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STATE COURT CASES CONSTRUCTION� –� WORKSITE ACCIDENTS 43-2-1754� Didino, et al. v. Hechinger Co. of N.J., et al., App. Div. (per curiam) (8 pp.)� The panel affirms jury verdict of no cause of action in personal injury action arising out of a construction site accident, where planking securing a plastic enclosure around the worksite fell, striking plaintiff, an employee of the masonry subcontractor.� Inter alia, the panel finds: (1) there was no plain error in the judge’s use of the standard jury charge on proximate cause, and (2) the summation of the general contractor’s attorney did not “transcend the bounds of fair argument.” CONTRACTS 11-2-1755� Bramhall, et al. v. Collins, et ux., App. Div. (per curiam) (4 pp.)� In an appeal involving a family dispute concerning the terms of an alleged oral agreement to develop a residential lot in Morris County, the appellate court affirms the trial judge’s determinations that: (1) the contract prepared by the plaintiffs’ attorney represented a meeting of the minds of the parties; (2) the substantial performance that occurred, together with the detrimental change in position of both parties, took the unexecuted contract out of the Statute of Frauds; and (3) plaintiffs had breached the contract in the amount calculated by the court. CORPORATIONS� –� SHAREHOLDER LIABILITY FOR DEBTS 12-2-1756� Cavanaugh, et al. v. Carrino, et al., App. Div. (per curiam) (7 pp.)� The panel affirms the court’s calculations and rulings in this dispute centering on the liability of the withdrawing shareholders for accounts payable incurred when they were in control of the corporation. FAMILY LAW� –� CHILD SUPPORT� –� JURISDICTION 20-2-1757� Chappell-Seijas v. Seijas, App. Div. (per curiam) (4 pp.)� Where Florida-resident defendant, against whom default had been entered in the N.J. divorce, appeared in N.J. courts on at least five occasions to deal with support and visitation issues, he waived any possible objection to personal jurisdiction.� However, the court remands for a plenary hearing as to defendant’s ability to pay child support and for possible retroactive adjustment to when he first contested jurisdiction, and later appealed the denial of his modification request. INSURANCE� –� CARGO 23-2-1758� Inventory Management Consultant Group, Ltd., etc. v. Chubb Group of Ins. Cos., et al., App. Div. (per curiam) (8 pp.)� In this action seeking coverage for a purported loss of a shipment of goods under an Open Ocean Cargo policy issued by defendant insurance carrier, the panel affirms summary judgment entered in favor of the insurer, since plaintiff failed to present competent evidence to establish that the goods were “in transit” as required under the policy; the judge did not err in barring admission of a copy of the bill of lading, since it was not authenticated and constituted inadmissible hearsay not subject to any exception, including the business records exception. INSURANCE� –� VERBAL THRESHOLD 23-2-1759� Powers, et ux. v. Palmas Pastry and Caf�, et al., App. Div. (per curiam) (4 pp.)� Summary judgment for the defense was appropriate in this case where the judge found that the presence of spasm seventeen months after the accident, by itself, was not objective evidence of a serious injury.� The judge also found that there was no serious impact on plaintiff’s life, where — although he had to curtail his weight lifting and golf activities — he was able to perform the duties of his job without any difficulty. 23-2-1760� Derock, et ux. v. Giampaola, etc., App. Div. (per curiam) (3 pp.)� In case where plaintiff had similar complaints after three prior accidents, and was being treated for those symptoms up until the subject accident, the court properly dismissed his complaint for failure to make the comparative analysis, supported by pre- and post-trauma objective medical records, required by Polk v. Daconceicao. LABOR AND EMPLOYMENT� –� C.E.P.A. 25-2-1761� De Lisa v. Cy. of Bergen, et al. v. State of N.J., App. Div. (Stern, P.J.A.D.) (11 pp.)� Although the trial judge, in dismissing plaintiff’s CEPA complaint, relied on the holding of the now- reversed Higgins v. Pascack Valley — which had held that CEPA did not provide a remedy for retaliation based on complaints relating to the conduct of a co-employee, as opposed to an employer — the appellate panel nevertheless affirms the dismissal of plaintiff’s complaint; the panel does not read the Supreme Court in Higgins to have held that in a case premised exclusively under subsection (b), the action can be based upon retaliation for providing information merely about co-employee conduct that does not involve misconduct by the employer.� [Approved for publication Nov. 5, 1999.] LAND USE 26-2-1762� Estate of Kuchin, et al. v. Twp. Council of…Franklin, App. Div. (per curiam) (14 pp.) Trial court properly concluded that plaintiffs had failed to overcome the presumptive validity of municipal zoning ordinance amendment which rezoned their property from a higher to a lower residential density. PARENT/CHILD� –� TERMINATION� OF RIGHTS 28-2-1763� N.J. D.Y.F.S. v. P.P., et al., App. Div. (per curiam) (9 pp.)� The court properly terminated mother’s parental rights to the three “special needs” children which form the subject of this case, finding, inter alia,� that her use of drugs and alcohol during her pregnancies had caused her children to be born prematurely, and her continued use of drugs and alcohol — and inability to cooperate and make a true effort to overcome her addictions through DYFS’s attempted efforts to get her counselling — caused immediate harm to the children and demonstrated an unwillingness or inability to alter the circumstances which inhibited her ability to nurture or properly supervise the growth and development of the children. WORKERS’ COMPENSATION 39-2-1764� Jasiczek v. Jersey City Bd. of Education, App. Div. (per curiam) (7 pp.)� In this case where petitioner was exposed to “deleterious pulmonary irritants” — such as dust, dirt, sawdust, fumes and asbestos — in his employment as a carpenter’s helper — the evidence supports the compensation judge’s award to petitioner of 15% partial total, pulmonary, for residuals of chronic bronchitis, chronic obstructive pulmonary disease, less a 7 1/2% credit for smoking. CRIMINAL LAW AND PROCEDURE� –� PAROLE 14-2-1765� State v. Newman, App. Div. (Muir, Jr., P.J.A.D.) (8 pp.)� (1) The No-Early Release Act applies to defendant’s conviction for reckless manslaughter.� In this case, the Act’s mandatory 85% minimum parole ineligibility provision does not violate the proscriptions against cruel and unusual punishment contained� in the federal and state constitutions.� [Approved for publication Nov. 5, 1999.] FEDERAL COURT CASES CIVIL RIGHTS� –� CORRECTIONS 46-7-1766� Martinez v. Hudson Cy. Jail, et al. v. Correctional Health Svcs., Inc., U.S. Dist. Ct. (Wolin, U.S.D.J.) (10 pp.)� On plaintiff’s complaint alleging inadequate medical treatment after he fell while incarcerated, the court grants summary judgment: (1) to defendant Hudson County Jail, since there is no respondeat superior liability under sec. 1983, and plaintiff fails to allege the existence of any official HCCC policy or custom to deny him treatment; and (2) to third-party defendant Correctional Health Services, Inc., since the third-party complaint for contribution and indemnification against CHS is mooted by the grant of summary judgment to HCCC.� The court� notes its rejection of CHS’s allegation that plaintiff was required to file an Affidavit of Merit in this case.� [Filed Oct. 22, 1999.] NEGLIGENCE� –� FEDERAL CORRECTIONS 31-7-1767� Esposito v. U.S.A., U.S. Dist. Ct. (Bassler, U.S.D.J.) (7 pp.)� The court grants defendant’s motion to dismiss plaintiff’s complaint brought under the Federal Tort Claims Act and alleging that defendant committed “wrongful, reckless, and unconstitutional acts” when it airlifted plaintiff to three different federal correctional institutions and to medical facilities in twelve different states over a one-year period.� Inter alia, (1) while plaintiff cites a federal prison guideline which discourages the airlifting of prisoners with cardiac conditions, he errs in assuming that this guideline is an immutable rule; and (2) at each institution, medical staff reviewed plaintiff’s records and determined that he was stable enough to be airlifted.� [Filed Oct. 29, 1999.] ADMINISTRATIVE LAW DECISIONS CONSUMER PROTECTION� –� LEMON LAW 01-CMA-1768� Cicero, et ux. v. Ford Motor Co., OAL (Dwyer, A.L.J.)� (9 pp.)� Lemon Law relief is denied to petitioners, who have failed to prove that the intermittent squeaking of the brakes is a substantial nonconformity in their leased 1999 Lincoln Town Car, which has never broken down or failed to stop, despite petitioners’ driving the car 1,000 miles or more per month.� [Initial decision dated Oct. 6, 1999.] PUBLIC EMPLOYEES� –� DISCIPLINE 01-CSV-1769� Muhammad v. Ancora Psychiatric Hospital, OAL (Lavery, A.L.J.)� (12 pp. — includes ALJ’s initial decision and final decision by Mintz, Commr.)� Removal of appellant — a human services technician — was justified for his sleeping on duty while assigned the care of a seriously- disturbed psychiatric patient given to self-injury, and for falsifying records in the hopes of covering up his misdeed.� [Initial decision dated Aug. 26, 1999; Final decision dated Oct. 7, 1999.] WORKERS’ COMPENSATION 01-WCC-1770� Williams v. Crestbury Apartments, etc., WCC (Lashman, J.W.C.) (7 pp.)� Where petitioner — a social services coordinator for HUD-subsidized apartments — was injured while driving to the apartment complex on a holiday weekend to ensure that the children boarded the bus for a planned outing to the Ice Capades, the court holds that the injury occurred while en route to her job, and thus was not compensable under the Workers’ Compensation Act.� [Decision dated Jul. 23, 1999.]

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