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STATE COURT CASES CONSTRUCTION 43-2-1937� Connectiv Svcs., etc. v. Smith, et al., App. Div. (per curiam) (2 pp.)� In HVAC subcontractor/plaintiff’s suit for nonpayment against homeowner and general contractor, the court affirms trial judge’s order entering judgment for the plaintiff against the general contractor and judgment in favor of homeowner against the general contractor; judge also properly dismissed homeowner’s counterclaim against the plaintiff, which had alleged that the HVAC system was faulty and included a count for Consumer Fraud. CONTRACTS� –� FRANCHISES 11-2-1938� Sattely v. Cregg, App. Div. (per curiam) (13 pp.)� In case dealing with a franchise assignment and the operating documents pertinent thereto, involving interpretation of a clause which conditioned forgiveness of defendant’s obligation, in the event of termination of the operating documents, on defendant not “being otherwise in default,” the panel finds that the premise of the judge’s ruling in favor of the defendant was in error, and reverses. FAMILY LAW 20-2-1939� Stanson v. Stanson, App. Div. (per curiam) (16 pp.)� (1) The trial judge correctly and thoroughly considered and discussed the weight and merit of the statutory factors for both alimony and equitable distribution, and did not ignore the interrelationship of the support ordered and the equitable distribution made.� (2) Despite defendant’s contention to the contrary, the findings of the trial judge do not support consideration of rehabilitative alimony as an alternative to permanent alimony. LABOR AND EMPLOYMENT� –� UNEMPLOYMENT COMPENSATION 25-2-1940� Carney v. Bd. of Review, et al., App. Div. (per curiam) (2 pp.)� The Board justifiably affirmed the Appeals Tribunal’s conclusion that plaintiff lacked credibility and rejected his claims that he was a recovering alcoholic and substance abuser who felt he was forced to leave his job because his supervisor was smoking marijuana on the job and he felt his sanity and sobriety were threatened; plaintiff’s leaving the employment was without good cause attributable to the work, and he was properly denied unemployment benefits. NEGLIGENCE� –� CHRONIC OBSTRUCTIVE PULMONARY DISEASE 31-2-1941� Baumann, etc. v. N.J. Steel Corp., etc., App. Div. (per curiam) (7 pp.)� The court reverses plaintiff’s jury verdict of almost $300,000, since: (1) the medical testimony established that decedent’s chronic obstructive pulmonary disease was the result of his years of smoking, not his exposure to the air at defendant’s plant; and (2) the judge’s decision to give an adverse inference charge in the particular context of this case was prejudicially erroneous and entitles defendant to a new trial. NEGLIGENCE� –� LANDLORD/TENANT� –� WORKERS’ COMPENSATION 31-2-1942� Lipka, et ux. v. Murphy, Jr., etc. v. Shore Tile and Marble Co. v. Tenbarco, Inc., App. Div. (per curiam) (12 pp.)� Panel affirms judge’s apportionment of jury verdict in favor of plaintiff, 65% against marble floor installer and 35% against defendant property owner/landlord; the judge justifiably found that the immunity of the workers’ compensation wall that shields a corporation from tort liability from its employees does not extend to the defendant — owner/sole shareholder of the corporation in his individual capacity as building owner and landlord. PHYSICIAN/PATIENT 29-2-1943� Colucci v. Oppenheim, M.D., et al., App. Div. (Steinberg, J.A.D.) (18 pp.)� The trial judge erred in sustaining defendant’s objection to plaintiff’s counsel’s comments, since those comments were based upon facts in evidence, or, at least, suggested inferences that could reasonably be drawn from the evidence introduced; counsel had the absolute right to comment upon the fact that defendant referred to other x-rays, and showed other x-rays on a shadow box, yet neglected to mention another x-ray which showed lucency in plaintiff’s lung.� The remarks of the judge in sustaining the objection had the clear capacity to prejudice plaintiff in the eyes of the jury, and may have deprived him of a fair trial.� [Approved for publication Nov. 22, 1999.] PHYSICIAN/PATIENT 29-2-1944� Kelly, etc. v. Bacha, et al., App. Div. (per curiam) (7 pp.)� The court affirms no cause verdict in favor of doctors in this case alleging medical malpractice in the death of the plaintiffs’ son from a form of leukemia.� Although plaintiff’s expert stated that earlier diagnosis and chemotherapy might have prevented a hospitalization for respiratory distress, he concluded that the three-day delay did not affect the subsequent treatment or care of the child and did not cause his death two years later; the child’s cancer developed so quickly and was so aggressive that the chest tumor doubled every twenty-four hours, which explained why no symptoms were readily seen just days earlier. REAL ESTATE� –� COMMISSIONS� –� STATUTE OF FRAUDS 34-2-1945� Thomas Rich Realty Corp. v. Kraft, et al., App. Div. (per curiam) (5 pp.)� Although judge stated on the Friday before the Monday trial that “the trial would be over” if he found that there was no oral agreement for a broker’s commission, he did not abuse his discretion by allowing the issue� of certain writings to be brought up in support of defendant’s claim for commission under N.J.S.A. 25:1-16(b); furthermore, plaintiff’s counsel never asked for an adjournment or indicated that he needed more time to prepare to meet this claim. TORTS� –� CLAIMS ACT� –� LATE NOTICE 36-2-1946� Jackson v. State of N.J., App. Div. (per curiam) (4 pp.)� Plaintiff failed to demonstrate the extraordinary circumstances required by the 1994 amendment to the Tort Claims Act to permit the late notice of his claim; although he was incarcerated when he was injured on an exercise machine and thereafter, he had knowledge of his injuries and there is no evidence to show that his confinement interfered with his ability to send notices or letters. CRIMINAL LAW AND PROCEDURE� –� SELF DEFENSE 14-2-1947� State v. Green, App. Div. (per curiam) (8 pp.)� In giving the requested charge on self- defense, the judge deviated from the model jury charge and, in the process, erred because he omitted that part which instructs the jury that the State has the burden to prove beyond a reasonable doubt that the defense of self-defense is untrue. FEDERAL COURT CASES CONTRACTS� –� CONFIDENTIALITY� –� PROTECTIVE ORDERS 11-7-1948� Biovail Corp., Intl. v. Hoechst Aktiengesellschaft, et al., U.S. Dist. Ct. (Barry, U.S.D.J.) (20 pp.)� In this case in which plaintiff contends that defendant interfered with the regulatory approval process of a heart medication, the court affirms the magistrate judge’s order which requires each party to disclose the identities of nontestifying experts and consultants prior to their review of certain confidential documents; even under the heightened “exceptional circumstances” standard, the result obtains given the highly proprietary nature of the information which is at stake in this case.� [Filed Nov. 12, 1999.] EDUCATION� –� BREACH OF FIDUCIARY DUTY 16-7-1949� D.A.G., et ux., etc. v. Educational Partnership for Instructing Children, Inc.,� et al., U.S. Dist. Ct. (Walls, U.S.D.J.) (7 pp.)� (1) Since it is clear that plaintiff, as President of defendant EPIC and its Board of Directors, did not stand at arms’ length bargaining distance from EPIC and was not involved in an ordinary commercial business relationship with the school vis a vis his own child — a student at EPIC; plaintiff’s motion to dismiss the breach of fiduciary duty and breach of contract counterclaims is denied.� (2) Since charitable immunity is an affirmative defense, and not a cause of action, the court dismisses that count of the counterclaim which alleges that plaintiff participated in the incorporation of the school and knowingly started this lawsuit with the knowledge that EPIC was charitably immune.� (3) The court is unable to perceive any statutory or common law cause of action in the counterclaim which alleges that plaintiff used his position to secure services for his child that no other child was entitled to receive.� [Filed Nov. 4, 1999.] INTELLECTUAL PROPERTY� –� EVIDENCE� –� SEVERANCE 53-7-1950� Boehringer Ingelheim Vetmedica, Inc., et al. v. Schering-Plough Corp., et al., U.S. Dist. Ct. (Ackerman, U.S.D.J.) (12 pp.)� (1) Because the court is convinced that defendant has a Seventh Amendment right to a jury trial on the issue of materiality, in the court’s discretion under Rule 42(b) to avoid confusion and prejudice and to separate the equitable and legal claims in this case, the court will grant plaintiff’s motion to sever and reserve for itself the factual inquiries and ultimate determination of defendant’s inequitable conduct defense.� (2) Based upon the court’s recent opinion in the related ’563 patent case, as well as defendant’s concession that evidence that it was merely obvious to include MA-104 cells in an array would be insufficient to sustain its burden under 35 U.S.C. 103, the court grants plaintiff’s motion to exclude evidence that it was merely “obvious to try” MA-104 cells; however, the court will not strike defendant’s defense of obviousness, but will hold it to its proffer that it will, in fact, introduce evidence that those or ordinary skill in the art in 1991 would have had a reasonable expectation of success on the MA-104 cells and not merely the test array in general.� [Filed Nov. 9, 1999.] INTELLECTUAL PROPERTY� –� TRADE NAME INFRINGEMENT 53-7-1951� , U.S. Dist. Ct. (Irenas, U.S.D.J.) (35 pp.)� In a case between competing tour companies over the use of the name “Lambert,” originally used by defendants, then sold to plaintiff and admittedly distinctive and protectable, but briefly used again by defendants, the court grants summary judgment to defendants in part, but denies it in part.� Inter alia, the court finds: (1) the similarity of the names is likely to cause confusion among potential customers, and plaintiff has made out a prima facie case of trade name infringement; (2) there is substantial evidence from which a trier of fact could conclude that defendants profited from their use of plaintiff’s trade name, even if used only for a brief time, and that defendants acted in bad faith; (3) the draft copy of plaintiff’s brochure was not a protected trade secret; (4) a jury could conclude that defendants misappropriated plaintiff’s customer lists and cost buildups; and (5) plaintiffs have made out a case for unfair competition, both for “palming off” and “pirating”.� The court does grant summary judgment to the graphic designer of the defendants’ brochure, finding that he may have acted in a foolish or inappropriate manner, but lacked the requisite intent or malice to have interfered with plaintiff’s business.� [Filed Nov. 10, 1999.]

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