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STATE COURT CASES� CONTRACTS 11-2-9366� Storch Engineers v. State of N.J., App. Div. (per curiam) (5 pp.)� In a dispute between the State Transportation Department and plaintiff consulting engineers, although the parties agreed that the concept of plaintiff’s recovering a self-insurance provision with respect to environmental and hazardous risks was acceptable, the judge properly found that the plaintiff had failed to prove that its charges therefor were reasonable. DEBTOR/CREDITOR� –� CONVERSION 15-2-9367� Crunden v. Edwards, et al., App. Div. (per curiam) (4 pp.)� In conversion case arising out a terminated romantic relationship wherein the defendant — plaintiff’s former paramour –� deposited plaintiff’s inheritance check in her (defendant’s) mother’s checking account (as the parties had previously been accustomed to doing to pay plaintiff’s bills while he was away at sea), but then converted the funds to her own (defendant’s) use, the judge properly dismissed plaintiff’s claim as to the mother, finding that she only allowed her account to be used out of the goodness of her heart as a convenience for the parties, and never had anything to do with the funds herself. EDUCATION� –� DOMICILE� –� TUITION 16-2-9368� Woodbury Heights Bd. of Education v. Starr, App. Div. (Lesemann, J.S.C.) (19 pp.)� (1) Motion judge was correct in concluding that student’s non-residency during the school year 1994-5 had already been determined in the prior administrative domicile action and should not be regarded as an unresolved issue of fact in the Law Division action brought by plaintiff for tuition owed.� (2) There was ample basis for charging defendant grandfather with tuition for that year, since he was the moving force in the student’s remaining in the school system after plaintiff raised the residency issue, and since it was he who appealed and litigated the non-residency determination.� (3) For two prior years for which plaintiff seeks tuition reimbursement, however, there is no rational basis for charging the tuition against the grandfather.� (4) The amendment to N.J.S.A. 18A:38-1, effective Jan. 11, 1994, cannot be applied to defendant retroactively to impose liability for the 1992-3 or 1993-4 years.� (5) Even assuming retroactivity, the newly adopted statute would not impose liability here.� [Approved for publication Mar. 25, 1999.] FAMILY LAW� –� CUSTODY 20-2-9369� Formalarie v. Formalarie, App. Div. (per curiam) (7 pp.)� Because the judge failed to make essential findings of material fact — specifically which parent had the children for more than fifty percent of the “overnights” per year as required by the rules — and failed to adequately explain the rulings underlying his order, the panel reverses and remands his determination that plaintiff was the parent of primary residence for purposes of calculating the amount and allocation of support payments under the Guidelines. INSURANCE� –� AUTOMOBILES 23-2-9370� Taylor v. Allstate Ins. Co.; Sensible Rent-A-Car v. Taylor, App. Div. (per curiam) (5 pp.) In case where plaintiff asserted that insurer was estopped from denying coverage under a policy that was not renewed (for lack of premium payment) because the company gave plaintiff, who was unaware of the lack of payment, a temporary insurance identification card that “covered” him for sixty days, during which the accident happened, the panel reverses the judgment in favor of the plaintiff because of the internal inconsistencies in the trial judge’s bench decision both on the issue of whether the insured plaintiff reasonably relied on the card, and in his calculation of the damages. INSURANCE� –� P.I.P. 23-2-9371� McMahon v. N.J. Mfrs. Ins. Co., App. Div. (per curiam) (5 pp.)� Since it does not appear that plaintiff’s conduct in missing defense-scheduled independent medical examinations was willful or contumacious to a degree sufficient to deprive her of her day in court, and since defendant has not shown that it will be prejudiced unduly in defense of plaintiff’s claim, the judge erred in dismissing plaintiff’s PIP suit based on her failure to provide discovery; the panel fully expects that any prejudice perceived by defendant will be erased by plaintiff’s good faith and prompt compliance with the outstanding discovery requests. INSURANCE� –� VERBAL THRESHOLD 23-2-9372� Grover v. Spiro, App. Div. (per curiam) (4 pp.)� Although plaintiff asserts that his lumbar disc bulge is a serious and objectively-corroborated injury, the panel notes that there is no evidence linking this condition to the accident; plaintiff’s doctor’s net opinion is not sufficient, and, thus, summary judgment was justifiably granted to the defense. 23-2-9373� Chappell, et ux. v. Pasquale, et ux., App. Div. (per curiam) (7 pp.)� Since plaintiff offered no objective medical evidence to support his claim of soft tissue injury, the judge was correct in granting summary judgment to the defense as to that claim; however, the panel reverses the summary judgment insofar as it applied to plaintiff’s compression fractures, finding sufficient evidence from which a factfinder could conclude that the fractures resulted from the accident. NEGLIGENCE� –� SEXUAL ASSAULT� –� LIMITATIONS 31-2-9374� M.H. v. Bigham, et ux. v. Suttong, App. Div. (per curiam) (4 pp.)� In case brought by 34- year old woman, claiming that her uncle had sexually abused her commencing when she was three or four and continuing until she was fourteen, the motion judge erred in dismissing the matter on limitations grounds without a hearing; plaintiff was entitled to a hearing as to the factual existence of circumstances which would have tolled the running of the statute of limitations. PENSIONS� –� DISABILITY RETIREMENT BENEFITS 56-2-9375� Kasper v. Bd. of Trustees of the TPAF, App. Div. (per curiam) (5 pp.)� While teacher was concededly totally and permanently disabled as a result of a mugging which took place on school steps as she was going into the school one morning, the ALJ properly found that the teacher was not entitled to disability retirement benefits since her entry upon the outside school steps was not found to constitute the start of her performance of her regular or assigned duties. PUBLIC EMPLOYEES� –� ELIGIBILITY 33-2-9376� Pena v. Merit Review System Board, App. Div. (per curiam) (3 pp.)� Since the announcement of examination for the position of Comptroller clearly specified a minimum period of supervisory experience and set forth a closing date for the filing of the application, the decision of the defendant declining to consider plaintiff’s late supplement to his application was neither arbitrary, capricious nor unreasonable; plaintiff gave no reason as to why the information regarding his additional experience was not included with either his initial application, or his first appeal. WORKERS’ COMPENSATION 39-2-9377� Komis v. Cy. of Atlantic, App. Div. (per curiam) (3 pp.)� Where petitioner/sheriff’s officer� injured his back during a heated confrontation with another officer, although petitioner did not fill out a formal accident report — testifying that he did not do so because he did not want to get the other officer, who was on probation, into trouble — the compensation judge justifiably held that the respondent was nevertheless given notice of the accident, since petitioner told his captain immediately, the captain authorized his early release to seek medical treatment, and petitioner was thereafter absent from work and advised the employer that it was due to the back injury. CRIMINAL LAW AND PROCEDURE� –� P.C.R. 14-2-9378� State v. Toler, App. Div. (per curiam) (4 pp.)� The Law Division judge erred in denying defendant’s first application for post-conviction relief where defendant was not provided with counsel. FEDERAL COURT CASES BANKRUPTCY 42-6-9379� In re: Dennis, et ux., Debtors, U.S. Bankruptcy Ct. (Stripp, U.S.B.J.) (26 pp.)� A secured creditor who objects to “cram down” of its claim must file a timely proof of claim and timely objection to confirmation.� If a tardy proof of claim and tardy objection to confirmation are filed, and the debtor objects on the grounds of tardiness, the proof of claim shall be disallowed, the objection to confirmation shall be overruled, and the secured creditor shall receive the payment proposed by the confirmed plan.� [Filed Feb. 23, 1999.][For publication.] LABOR AND EMPLOYMENT� –� FAMILY LEAVE ACT 25-7-9380� Barone v. Leukemia Society of America, U.S. Dist. Ct. (Irenas, U.S.D.J.) (24 pp.)� When, as here, an employee is on leave for the Family Leave Act-qualifying reason of caring for a sick relative, such relative dies, and the employee immediately indicates a desire to return to work, the employer has the minimal obligation to advise the employee at what point she must return to maintain her FLA protection.� In this limited circumstance, an employer who fails to so advise the employee violates the notice provisions of the FLA.� Defendant’s motion for summary judgment on plaintiff’s contract claims is granted, but the defendant’s motion on plaintiff’s FLA claim will be denied.� [Filed Nov. 25, 1998.][For publication.] ADMINISTRATIVE LAW DECISIONS PUBLIC EMPLOYEES� –� DISCIPLINE 01-CSV-9381� Bryan v. North Jersey Dev. Ctr., OAL (Vena, A.L.J.) (9 pp.)� Based on the testimony received, the ALJ concludes that the welts found on disabled patient could only have been inflicted during the period of time when the patient was alone and unclothed in the tub room with the appellant/human services assistant; further, the ALJ finds, from the location of the welts, that they could not have been self-inflicted.� Appellant’s removal is affirmed.� [Initial decision dated Nov. 4, 1998.] 01-CSV-9382� Britt v. Newark Fire Dept., OAL (Weiss, A.L.J.)� (7 pp. — includes ALJ’s initial decision and final decision by Howard, Presiding Bd. Member)� Appellant’s removal as a fire alarm operator was appropriate since: (1) automatic forfeiture of public employment is required by N.J.S.A. where a public employee is convicted of a third degree or higher offense (here, unlawful possession of a weapon); (2) appellant committed fraud when he purchased a handgun without disclosing his prior conviction; and (3) appellant failed to notify his superiors of these events as required.� [Initial decision dated Sept. 16, 1998; Final decision dated Nov. 9, 1998.] 01-CSV-9383� Morales v. Borough of Lakehurst, OAL (Tylutki, A.L.J.)� (9 pp. — includes ALJ’s initial decision and final decision by Mintz, Commr.)� Appellant — a public works repairer for the DPW — was properly removed because, as a result of his automobile- accident injuries, he could not perform the job responsibilities of his position; although the respondent has the discretion to offer light duties, the ALJ finds that appellant could not, by his own admission, perform even these.� The ALJ accepts the respondent’s testimony that it used up all of appellant’s accrued sick and vacation time to provide him with salary payments after his motor vehicle accident.� [Initial decision dated Nov. 9, 1998; Final decision dated Jan. 14, 1999.] 01-CSV-9384� Jones v. City of Elizabeth Police Dept., OAL (Gaeta, Jr., A.L.J.)� (8 pp. — includes ALJ’s initial decision and final decision by Mintz, Commr.)� The Board agrees with the ALJ that police sergeant’s actions — in assuming an off-duty assignment to fill in for an indisposed officer, but then accepting payment therefor — were antithetical to his obligations as a role model for subordinate officers, even though he returned the money the same day; while the Board affirms the action of the appointing authority in suspending the sergeant for sixty days, it finds that demotion was not justified, and orders his reinstatement to sergeant with back pay, benefits and seniority.� [Initial decision dated Nov. 13, 1998; Final decision dated Jan. 11, 1999.] 01-CSV-9385� Jimenez v. Cumberland Cy., OAL (Metzger, A.L.J.)� (11 pp. — includes ALJ’s initial decision and final decision by Howard, Presiding Bd. Member)� Institutional attendant was properly removed from her position on charges of chronic or excessive absenteeism or lateness, and being absent for five or more consecutive business days without the approval of her supervisor.� [Initial decision dated Sept. 14, 1998; Final decision dated Nov. 9, 1998.]

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