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STATE COURT CASES ATTORNEY/CLIENT — CONFLICT OF INTEREST 04-3-6085 Deming v. Garden State, Law Div. (Humphreys, J.S.C., t/a on recall) (11 pp.) Plaintiff, an attorney, brought this declaratory judgment action against his legal malpractice carrier which, after undertaking to represent and defend him in a malpractice fraud suit, obtained summary judgment on the malpractice claim and refused to continue the defense on the fraud claim. The carrier moves here for an order disqualifying plaintiff’s chosen counsel, on the ground that the firm had previously done defense work for the carrier, and knew its confidential policies, strategies, etc. The judge finds, on the facts of this case, that no actual conflict of interest is present and that the carrier will not be prejudiced by permitting chosen counsel to continue to represent plaintiff; plaintiff, on the other hand, would be severely and unfairly prejudiced if counsel were disqualified. [Decision dated Feb. 14, 2001.] BANKING — PROVISIONAL CREDITS — LEVIES 06-2-6086 DNI Nevada, Inc. v. Medi-Peth Medical Lab, Inc. v. Skylands Community Bank, App. Div. (Rodriguez, A.A., J.A.D.) (8 pp.) A provisional credit — which a bank may give a customer while a deposited check clears — is not property that can be levied upon. Therefore, a depository bank can charge back a provisional credit if the check does not clear, even after a levy has been placed on the account. [Approved for publication Feb. 22, 2001.] CONSTRUCTION 43-2-6087 Affordable Housing Developers, Inc. v. The Thomas Group, Inc., et al., App. Div. (per curiam) (14 pp.) The Chancery Division judge properly confirmed arbitration award which ordered plaintiff (project designer/builder) to pay defendant (general contractor) $606,273+, subject to certain conditions. The judge rejected plaintiff’s contention that the award could not be confirmed because defendant failed to comply with the condition precedent; even assuming such failure, this does not affect the validity of the award. Nor did the trial judge’s rejection of plaintiff’s subrogation claims constitute clear error warranting reversal and remand for a plenary hearing. CORRECTIONS — PAROLE 13-2-6088 Henderson v. N.J. State Parole Bd., App. Div. (per curiam) (3 pp.) The Parole Board did not fail to give inmate proper Curry credits in computing his parole eligibility date, as the facts in this case bore no resemblance to those in Curry. Inmate’s NJ sentence was expressly made consecutive to the federal sentence he was serving; thus, he began serving the NJ sentence — and was first entitled to credit for serving that sentence — only after his federal release. EDUCATION — EMPLOYMENT CLAIMS 16-2-6089 Grompone v. Jersey City Bd. of Education, et al., App. Div. (per curiam) (4 pp.) The court correctly dismissed, as time-barred, all of tenured teacher’s tort and contract claims against defendants with the exception of one claim — involving tenure issues and the enforcement and implementation of a Dept. of Education approved settlement — which it properly remanded to the Education Commissioner, who had jurisdiction over and expertise with that aspect of the dispute. FAMILY LAW — ALIMONY 20-2-6090 Rutherford v. Rutherford, App. Div. (per curiam) (7 pp.) The motion judge erred in denying defendant’s Lepis motion for increased alimony without requiring discovery or a plenary hearing, since defendant presented enough evidence to establish a prima facie case of changed circumstances — specifically her failing health, inability to earn, and the effect of inflation upon her as the supported spouse — to warrant financial discovery and a plenary hearing on the application. FAMILY LAW — COUNSEL FEES 20-2-6091 Katz v. Katz, App. Div. (per curiam) (4 pp.) Because the record does not contain the financial or other information required by R. 1:7-4, and because the judge apparently found that defendant had not acted in bad faith in filing his motion to modify visitation, his award to plaintiff of almost $5,000 in counsel fees is reversed and remanded for findings on the factors set forth in the rule. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-2-6091 Cordeiro v. Bayway Refining Co., App. Div. (per curiam) (5 pp.) The Director of the Div. on Civil Rights correctly dismissed plaintiff’s age and national origin discrimination, failure to promote case. Although plaintiff made out a prima facie case, the defendant advanced a legitimate and non-pretextual reason for not promoting plaintiff — to wit, that he was a poor welder and had ranked near the bottom following the evaluation process. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6092 Weber-Smith v. Bd. of Review, etc., et al., App. Div. (Ciancia, J.A.D.) (6 pp.) On the facts of this case, the court concludes that claimant, a 12-month, part-time teacher, was improperly denied unemployment benefits when her scheduled summer classes were canceled for undersubscription and she was out of work for the summer. Although the Board and Appeals Tribunal found that plaintiff had reasonable assurances that she would be reemployed the following term, the panel holds that the facts do not fit within either the letter or the spirit of the legislative prohibitions expressed in N.J.S.A. 43:21-4(g)(1) or (2). [Approved for publication Feb. 22, 2001.] LANDLORD/TENANT — MALICIOUS PROSECUTION 27-2-6093 Richards v. Papazian, et al., App. Div. (per curiam) (7 pp.) The judge aptly granted summary judgment to the defendants/landlords on plaintiff/tenant’s malicious prosecution claims, finding that defendants had probable cause to file their underlying criminal complaint — for theft after plaintiff removed doors and hinges when vacating the demised commercial premises, notwithstanding a lease provision that any improvements were to remain on the property — and that plaintiff did not suffer a special grievance, thereby failing to show that she sustained compensable damages. LAND USE 27-2-6094 Witt, etc., et al. v. Maywood Planning Bd., et al., App. Div. (per curiam) (3 pp.) Over plaintiffs’ objection, the court affirms the decision of the defendant Board (1) approving a site plan and subdivision application, allowing the bank-applicant to construct a bank with three drive-through lanes; and (2) granting a bulk variance that allowed a canopy to extend over the last drive-through lane, into a set-back prohibition. MUNICIPAL LAW — SNOW REMOVAL — IMMUNITY 30-2-6095 Cabrera v. City of Camden, et al., App. Div. (per curiam) (7 pp.) Discussing and finding applicable the line of cases implicating immunity principles respecting municipal snow removal activities, the court declines to expand the narrow exception to non-liability of Bligen to the circumstances here, where plaintiff did not have a landlord-tenant relationship with the City and did not live in the building she was about to enter, when she fell on accumulated snow and ice. Here, plaintiff — who was a volunteer worker at the County EEO Commission, whose offices were located in a City-owned building — fell on her way to work. On these facts, the immunity applies. NEGLIGENCE — SLIP AND FALL 31-2-6096 Warner v. Fleet Bank, N.A., App. Div. (per curiam) (5 pp.) The judge appropriately granted defendant’s motion to dismiss plaintiff’s door jamb slip and fall case at the end of her proofs, after first granting defendant’s motion striking plaintiff’s expert testimony as a net opinion which failed to provide a standard of care violated by defendant. Although plaintiff argues that the judge erred in concluding that her expert could not establish a standard of care unless a violation of the BOCA Code was established; this argument misconceives the basis for the judge’s ruling. Even if plaintiff were correct that BOCA constitutes only a minimal standard, and that expert testimony could establish another standard for negligence, the fact is that her expert did not testify as to any other standard other than a reference to “generally accepted engineering principles.” PHYSICIAN/PATIENT — WRONGFUL DEATH 29-1-6097 LaFage v. Jani, M.D., Supreme Ct. (Coleman, J.) (85 pp. — including two concurring opinions, one by Stein, J. and one by LaVecchia, J.) The Wrongful Death Act’s statute of limitations may be equitably tolled for minors. REAL ESTATE — CONDEMNATION — BROKERS’ COMMISSIONS 34-2-6098 Fox & Lazo, Inc., etc. v. Marlton Circle Assocs., App. Div. (per curiam) (12 pp.) The appellate panel reverses trial judge’s order –requiring that defendant pay plaintiff broker a full real estate commission — based on his ruling that plaintiff broker was the efficient procuring cause of the sale of property between defendant and the NJ DOT. In fact, the broker negotiated in condemnation proceedings between the parties; and this does not constitute a “sale” of property. However, plaintiff is entitled to recover a reasonable consulting fee under quantum meruit principles; and the panel determines that the fee of $12,720 already paid to plaintiff was reasonable. WORKERS’ COMPENSATION 39-2-6099 Vladyka v. Nitta Casings, Inc., App. Div. (per curiam) (8 pp.) In this case, petitioner’s work-related injury was undisputed; the issue involved whether he had suffered “permanent partial disability.” Although the factual issues in this case were hotly contested and petitioner’s proofs can fairly be characterized as slim, the panel can conclude that the judge’s findings and conclusions could reasonably have been reached on the sufficient credible evidence present in the record. The judge’s award of 5% partial total arising out of the surgical repair of an inguinal hernia is affirmed. CRIMINAL LAW AND PROCEDURE — EXPUNGEMENT 14-2-6100 In re Application for Expungement by Wasylak, App. Div. (per curiam) (4 pp.) Petitioner’s conviction — for possession of cocaine with intent to distribute — was not expungeable since he possessed cocaine with an intent to sell. N.J.S.A. 2C:52-2c. CRIMINAL LAW AND PROCEDURE — NO EARLY RELEASE ACT 14-2-6101 State v. Sanderson, App. Div. (per curiam) (8 pp.) Although the jury’s guilty verdict is affirmed — convicting defendant of second degree aggravated assault and two charges of weapons possession — the court remands for the hearing required by N.J.S.A. 2C:43-7.2e to determine, in the context of the specific circumstances here, whether the knife itself and defendant’s use, intention and knowledge respecting it meet the definition of the No Early Release Act. Defendant was found guilty of two possessory offenses involving a weapon; but the consequences of the NERA are exceedingly harsh and should be reserved only for the truly violent crimes intended to be encompassed thereby. CRIMINAL LAW AND PROCEDURE — PLEAS — SENTENCING 14-2-6102 State v. Wright, App. Div. (per curiam) (10 pp.) Discussing State v. Shaw, State v. Brimage, and State v. Rolex, the court remands to the Law Division for reconsideration of defendant’s sentence in light of Shaw, including consideration of whether the prosecutor acted arbitrarily in considering defendant’s non-appearance at sentencing as a factor and whether enforcement of the negotiated plea would be fundamentally unfair constitute a miscarriage of justice. FEDERAL COURT CASE IMMIGRATION 51-8-6103 Abdulai v. Ashcroft, etc., Third Cir. (Becker, Chief C. J.) (21 pp.) The circuit judges hold that the Board of Immigration Appeals may, consistent with existing law, sometimes require otherwise credible applicants for asylum or withholding of removal to present evidence corroborating their stories in order to meet their burden of proof. [Filed Feb. 12, 2001.]

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