemical, etc., App. Div. (Baime, J.A.D.) (52 pp.) In this case where plaintiffs sought to recover damages for injuries sustained as a result of their exposure to various chemicals emitted by defendant’s chemical facility, the judge did not err (1) in admitting evidence of prior and subsequent releases of gas since such evidence was relevant and its probative value was not outweighed by the risk of undue prejudice; and (2) in admitting evidence pertaining to remedial measures taken after the first accident but before the second. [Approved for publication Jun. 22, 1998.] NEGLIGENCE — PUBLIC ENTITIES — SIDEWALKS 31-2-6544 Turner, et ux. v. Angelsea Volunteer Fire Co. #1, et al., App. Div. (per curiam) (5 pp.) Where plaintiff fell on icy sidewalk outside of firehouse in which public had been invited to play bingo, summary judgments entered for the defense are vacated and inadequate record necessitates remand for consideration of whether section seven immunity — providing that a public entity is not liable for an injury caused solely by the effect of weather conditions on the use of streets and highways — applies to sidewalks, and whether the defendant volunteer fire company is a public entity entitled to immunity in this case. NEGLIGENCE — SNOW REMOVAL IMMUNITY 31-2-6545 O’Neill, etc. v. Yang, et al., App. Div. (per curiam) (9 pp.) Summary judgment was properly granted to defendant State in this case where plaintiff was injured in an auto accident on a snowy road; the State’s snow removal activities entitled it to immunity in this case under the common law doctrine reaffirmed in Rochinsky v. State, D.O.T. FEDERAL COURT CASES CIVIL PROCEDURE — SERVICE 07-7-6546 Reid v. N.J. Transit, U.S. Dist. Ct. (Bassler, U.S.D.J.) (5 pp.) The court grants the defendant’s motion to dismiss this employment discrimination case for failure of service: (1) since “the lesson to the federal plaintiff’s lawyer is not to take any chances (and) to treat the 120-day (service period) with the respect reserved for a time bomb,” and plaintiff’s failure here to timely serve the defendant by thirty-five days suggests inadequate due respect for the limit; and (2) since counsel further impedes the court’s attempt to determine whether the failure to serve was due to good cause, by not providing opposition to the motion to dismiss, despite three extensions received. [Filed Jun. 10, 1998.] PENSIONS — ATTORNEY’S FEES 56-7-6547 Goldstein, etc. v. Johnson & Johnson, et al., U.S. Dist. Ct. (Wolin, U.S.D.J.) (7 pp.) Award of attorney’s fees against unsuccessful ERISA plaintiff would be an extraordinary remedy to the successful defendant, and, since the magistrate judge concluded that plaintiff’s actions in suing for plan benefits were not taken in bad faith, frivolously, or unreasonably, the defendant’s request for fees was properly denied. [Filed Jun. 9, 1998.] PUBLIC RECORDS — FREEDOM OF INFORMATION ACT 52-7-6548 OSHA Data, etc. v. U.S. Dept. of Labor, U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (11 pp.) The court grants defendant’s motion to stay proceedings in which plaintiff — under the FOIA � seeks information obtained from some 75,000 businesses to the 1996 OSHA survey; exemption 4 of the FOIA provides that a document is exempt from mandatory disclosure if the information is financial or commercial in nature, has been obtained from a person and is confidential or privileged, and the court determines that the submitters must be contacted to ascertain whether or not there are any objections to the dissemination of the requested information. The court orders plaintiff to pay the substantial cost defendant will incur in notifying each of the 75,000 businesses. [Filed Jun. 11, 1998.] ADMINISTRATIVE LAW DECISIONS CONSUMER PROTECTION — LEMON LAW 01-CMA-6549 Greene v. Fleetway Chrysler Plymouth, Inc., OAL (Springer, A.L.J.) (13 pp. — includes both ALJ’s initial decision and final decision adopting same by Herr, Dir.) Unrepairable drivetrain problems in petitioner’s 1992 used Dodge Daytona — characterized by an inability to start the engine and recurring oil leaks — constitute a material defect entitling petitioner to full purchase price refund less a deduction for personal use. [Initial decision dated Apr. 23, 1998; Final decision dated May 15, 1998.] EDUCATION 01-EDU-6550 E.F., etc. v. Bd. of Education of…Branchburg, etc., OAL (Clark, A.L.J.) (12 pp.) “Neither severance of a de facto sending/receiving relationship, practices of past boards of education, equitable estoppel, the constitutional and statutory rights to notice, constitutional rights to choose among educational programs and to a public education, nor past lack of enforcement of laws against housing discrimination entitles petitioner to a free out-of-district public education where special education laws or lawfully drafted and applied school board policy do not so mandate.” [Initial decision dated Mar. 11, 1998.] LABOR — UNEMPLOYMENT CONTRIBUTIONS 01-LID-6551 Potter Associates, Inc. v. N.J. Dept. of Labor, OAL (Scott, A.L.J.) (6 pp.) The ALJ finds that some home inspectors which petitioner remunerated were independent contractors, and some were employees for unemployment contribution purposes. [Initial decision dated Apr. 22, 1998.] MUNICIPAL EMPLOYEES — TENURE 01-CAF-6552 Twp. of Carney’s Point v. Bingham, etc., OAL (Tassini, A.L.J.) (15 pp.) Despite respondent/chief financial officer’s various terms of office with the municipality, she has not obtained tenure under any of the statutory criteria. [Initial decision dated Apr. 8, 1998.] PENSIONS — RE-ENROLLMENT 01-TYP-6553 Rakoff v. Bd. of Trustees of P.E.R.S., OAL (Weiss, A.L.J.) (14 pp.) Pursuant to N.J.S.A. 43:15A-65(b), petitioner was required to be re-enrolled in PERS when she was reemployed in 1989 in her part-time position, and, in light of the nature of her continuous employment during the six-year period following, she was not by any reasonable view a “temporary,” “noncontinuous” or “seasonal” worker, and all service retirement benefits paid to her during that time must be canceled and refunded by her. [Initial decision dated Apr. 21, 1998.]

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