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STATE COURT CASES FAIR HOUSING 41-2-6415 Dunn, etc., et al. v. Jewish Educational Ctr., etc., et al., App. Div. (Carchman, J.S.C., t/a) (16 pp.) In case where municipality initially approved plan for converting defendant’s property into a group home for emotionally disturbed teenagers, and issued stop work order after the necessary renovations were nearly completed, the trial judge properly found FHAA and LAD violations, and panel holds that the landowner defendant is entitled to counsel fees and damages not only to the time of trial but also to the time of the court’s decision, rejecting the view that the trial judge’s delay in rendering a decision tolled the damage claim. Further, co-landowner, while also a “prevailing party,”is not entitled to counsel fees because he was pro se. [Approved for publication Jun. 15, 1998.] FAMILY LAW — DUTY TO WARN 20-2-6416 Militari, etc. v. Estate of Gandalfo, et al., App. Div. (per curiam) (3 pp.) Judge properly dismissed wife’s claim against her deceased husband’s step brothers and their wives, ruling that they owed the wife no duty to warn her prior to the marriage of her then-intended husband’s infectious diseases and drug addictions. INSURANCE — HEALTH 23-2-6417 Newark Beth Israel Med. Ctr. v. Parziale, et ux. v. Bd. of Trustees, etc., App. Div. (per curiam) (8 pp.) Husband’s Welfare Fund health plan was properly held liable to wife for coverage for her kidney surgery and treatments, the court rejecting Fund’s arguments that the claim was time- barred or constituting a pre-existing condition. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-6418 Costa v. N.J.A.F.I.U.A., App. Div. (per curiam) (6 pp.) Order directing defendant to pay UM benefits to plaintiff is reversed, since the incident — where plaintiff was mugged and dragged about 50 feet by someone in a passing car while she was walking in a store parking lot — did not constitute an “accident” for UM purposes. 23-2-6419 Todd, et ux. v. Suta, et al., App. Div. (per curiam) (18 pp.) Although the court acknowledged that the identity of the vehicle which hit plaintiff was disputed, the court also properly noted that plaintiff chose his forum to resolve the issue when he filed his civil suit alleging a defined vehicle to be the “hit and run” vehicle, and, having elected to settle with the identified defendants, should not now be allowed a second forum to present his UM claim. INSURANCE — VERBAL THRESHOLD 23-2-6420 Suarez v. Shoemaker, App. Div. (per curiam) (4 pp.) Since there was no showing that the medical information — garnered subsequent to the grant of the defendant’s originally uncontested motion for summary judgment — could not have been discovered with due diligence prior to the entry of such judgment, the judge properly held it was not “newly-discovered” and the prior judgment should not be vacated. INSURANCE — WORKERS’ COMPENSATION — SEXUAL HARASSMENT 23-1-6421 Schmidt v. Smith, et al., Supreme Ct. (O’Hern, J. ) (15 pp.) The provision contained in the employer’s liability section of plaintiff’s employer’s workers’ compensation policy — excluding from coverage bodily injuries caused by acts of sexual harassment in the workplace — violates public policy and is therefore void. INSURANCE — EMPLOYERS — WRONGFUL TERMINATION 23-1-6422 American Motorists Ins. Co., et al. v. L-C-A Sales Co., et al., Supreme Ct. (Stein, J. ) (23 pp.) The “employee exclusion” contained in the insurers’ comprehensive general liability insurance policy precluded the employer, a corporate policyholder, from securing coverage for damages arising from the employee’s claim of wrongful termination. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-2-6423 Gorman v. Reckitt & Colman, Ltd., etc., et al., App. Div. (per curiam) (23 pp.) Plaintiff has not established a prima facie case of age discrimination in case where his position was eliminated when the part of the business he had managed was sold to another entity, which reorganized and did not offer plaintiff a spot in the reorganization because not qualified for the newly created position. LABOR AND EMPLOYMENT — C.E.P.A. 25-2-6424 Beck v. Tribert, et al., App. Div. (Kleiner, J.A.D.) (22 pp.) (1) CEPA does not apply to post-employment retaliatory negative references; (2) plaintiff’s CEPA claim for retaliatory discharge was time-barred; (3) common law wrongful discharge claim was properly dismissed on summary judgment because he reported defendants to OSHA after he was fired; (4) plaintiff was not entitled to partial summary judgment that his termination was in retaliation for attempting to protect his right to a safe workplace; (5) plaintiff’s slander claim was properly dismissed; and (6) plaintiff’s claim for interference with advantageous relations with prospective employers was properly dismissed for lack of sufficient evidence. [Approved for publication Jun. 15, 1998.] NEGLIGENCE — WORKPLACE 31-2-6425 Wardrick v. Macy’s New Jersey, Inc., et al., App. Div. (per curiam) (5 pp.) There was an insufficient factual basis to hold defendant department store liable in case where plaintiff was injured while employed by contractor which the department store had hired to paint chimney cap, since the store retained no control over the work, and there was no evidence that the contractor was incompetent, nor that the work was inherently dangerous. REAL ESTATE 34-2-6426 Frank, et al. v. Iazzetti, et al., App. Div. (per curiam) (17 pp.) Plaintiffs’ claim that defendants made fraudulent representations — concerning title to certain properties to which plaintiffs were granted options to purchase — was properly dismissed as barred by the applicable six year statute of limitations. TAXATION 35-2-6427 Sutkowski, et ux. v. Dir., Div. of Taxation, App. Div. (Keefe, J.A.D.) (22 pp.) NJ resident/taxpayer, who receives a distribution from a NY subchapter S corporation of which he is the sole stockholder, is entitled to a tax credit on his NJ Gross Income Tax return for taxes paid to NY by the corporation. [Approved for publication Jun. 15, 1998.] TORTS — POLICE PURSUIT IMMUNITY 36-2-6428 Carnevale v. Malfa, et al., App. Div. (per curiam) (5 pp.) Trial court erred in ruling that police officer was immune from injuries caused to plaintiff in her auto accident with his police car, since, on the facts of this case, the officer was not involved in a “police pursuit” entitling him to absolute immunity. TORTS — TORT CLAIMS ACT 36-2-6429 Quazzi, et ux. v. City of Linden, et al., App. Div. (per curiam) (6 pp.) In case involving plaintiff’s fall on train station stairway, the panel holds that the Law Division judge failed to view the evidence in a light most favorable to the plaintiff as he was required to do on a motion for summary judgment; and the panel reverses the grant of summary judgment to the defense, finding that there is sufficient evidence that a dangerous condition of public property existed at the time of the accident, that defendants had constructive notice of the condition, and that it was a proximate cause of plaintiff’s injury. UTILITIES 37-2-6430 Old Bridge M.U.A., etc. v. Cy. of Middlesex, etc., App. Div. (per curiam) (5 pp.) Judge correctly held that municipal utilities authority, not county, was responsible for bearing the expense of relocation of the MUA’s utility lines in the public roadway necessitated by a county road improvement project. WRONGFUL DEATH/SURVIVORSHIP — PUNITIVE DAMAGES 40-2-6431 Smith, etc. v. Whitaker, Jr., et al., App. Div. (King, P.J.A.D.) (47 pp.) Although punitive damages are not recoverable under the Wrongful Death Act, they were properly awarded here in plaintiff’s survival action, even though no traditional compensatory damages for pain and suffering were awarded under that action; judge may have assumed that decedent was alive for a brief period of time after her impact with defendant’s fuel truck, and his conclusion that her damages claim should not depend on whether she died instantly or not is legally sound. [Approved for publication Jun. 15, 1998.] CRIMINAL LAW AND PROCEDURE — OTHER CRIMES EVIDENCE 14-2-6432 State v. Lloyd, App. Div. (per curiam) (7 pp.) Reversal of conviction of drug possession with intent to distribute is required due to the prosecutor’s erroneous reference to a stipulation which might have suggested that defendant’s doctor thought he was abusing drugs, implying guilt of crimes other than those with which defendant was charged. FEDERAL COURT CASES ANTITRUST 59-8-6433 City of Pittsburgh v. West Penn Power Comp. d/b/a Allegheny Power et al., Third Cir. (Rendell, C.J.) (31 pp., incl. dissent by Heaney, Senior C.J.) In its complaint, charging that two utility companies entered a pre-merger agreement in restraint of trade and that their proposed merger would substantially lessen competition or tend to create a monopoly, city failed to allege that it meets the prudential requirements of antitrust standing, i.e. an antitrust injury and a causal connection between the defendants’ actions and the alleged harm; thus the district court’s dismissal of the case is affirmed. [Filed June 12, 1998.] [For publication.] CONTRACTS — TORTIOUS INTERFERENCE 11-7-6434 General Messenger Svc. v. Corporate Express, Inc., etc., et al., U.S. Dist. Ct. (Bassler, U.S.D.J.) (20 pp.) Finding that plaintiff has sufficiently alleged facts to support its claims, the court denies defendant’s motion to dismiss in this case where plaintiff and defendant, both messenger services, once contemplated merger and exchanged confidential information, but where the acquisition talks ceased and plaintiff contends defendant utilized the confidential information obtained to tortiously interfere with its business and unfairly compete with it. [Filed Jun. 3, 1998.] DEBTOR/CREDITOR — FORECLOSURE — ESTOPPEL 15-7-6435 Saastopankkien Keskus-Osake Pankki (Skopbank) et al. v. Allen-Williams Corp. et al., Dist. Ct. (Brotman, D.J.) (15 pp.) Where defendant asserts in conclusory fashion that an earlier foreclosure action concerned property different from the property at issue here and therefore is not bound by that judgment, but its brief is devoid of specific proof supporting that contention, and where the thrust of defendant’s brief points to the need for further discovery, but the court granted such a request 13 months ago and defendant has produced nothing to supplement its earlier submission, court cannot find that there is a genuine issue of material fact in dispute and grants plaintiffs summary judgment of foreclosure. [Filed June 2, 1998.] [For publication.] LAND USE — ENTIRE CONTROVERSY 26-7-6436 Chen v. Mayor and Council of…Fairfield, et al., U.S. Dist. Ct. (Wolin, U.S.D.J.) (12 pp.) The court finds that plaintiff’s current civil rights case — challenging a municipal zoning ordinance deleting hotels as a permitted use — is barred by the statute of limitations, laches, res judicata and the entire controversy doctrine, plaintiff having filed a state action in 1989 based on the same claims. [Filed Jun. 3, 1998.] ADMINISTRATIVE LAW DECISIONS CIVIL RIGHTS — SEX DISCRIMINATION 01-CRT-6437 Mitchell v. Clark Police Dept., OAL (Gaeta, Jr., A.L.J.) (30 pp.) Although plaintiff, as the only female police officer in her department, has no doubt had difficult times due to her sex and pregnancy, the ALJ finds that her Chief has adopted a reasonable and prudent course of conduct in dealing with tensions on the job with other officers, she has not been subjected to any disciplinary action, and has not suffered from discrimination based on her sex. [Initial decision dated Mar. 23, 1998.] CONSUMER PROTECTION — LEMON LAW 01-CMA-6438 Bratter v. Ford Motor Co., OAL (Gaeta, Jr., A.L.J.) (6 pp.) Where petitioner has driven his 1997 Crown Victoria for some 21,000 miles, and has not experienced a breakdown related to his Lemon Law noise and vibration complaints, the complaints do not appear to affect the continued operation of the vehicle, and do not constitute a nonconformity warranting Lemon Law relief. [Initial decision dated Mar. 23, 1998.] EDUCATION — ETHICS — BOARD MEMBERS 01-EDU-6439 Bd. of Education of…Chester, etc. v. Riley, et al., OAL (Bari-Brown, A.L.J.) (14 pp.) Board members had an indirect personal interest in the outcome of a challenge to invalidate a special election that approved a referendum relating to the schools, and their involvement in the litigation created a conflict of interest; their failure to abstain from school matters relating to the referendum while the litigation was pending constituted intentional unethical conduct, warranting reprimands reflecting the deliberate and intentional nature of the misconduct. [Initial decision dated Mar. 6, 1998.] PENSIONS 01-TYP-6440 Collins, Sr. v. P.F.R.S., OAL (Dwyer, A.L.J.) (10 pp.) PFRS Board, in approving petitioner’s request for a special retirement, properly denied his request to add $8,500 to his base pay for the purpose of determining his final compensation at the time of his retirement, finding that the amount — received from the County as part of a settlement agreement at the time of his retirement — was not pensionable salary. [Initial decision dated Apr. 16, 1998.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-6441 Casiano v. Dept. of Public Safety, etc., OAL (Klinger, A.L.J.) (25 pp. — includes ALJ’s initial decision and final decision by Howard, Presiding Board Member) Police officer, working off-duty and in uniform to help direct traffic at the post office, was properly deemed unfit for and removed from his position based upon numerous civilian complaints about him and his actions in this incident, where, inter alia, he left his assigned post to pursue a driver who made a left turn against his orders, directed racial slurs and profanity at the driver, drew his gun in public, forcibly detained the driver for an unreasonable period of time, and refused to attend an Internal Affairs interview regarding the incident. [Initial decision dated Apr. 3, 1997; Final decision dated Oct. 16, 1997.]

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