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STATE COURT CASES ARBITRATION� –� P.I.P. 03-3-1394� Rodriguez v. General Accident Ins. Co., Law Div. (Reisner, J.S.C.) (3 pp.)� Even though the plaintiff filed a Superior Court case which has been pending for two years, the court now grants his request to submit to binding arbitration, finding that nothing in the arbitration provision of N.J.S.A. 39:6A-5(h) suggests that a plaintiff cannot withdraw a PIP action initially filed in the Superior Court in favor of binding arbitration of the PIP claim, despite the initial election to proceed in Superior Court, or the age of the case.� [Decided May 5, 1998; Approved for publication Sept. 28, 1999.] CONSTITUTIONAL LAW� –� N.J.L.A.D. 10-2-1395� , App. Div. (Skillman, J.A.D.) (15 pp.)� Defendant’s Discipleship Program — a residential program which seeks to free participants from addictions and addictive behavior primarily by instruction in the Christian religion — is not covered by the basic definition of a “place of public accommodation” under the LAD because it is a religious program and also because it is an “educational facility operated or maintained by a bona fide religious or sectarian institution.”� Therefore, the defendant did not violate the LAD when its refused plaintiff, a Muslim, admission into the program.� [Approved for publication Sept. 29, 1999.] INSURANCE� –� HOMEOWNERS� –� INTENTIONAL INJURY 23-2-1396� Allstate Ins. Co. v. Cohen, et al., App. Div. (per curiam) (4 pp.)� Although defendant contends that the insured’s 16-year old daughter’s action — in throwing a glass at her and injuring her head in an altercation at a diner — was impulsive or a “reaction” in their fight over defendant’s dating someone other than the thrower’s brother, the trial judge properly held that the act could be held as nothing other than intentional, and no reasonable factfinder could conclude otherwise; no coverage is provided by the insured’s homeowner’s policy for the injuries resulting from the intentional act. LABOR AND EMPLOYMENT� –� UNEMPLOYMENT COMPENSATION 25-2-1397� Cioffi v. Bd. of Review, App. Div. (per curiam) (6 pp.)� Appellant was justifiably held liable to refund over $12,000 in unemployment benefits, based on the Board’s conclusion that appellant had misrepresented and withheld material facts when he failed to reveal that he had a debt interest greater than five percent in a corporation (Dunkin’ Donuts franchise) upon which his unemployment claims were based. CRIMINAL LAW AND PROCEDURE� –� SEARCH & SEIZURE 14-2-1398� State v. Scott, App. Div. (per curiam) (8 pp.)� Discussing the issue of whether an officer should issue a summons instead of arresting a driver for motor vehicle and traffic violations, especially when there is no immediate threat to public safety, the panel finds that the judge here properly suppressed evidence of cocaine found in search of defendant’s vehicle, finding that defendant was not arrested for his violations of traffic violations before the officer found the cocaine; and that, nevertheless, even if he had been arrested, the search could not have been justified as incident to a lawful arrest for a traffic violation.� The panel also rejects the State’s contentions on appeal that: (1) the evidence would have been discovered when the vehicle was impounded and inventoried; and (2) the search was consented to. 14-2-1399� State v. Holloway, App. Div. (per curiam) (8 pp.)� The panel reverses order granting post- conviction relief, affording defendant a new trial on the ground that his trial counsel provided ineffective representation for not bring a motion to suppress that the motion judge believed would have been successful, even if the State’s version of the automobile stop and search were believed.� The panel holds that the judge erred in concluding that a motion to suppress would have been granted even if the state trooper’s testimony had been found credible; and, furthermore, counsel’s strategic decision not to file a motion to suppress and put her client on the stand did not rise to the level of ineffective assistance of counsel. FEDERAL COURT CASES INSURANCE� –� DISABILITY 23-7-1400� Brenner v. Provident Companies, Inc., et al., U.S. Dist. Ct. (Walls, U.S.D.J.) (13 pp.) (1) Plaintiff’s motion for summary judgment as to the standard of review in this case is granted.� The requirement in defendant’s disability plan that the insured submit “proof of loss” or “proper written proof” is merely procedural and does not grant the plan administrator discretion to interpret the language of the plan or to evaluate the substance of the insured’s claim; and, since the court finds that there is no express or implied language that establishes the discretionary power of the plan administrator to determine plaintiff’s continuing eligibility for benefits due to total disability, a de novo standard of review will be applied to the plan administrator’s decision denying benefits.� (2) Upon review of the record, the court finds that it has sufficient information to conduct the de novo review, but denies summary judgment to the defendant due to the presence of a genuine and material factual dispute between the parties on the issue of plaintiff’s medical condition.� [Filed Sept. 17, 1999.] LABOR AND EMPLOYMENT� –� PREEMPTION 25-7-1401� Gul v. Pamrapo Savings Bank, et al., U.S. Dist. Ct. (Cooper, U.S.D.J.) (7 pp.)��In this case in which plaintiff claims that she was constructively discharged because of her efforts to unionize tellers at defendant bank, the court examines the issue of whether a federal district court has removal jurisdiction to determine whether a plaintiff’s state law claims are preempted under Garmon, and joins the growing number of decisions that have found that district courts lack jurisdiction to address the issue, and that state law claims “arguably subject” to sec. 8 of the NLRA may not therefore be removed to federal court.� [Filed Sept. 22, 1999.][For publication.]“ CRIMINAL LAW AND PROCEDURE� –� TAX EVASION 14-7-1402� Kennedy v. U.S.A., U.S. Dist. Ct. (Debevoise, U.S.S.D.J.) (10 pp.)� The court finds that petitioner’s request to vacate, set aside or correct the sentence imposed upon him after his tax evasion conviction raises factual issues which cannot be decided on the papers, and orders that an evidentiary hearing be held to explore some of petitioner’s contentions that he was denied effective assistance of counsel by reason of multiple failures of counsel during the preparation of trial of the case and by reason of the fact that his counsel had a conflict of interest.� [Filed Sept. 23, 1999.] ADMINISTRATIVE LAW DECISIONS CIVIL RIGHTS 01-CRT-1403� Shannon v. Academy Bus Lines, Inc., OAL (Miller, A.L.J.) (4 pp.)� The ALJ finds that respondent discriminated against petitioner because of her sex and terminated her in an act of reprisal; petitioner is awarded over $10,000 plus interest, plus $5,000 in compensatory damages for humiliation, anxiety and distress.� The Division is also entitled to the maximum statutory penalty of $2,000.� [Initial decision dated Aug. 4, 1999.] CODE ENFORCEMENT� –� NEW HOME WARRANTY 01-CAF-1404� Donovan, et al. v. Cinciarrelli, et ux., et al., OAL (Scott, A.L.J.) (7 pp.)� The court concludes that builders have failed to offer sufficient evidence that the 14 inches of water in the basement of respondents’ new home was caused solely by a rising water table during the late winter and early spring of 1998; the ALJ therefore affirms the Bureau’s decision requiring the builders to repair the basement, and orders the Bureau to determine what expenses incurred by the homeowners were necessary to repair the condition, and orders the builders to reimburse the homeowners therefor.� [Initial decision dated Aug. 17, 1999.] CONSUMER PROTECTION� –� LEMON LAW 01-CMA-1405� Harris v. Hyundai Motor America, OAL (Ravin, A.L.J.) (14 pp.)� The ALJ finds that any defect in the brakes of petitioner’s 1997 Hyundai Sonata was rectified by the repairs made by the respondent; further, the ALJ notes that, even if a defect had been found to exist, it was not a nonconformity substantially impairing the use, value or safety of the vehicle, since the brakes never actually failed to perform, and petitioner and her daughter continued to use the car unabated.� [Initial decision dated Jul. 30, 1999.] PUBLIC EMPLOYEES� –� DISCIPLINE 01-CSV-1406� Raymond v. Law and Public Safety-Juvenile Justice Commission, OAL (Metzger, A.L.J.) (7 pp.)� The ALJ reverses respondent’s decision to terminate petitioner — a senior corrections officer serving as a drill instructor at a juvenile corrections “boot camp” — who pushed a cadet inmate in an altercation during line-up, causing him to fall into a window, sustaining an injury requiring nineteen stitches.� While the respondent has a “hands-off” policy toward the inmates, and the better procedure during the altercation with the agitated inmate would have been to call in another drill instructor to aid in disciplining the inmate, the ALJ finds, inter alia, that the petitioner did not intend the harm, and that the push was minimal.� Petitioner is, instead, suspended for 90 days.� [Initial decision dated Jul. 26, 1999.] SPECIAL EDUCATION 01-EDS-1407� D.W., etc. v. Newark Bd. of Education, OAL (Ravin, A.L.J.) (11 pp.)� Although the judge agrees with the parent that the respondent failed to properly implement the 11-year old student’s IEP in the 1998-1999 school year, he finds that respondent’s failure was not occasioned by unwillingness, but because the district was in a state of transition; although the parent may have lost confidence in the respondent, the remedy is not to put the child in an out-of-district placement as requested by the parent, as such a placement would constitute a second violation of the IDEA — a violation of the least restrictive environment requirement.� The judge orders the respondent to immediately comply with the IEP in the child’s regular school placement.� [Final decision dated Aug. 13, 1999.]

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