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STATE COURT CASES CIVIL PROCEDURE� –� DISMISSALS WITH PREJUDICE 07-2-0908� Battaglia v. Bergen Cy. Utilities Auth., App. Div. (per curiam) (4 pp.)� Judge did not abuse his discretion in finding that “extraordinary circumstances” were not shown to justify the post- ninety day delay in plaintiff’s application to restore, or to prevent dismissal with prejudice after plaintiff still had failed to answer interrogatories; plaintiff’s argument that his new counsel had difficulty both in obtaining the file and substitution from prior counsel and in obtaining cooperation from defense counsel is without merit. CONSTITUTIONAL LAW� –� MALL REGULATIONS� –� FREE SPEECH 10-2-0909� , App. Div. (Petrella, P.J.A.D.) (64 pp.)� In a case challenging the constitutionality of defendant’s regulations regarding persons or groups who wish to distribute leaflets at defendant’s mall, the court rejects the Chancery judge’s “narrowly tailored” test, and articulates a standard for reviewing shopping centers’ regulations; the court finds the regulations were reasonable in this case, and reverses the decision of the Chancery Court judge to the contrary.� [Approved for publication Aug. 3, 1999.] FAMILY LAW� –� CHILD SUPPORT 20-2-0910� Somerset Cy. Bd. of Social Svcs., etc. v. Bank, etc., App. Div. (per curiam) (3 pp.)� In light of defendant’s failure to timely challenge or seek vacation of prior default orders regarding child support in this paternity case, and in light of plaintiff’s good faith basis to have believed defendant to be the father of her child, the panel sees no basis for the court’s later order requiring plaintiff to repay either the funds collected under those court orders or those previously paid voluntarily, notwithstanding that defendant may have subsequently been found not to have been the father of the child by genetic testing. LAND USE� –� CELLULAR TOWERS 26-2-0911� N.Y. SMSA Ltd. Ptshp., etc. v. Bd. of Adjustment of…Bernards, etc., App. Div. (Lesemann, J.S.C., t/a) (19 pp.)� The panel concludes that the local Board of Adjustment acted reasonably and consistent with the principles set out in Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment; that the Board’s decision to deny plaintiff a variance for its cellular tower was based on substantial evidence in the record; and that the Law Division should not have overturned that decision.� [Approved for publication Aug. 3, 1999.] 26-2-0912� N.Y. SMSA Ltd. Ptshp., v. Bd. of Adjustment of…Middletown, App. Div. (P.G. Levy, J.A.D.) (15 pp.)� The panel reverses the trial court’s judgment setting aside municipal board’s denial to plaintiff of a variance for the construction of a cellular transmission tower or monopole in a residential zone, noting that this case differs from other tower cases in that this municipality adopted a comprehensive ordinance specifically directed at communications towers.� The board had denied the variance largely because plaintiff� never satisfactorily explained why it could not mount its antennae on one of several existing structures in the area; and the panel holds that the board reasonably exercised its discretion in denying the variance.� Further, the panel holds that the denial of the variance does not violate the federal Telecommunications Act of 1996.� [Approved for publication Aug. 3, 1999.] PARENT/CHILD� –� TERMINATION OF PARENTAL RIGHTS 28-1-0913� , Supreme Ct. (Handler, J.) (39 pp. — including concurring opinion by O’Hern, J.)� It is in the best interests of the child to terminate parental rights of her biological mother when there is clear and convincing evidence that: (1) the child is born addicted to drugs and her mother cannot care for her, being herself so addicted; (2) her mother continues to be unable to provide a safe and stable home for the child and the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of the bonds with her foster family; (3) DYFS used diligent efforts to reunite child and mother; and (4) the child’s bond with her foster parents is stronger than that with her biological mother.� [Companion case to 28-1-0914 below.] 28-1-0914� , Minors, Supreme Ct. (Handler, J.) (43 pp. — including concurring opinion by O’Hern, J.)� In another case involving the termination of parental rights under N.J.S.A. 30:4C-15.1(a), and also involving the alternative standard of abandonment as a basis for terminating parental rights, the court holds that a parent’s persistent failure to perform any parenting functions and to provide care, nurture, or support for an extended period harms the child.� When DYFS attempts to reunite a family, DYFS must make consistent efforts to maintain and support the parent-child bond and may focus on its efforts on the parent who has been the child’s primary caregiver, but cannot exclude or ignore the other parent.� [Companion case to 28-1-0913 above.] 28-1-0915� , Supreme Ct. (Pollock, J.) (31 pp. — including concurring opinion by O’Hern, J.)� Following the 1998 amendment to N.J.S.A. 9:3-46(a), a court deciding the contested adoption of a child who has lived with one biological parent should use the “best interests of the child” standard and determine whether the biological parent objecting to the adoption has affirmatively taken on the duties of a parent as described in the statute.� In this case where children’s step-father seeks to adopt them over the objection of the natural father, the court holds that the Appellate Division’s focus on whether continuation of the natural father’s parental relationship would place his sons “in imminent danger of serious harm” was misplaced; instead, on remand for reconsideration under the statute as amended in 1998, the Family part should decide whether, over the course of his sons’ lives, the natural father has affirmatively assumed the specified duties of a parent. FEDERAL COURT CASES ATTORNEY/CLIENT� –� REAL ESTATE� –� DUTY TO NON-CLIENTS 04-7-0916� , U.S. Dist. Ct. (Orlofsky, U.S.D.J.) (109 pp.)� In this case involving a failed savings and loan’s claims for breach of contract, negligence and legal malpractice, arising out of a commercial real estate transaction where the defendant, Rocco M. Nigro, Esq., acted as counsel for the buyer and the seller of the property, rendered an opinion letter for the benefit of the mortgage company, and owned the title agency which negotiated the title insurance coverage and acted as closing agent on behalf of the underwriting title insurance company, the court holds, inter alia, that: (1) Mr. Nigro and his firm owed the plaintiff’s predecessor a duty of care in preparing his opinion letter, and breached that duty, which proximately caused damage to the plaintiff; therefore, plaintiff is entitled to partial summary judgment on its claim for malpractice.� (2) Plaintiff’s motion for partial summary judgment is also granted on the issue of liability on its claim for negligent title search.� (3) These judgments are subject to resolution of certain disputed factual issues by a jury as to whether the claims, as well as plaintiff’s claim for negligent hiring, are barred by the statute of limitations.� (4) Given the multiple representations of Mr. Nigro in this transaction, the judge concludes that he violated Rule 1.7 of the Rules of Professional Conduct, and refers the matter to the Ethics Committee.� [Filed Jul. 29, 1999.][For publication.] CIVIL RIGHTS� –� DISABILITY DISCRIMINATION 46-7-0917� , U.S. Dist. Ct. (Irenas, U.S.D.J.) (11 pp.)� In this case brought by wheelchair-bound plaintiff, alleging that defendant’s failure to provide wheelchair access to certain games of chance violates the Americans with Disabilities Act, the court denies defendant’s motion to dismiss for lack of subject matter jurisdiction, agreeing with those courts which have found that a party is not required to exhaust state administrative remedies before filing a civil suit under Title III of the ADA.� [Filed Jul. 29, 1999.][For publication.] CONTRACTS� –� AFFIRMATIVE DEFENSES 11-7-0918� Travelodge Hotels, Inc. v. Asha Investments, Inc., U.S. Dist. Ct. (Cavanaugh, U.S.M.J.) (6 pp.)� In matter where plaintiff seeks damages and fees stemming from the alleged breach of a licensing agreement between the parties, and in which plaintiff now moves to dismiss two affirmative defenses which defendant raised for the first time in its final pretrial statement and trial brief, the court: (1) denies plaintiff’s motion to dismiss the affirmative defense that the liquidated damages clause is unenforceable as a penalty, since both parties have been on notice of the issue from the inception of the suit and have explored it through discovery; but (2) grants the plaintiff’s motion with respect to the affirmative defense that the license agreement was a contract of adhesion, since there is no explanation as to why this defense had not been raised before, and allowing its assertion now would result in unfair prejudice to the plaintiff.� [Filed Jul. 14, 1999.] � INTELLECTUAL PROPERTY 53-7-0919� Bedmate Intl. Corp., etc. v. Med-Pat, Inc., et al., U.S. Dist. Ct. (Debevoise, U.S.S.D.J.) (45 pp.)� In a case involving a patent for a one-piece telephone and clip — for attaching a phone onto� the rail of a hospital bed — the court finds that: (1) the defendant’s model 1 literally infringes certain claims of plaintiff’s patent; and (2) plaintiff is not barred by prosecution history estoppel or by prior art estoppel from claiming that defendant’s model 2, by application of the doctrine of equivalents, infringes certain claims of plaintiff’s patent, which it does.� [Filed Jul. 14, 1999.] JURISDICTION 24-7-0920� Biswas v. Khan, U.S. Dist. Ct. (Ackerman, U.S.D.J.) (7 pp.)� The court grants N.Y. resident defendant’s motion to dismiss, for lack of personal jurisdiction, this automobile negligence case brought by N.J. resident plaintiff; where the parties were involved in an accident in West Virginia while they were driving together to school in Texas, the mere fact that they drove in N.J., or the fact that plaintiff resides here and has undergone medical treatment and incurred medical expense here, do not provide sufficient contacts to exercise jurisdiction over defendant.� [Filed Jul. 15, 1999.] ADMINISTRATIVE LAW DECISIONS CODE ENFORCEMENT� –� NEW HOME WARRANTIES 01-CAF-0921� Blume, et ux. v. Sandcastle Assoc., LLC, et al., OAL (Scott, A.L.J.)� (5 pp.)� The ALJ finds that water leakage in petitioners’ condominium is the result of defective common elements, and thus their claims are not pertinent to their individual unit and warranty, and the respondent is granted summary decision on those claims.� [Initial decision dated Jul. 13, 1999.] CONSUMER PROTECTION� –� LEMON LAW 01-CMA-0922� Dieringer v. Ford Motor Co., OAL (Ravin, A.L.J.)� (10 pp.)� Although the defective halfshaft dust excluder seals in petitioner’s 1998 Ford Explorer Limited cause a noise condition at low speeds, petitioner has not demonstrated that the condition constitutes a nonconformity which substantially impairs the use, safety or value of the vehicle.� [Initial decision dated May 14, 1999.] ENVIRONMENT� –� FISH AND GAME 01-EFG-0923� DEP, etc. v. Naylor, OAL (Tassini, A.L.J.)� (11 pp.)� Because� respondent violated fish and game laws by harvesting horseshoe crabs in a prohibited area, the ALJ� agrees with the DEP that his permit to harvest horseshoe crabs should be revoked, and that he be disqualified from holding a permit for 24 months.� [Initial decision dated Jun. 22, 1999.] ENVIRONMENT� –� WETLANDS 01-ESA-0924� Mondgock v. DEP, etc., OAL (Tassini, A.L.J.)� (17 pp.)� Where applicant purchased his lot, knowing it was “wet” and subject to the municipality’s drainage easement, and without any representation from the municipality that it would waive its rights under the easement and without any representation from the DEP that it would waive enforcement of laws, including Flood Hazard Area Control laws, and thereafter dug a pond without a permit, although he had notice that a state permit might be necessary before he could lawfully do so, the ALJ finds that applicant created his own “hardship” and denies his application for waiver of strict compliance with the Flood Hazard Area Control laws.� [Initial decision dated Jul. 7, 1999.] PUBLIC EMPLOYEES� –� DISCIPLINE 01-CSV-0925� Boone v. N.J. Dept. of Corrections, OAL (Sullivan, A.L.J.)� (9 pp. — includes ALJ’s initial decision and final decision by Mintz, Commr.)� Appellant — a principal clerk typist in the Division of Parole — was properly found guilty of insubordination and failing to follow orders when she, on her first day back from medical leave, chose to unpack her personal belongings and set up her desk, rather than prepare the high priority warrants and warrant letters she had been given.� Although the ALJ had modified the suspension from six-days to two, the Merit System Board increases the suspension to five days, since appellant was aware of the importance of her job, and had been asked three times by her supervisor to complete it.� [Initial decision dated Apr. 29, 1999; Final decision dated Jun. 25, 1999.]

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