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STATE COURT CASES ATTORNEY/CLIENT 04-2-7684 Van Belle v. Bottinelli, et al., App. Div. (per curiam) (15 pp.) In case where the critical issue is whether it was malpractice for defendants to consent to the application of Netherlands law in plaintiff’s underlying federal products liability action, the motion judge erred in granting summary judgment to the defendants; whether defendants made a choice-of-law analysis, whether they knew enough about Netherlands law to do so, and whether their conclusions were or were not reasonable are all questions for a jury to decide. CIVIL PROCEDURE — DEPOSITION TRANSCRIPTS 07-2-7685, App. Div. (per curiam) (5 pp.) In case brought by court reporting service seeking payment for deposition transcripts from non-party witness, the trial judge erroneously interpreted R. 4:14-6(c) and agreed with the defendant/non-party that he was an “adverse party” entitled to a free copy of the transcript; the rule is designed to keep parties on an equal footing with respect to access to discovery, and does not address the rights of non-party witnesses. [Decided Oct. 14, 1998; Approved for publication Apr. 8, 1999.] CIVIL PROCEDURE — SERVICE 07-2-7686 The N.J. People, Inc., etc. v. ROI Systems, etc., et al., App. Div. (per curiam) (5 pp.) Where person who acknowledged service was neither the individual defendant nor his wife, and where there is no evidence that defendant actually received either the summonses or complaints, or other notice that suit had been instituted, a hearing should have been held on defendant’s motion to vacate default to examine the service issue. DEBTOR/CREDITOR — FORECLOSURE 15-2-7687 State Street Bank and Trust Co., etc., et al. v. Airport Realty Corp., et al., App. Div. (per curiam) (6 pp.) In this foreclosure action, the motion judge did not err in relying on the conclusion reached by a court-appointed neutral third-party regarding the allocation of payments made by defendant as mortgagor to plaintiff as mortgagee, and order authorizing the release of certain escrow funds to plaintiff is affirmed. EDUCATION 16-2-7688 Summers v. Bd. of Education of…Union City, etc., App. Div. (per curiam) (4 pp.) Commissioner of Education properly determined that plaintiff’s acceptance into the early retirement incentive program was a condition precedent to her resignation/retirement from her tenured position and, because she did not qualify for such program, no resignation occurred; plaintiff’s reinstatement with back pay is affirmed. FAMILY LAW — CHILD SUPPORT 20-2-7689 Rubio v. Andeliz, App. Div. (per curiam) (3 pp.) Because child support award was calculated on defendant’s income prior to a catastrophic accident, and is payable from exempt income, the panel reverses the support order and remands for a new hearing. INSURANCE — DISABILITY 23-2-7690 Steiert v. The Equitable Life Assurance Society of the U.S., App. Div. (per curiam) (4 pp.) Plaintiff is not entitled to coverage under his former disability policy with defendant since (1) he never put defendant on notice of the disability and (2) since he cancelled the policy and cannot now, two years later, attempt to rescind the cancellation. INSURANCE — U.I.M. BENEFITS — ARBITRATION 23-2-7691 Dwyer v. State Farm Mutual Automobile Ins. Co., et al., App. Div. (per curiam) (8 pp.) Panel reverses judgment vacating an arbitration award entered after a hearing on a UIM claim filed by plaintiff against State Farm; the judges find no statutory or caselaw basis for vacating the arbitrators’ award, and disagree with the trial judge’s finding of an inconsistency in the supplemental arbitrators’ opinion regarding the effect of a workers’ compensation lien on the award. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7692 Velez v. Bd. of Review, et al., App. Div. (per curiam) (3 pp.) Claimant is not entitled to unemployment benefits, since he made a voluntary choice to accept the certainty of the early retirement pension package over the uncertainty of future layoffs; having made that choice, claimant cannot now say that he was involuntarily terminated. LANDLORD/TENANT — NEGLIGENCE — SMOKE DETECTORS 27-2-7693 Burke, etc., et al. v. Wilson, et al., App. Div. (per curiam) (12 pp.) In a case arising from a non-working smoke detector and the death of plaintiff’s decedent in a fire in their rented home, inter alia, although the trial court correctly ruled that landlords/defendants did not have a duty to conduct regular inspections of the smoke detectors on the demised property, he incorrectly ruled that plaintiffs/tenants did not have a cause of action against the landlords based on the alleged negligence of the electrical contractor who installed the detectors; plaintiffs/tenants, having secured an expert opinion on the issue of the electrician’s negligence in failing to utilize a dedicated circuit, were entitled to present that issue to the jury, and the trial court’s determination to the contrary was error. NEGLIGENCE — EXPERT TESTIMONY 31-2-7694 Todd, Jr. v. Twp. of So. Brunswick, et al., App. Div. (per curiam) (4 pp.) Plaintiff’s negligence claim against County — for an automobile accident caused by a raised manhole cover — was properly dismissed because plaintiff’s liability expert had come up with a new and previously undisclosed theory as to liability on the eve of trial, and, without such testimony being admitted, plaintiff was unable to prove a prima facie case against the County. NEGLIGENCE — RESTAURANTS 31-2-7695 Beechler, et ux. v. Chi-Chi’s Mexican Restaurant, et al., App. Div. (per curiam) (16 pp.) No cause verdict is affirmed in plaintiff’s fall-down case involving her allegedly tripping over a raised plastic strip on the defendant restaurant’s floor; contrary to plaintiff’s contention, inter alia, the jury could reasonably have concluded that (1) plaintiff was lighting a cigarette and not looking where she was going, (2) she had not proven that she had actually fallen on the raised strip, or it might have concluded that, because plaintiff did not see the raised strip before she fell, it might have become raised because she hit it with her foot when she fell, or (3) she fell for some reason other than the strip. NEGLIGENCE — SHOPPING CENTERS 31-2-7696 Leone v. G.B., Ltd., etc., et al., App. Div. (per curiam) (5 pp.) In case where plaintiff fell on the ramp leading from supermarket sidewalk to parking lot, the judge correctly granted summary judgment to supermarket and remaining defendants other than the municipality which owned the property; neither landlord or tenant had the duty to correct an allegedly defective condition on property owned by neither of them, and the panel also rejects plaintiff’s argument that the ramp is akin to a sidewalk and subject to sidewalk negligence principles; plaintiff settled with the municipality which owned the property on which she fell and has not been left without recourse. PHYSICIAN/PATIENT 29-2-7697 Barrantes, et ux. v. Raritan Bay Medical Ctr., et al., App. Div. (per curiam) (16 pp.) Judge’s granting of involuntary dismissals on plaintiff’s informed consent and negligent hysterectomy claims was error and requires reversal and submission of those claims to a jury. Jury’s verdict in favor of the doctor on the remaining negligent after-care claim is affirmed. 29-2-7698 Thomas, etc. v. Braun, et al., App. Div. (per curiam) (17 pp.) $730,440 verdict against doctor is affirmed, the court finding, inter alia, that although the verdict sheet might have better focused the jury on proximate cause, in light of the accurate jury charge, the failure to separate the issue of proximate cause in the verdict sheet was not capable of producing an unjust result; and the trial judge did not err (1) by not giving a complete Scafidi charge on proximate cause; (2) by not giving a specific interrogatory relating to pain and suffering attributable to defendant; (3) by permitting jury to consider future lost wages; and (4) by permitting plaintiff’s expert, a neuropathologist, to render an opinion on the standard of an emergency room physician. TAXATION — TAX SALES — COUNSEL FEES 35-2-7699 Bankers Trust Co. v. Cuthbertson, et ux. v. Boatmen’s Natl. Mortgage, Inc., et al. v. Johnson, et ux., App. Div. (per curiam) (7 pp.) In case where property owners’ mortgage payments were somehow misapplied, resulting in an ultimate tax sale foreclosure being instituted on their property, and where the property owners, the municipality and the mortgage companies all became involved in litigation before the matter was straightened out, the panel disagrees with the lower court judge’s finding that the municipality acted in bad faith, such that it should be responsible for property owners’ counsel fees; it took a great deal of time to get to the bottom of things, and there was neither malice nor a totally unwarranted legal position, but rather a relatively prompt effort to investigate all tax payment records while preserving the municipal right to recover taxes due from the various properties involved. FEDERAL COURT CASES CONTRACTS 11-7-7700 Scenic Service, Inc., et al. v. Exxon Co., USA, et al., U.S. Dist. Ct. (Lifland, U.S.D.J.) (9 pp.) In a case where the court has previously held that defendant justifiably terminated the franchise relationship with plaintiff, it now grants defendant’s motion for summary judgment on its breach of contract counterclaim for fuel and rent payments due under two separate agreements. [Filed Oct. 2, 1998.] DEBTOR/CREDITOR 15-7-7701 R.L. Wickman & Assoc., Inc., et al. v. Kennedy Funding, Inc., et al., U.S. Dist. Ct. (Walls, U.S.D.J.) (18 pp.) The court grants summary judgment to defendants — dismissing plaintiffs’ complaint seeking damages for the defendants’ alleged failure to provide a loan — finding, inter alia, that: (1) defendant did not breach the commitment and plaintiff is not entitled to a refund of fees paid; (2) defendant did not fraudulently misrepresent that it had performed due diligence nor did it fraudulently reaffirm its intention to lend plaintiff the money; (3) defendant did not engage in false and deceptive acts in violation if the Consumer Fraud Act; and (4) defendant did not breach the implied covenant of good faith and fair dealing. [Filed Oct. 2, 1998.] ADMINISTRATIVE LAW DECISIONS CONSUMER PROTECTION — LEMON LAW 01-CMA-7702 Munson v. Mitsubishi Motor Sales, OAL (Weiss, A.L.J.) (8 pp.) Although petitioner testifies sincerely as to perceived problems with her vehicle’s transmission, the problems could never be duplicated by the dealer even though the car was always road tested and checked out on the computer, and Lemon Law relief is denied. [Initial decision dated Sept. 14, 1998.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-7703 Bolling v. Dept. of Human Services, OAL (Tassini, A.L.J.) (8 pp.) Respondent has not sustained its burden of proving that petitioner — a cottage training technician — pushed a client, endangering him and constituting “inappropriate contact” justifying her removal; instead, the evidence shows that petitioner intercepted the client (who had a history of acting out and eating garbage), placed her hands on his upper arms and directed him away from the kitchen garbage to the dayroom. [Initial decision dated Sept. 16, 1998.] PUBLIC EMPLOYEES — WORKING TEST PERIOD 01-CSV-7704 Reid v. Burlington Cy. Corrections Dept., OAL (Tassini, A.L.J.) (17 pp.) Although the appointing authority failed to properly furnish progress reports to corrections officer during his working test period, it did notify the officer, through its numerous disciplinary actions before and during his working test period, that his lack of punctuality was unsatisfactory; the evidence shows that the officer was given sufficient notice and opportunity to reform, yet failed to do so, and his termination was not in bad faith. [Initial decision dated Sept. 22, 1998.] SPECIAL EDUCATION 01-EDS-7705 W.M., etc. v. Washington Twp. Bd. of Education, OAL (Metzger, A.L.J.) (8 pp.) Examining the various options for placement, program and related services for third-grade auditorily-handicapped student, the ALJ concludes that he should attend the Bell’s School for the 1998-99 school year, that his program is to include music, and that his family is to receive forty, one-hour sessions of home instruction in sign language. [Final decision dated Sept. 4, 1998.] 01-EDS-7706 Bayonne Bd. of Education v. W.H., OAL (Lucchi-McCloud, A.L.J.) (8 pp.) After expressing concern that the parents have ceased to participate in the process, the ALJ concludes that the Board’s proposed change in student’s classification from NI to NI communication handicapped, and the consequent changes in his IEP, are appropriate. [Final decision dated Sept. 18, 1998.]

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