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STATE COURT CASES ATTORNEY/CLIENT — EXPERT TESTIMONY 04-2-3004 Fabi v. Family, App. Div. (per curiam) (3 pp.) Although plaintiff was not required to file an affidavit of merit to support his legal malpractice claim, as the facts occurred prior to the effective date of the statute, he nevertheless was required to, but could not, produce expert testimony to opine that defendant was negligent; therefore, his complaint was properly dismissed. Additionally, the underlying claim was barred by the statute of limitations prior to the time plaintiff retained defendant to represent him; therefore, defendant’s representation caused no injury to plaintiff. CONSTRUCTION — ENTIRE CONTROVERSY — ARBITRATION — UNJUST ENRICHMENT 43-2-3005 M.P. Hunt & Son, Inc. v. Primrose Lane Village, Inc., etc., et al., App. Div. (per curiam) (14 pp.) This suit involves the attempts of plaintiff — a topsoil stripping and sewer installation contractor — to collect its fees for work performed on a single family development on the property of defendant Primrose. The panel holds that plaintiff’s second action for unjust enrichment against Primrose is barred by the entire controversy doctrine; when plaintiff filed its first breach of contract action against the general contractor and Primrose, it did not, but should have, asserted the unjust enrichment claim as well. However, the panel affirms the judge’s decision in striking the defendants’ answer and entering judgment in favor of plaintiff on the other counts of the complaint in the face of defendants’ counsel’s failure to attend the R. 4:21A arbitration; counsel unreasonably took no action to confirm that his adjournment request had been received or granted, and there was no mention of a meritorious defense. [Decision dated Mar. 5, 2003.] CONTRACTS — TORTIOUS INTERFERENCE 11-2-3006 All Phase Employment, Inc., etc. v. PSE&G, et al., App. Div. (per curiam) (10 pp.) The plaintiff/employment agency, along with other agencies, provided workers for a number of years to defendant PSE&G; however, PSE&G ultimately determined to contract solely with defendant Adecco. As a result, the temporary workers plaintiff provided to PSE&G subsequently became Adecco employees, and plaintiff sued. The Law Division judge correctly granted summary judgment to the defendants, dismissing plaintiff’s complaint for tortious interference with its contractual relationship with these workers, on the ground that plaintiff’s contract with its employees unreasonably restricted them from future employment and was, therefore, unenforceable. CORRECTIONS — DISCIPLINE 13-2-3007 Griffith v. Dept. of Corrections, App. Div. (per curiam) (5 pp.) The inmate-appellant was justly disciplined for threatening another with bodily harm after telling a senior corrections officer, “you better watch yourself,” in response to the same comment made by the SCO during a routine frisk. CORRECTIONS — DISCIPLINE — CLASSIFICATION 13-2-3008 Clarke v. N.J. Dept. of Corrections, App. Div. (per curiam) (11 pp.) The appellate court holds that the inmate-appellant: (1) was properly denied protective custody when an investigation failed to substantiate the alleged threats against him; (2) was appropriately disciplined for refusing to return to the general prison population after this denial and for refusing to exit his detention cell when ordered to do so; and (3) was properly classified as “gang minimum” status based on his prior criminal record, including a prior escape, a parole violation, and the fact that the prison was located in a residential area. CORRECTIONS — PAROLE 13-2-3009 Jacobs v. N.J. State Parole Bd., App. Div. (per curiam) (3 pp.) The Parole Board correctly computed appellant’s parole eligibility and established a twenty-eight month future eligibility date, based on the facts, inter alia, that appellant had previously committed criminal offenses while released on parole, and had his commutation credits reduced as the result of infractions of prison discipline. FAMILY LAW — COUNSEL FEES 20-2-3010 Scally v. Scally, Jr., App. Div. (per curiam) (6 pp.) The appellate court finds no abuse of discretion in the trial court’s order granting plaintiff’s request for counsel fees related to her enforcement of litigant’s rights application, albeit in a lesser amount than that requested. FAMILY LAW — FINANCIAL ASPECTS OF THE DIVORCE JUDGMENT 20-2-3011 Schlessman v. Schlessman, App. Div. (per curiam) (4 pp.) The judgments of the trial judge are based upon findings of fact which are adequately supported by the evidence, and the panel affirms the alimony award; the determination of the wife’s child support obligation to the husband — the primary residential custodian of the children; the equitable distribution of the parties’ assets; and the denial of the wife’s application for counsel fees. INSURANCE — P.I.P. 23-2-3012 Negron v. Colonial Penn Ins., etc., App. Div. (Landau, J.A.D., ret. and t/a on recall) (6 pp.) The plaintiff was injured after he left a vehicle, in which he was a passenger, to help his brother-in-law, the driver, who had been knocked to the ground in the parking lot of a bar. Although giving full weight to plaintiff’s factual contention that the driver left the car to confront a belligerent person who was impeding the car’s forward progress and banging on the hood, the panel affirms the grant of summary judgment to the PIP carrier. The record supported only plaintiff’s asserted purpose of helping his brother-in-law after he was knocked to the ground. The panel concludes that the latter falls short of the requisite “substantial nexus” because intervening circumstances prompted plaintiff’s departure from the vehicle. Extending to plaintiff the aura of “substantial nexus” that might arguably surround the driver does not comport with either existing case law or the purposes of the no-fault law. [Approved for publication Mar. 6, 2003.] INSURANCE — P.I.P. — LIMITATIONS 23-1-3013 Everett v. State Farm Indemnity Co., Supreme Ct. (per curiam) (5 pp. — including dissent by Long, J.) The process of adjusting the heating pad bill to the fee schedule and applying the balance to the insured’s deductible constituted a “last payment of benefits” under the No-Fault Insurance Act, making plaintiff’s PIP complaint, which was filed within two years of that date, timely. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-3014 Raguckas v. Bd. of Review, et al., App. Div. (per curiam) (5 pp.) Because she had a reasonable assurance of renewal of her ten-month teaching contract with the Trenton Board of Education, the claimant was justly denied unemployment compensation benefits at the end of her ten-month employment with Trenton, when she commenced employment with another school district. LAND USE — FINDINGS 26-2-3015 McKenna v. Zoning Bd. of …Bayonne, et al., App. Div. (per curiam) (5 pp.) Although the plaintiff filed her complaint in lieu of prerogative writs — challenging the grant of site plan approval and variances to the applicant — beyond the 45-days from publication of the notice, the judge gave no reasons for granting summary judgment or denying plaintiff’s reconsideration motion and motion for restoration of her complaint “in the interests of justice”; therefore, remand is necessary for the trial court to make findings of fact and conclusions of law. MUNICIPAL LAW — INVALIDATING ORDINANCES 30-2-3016 N.J. Builders Assn., etc. v. Twp. of Egg Harbor, etc., et al., App. Div. (per curiam) (9 pp.) The panel reverses a judgment which invalidated an ordinance requiring developers in the Pinelands portion of the defendant Township to provide a twenty-year maintenance guarantee for stormwater management systems. Pursuant to N.J.S.A. 13:18A-12(b), the Pinelands Commission certified that the ordinance was in conformance with the minimum standards of the Commission’s Comprehensive Management Plan adopted pursuant to statute. The trial judge erred in concluding, nonetheless, that the ordinance was invalid because the twenty-year maintenance guarantee exceeded that permitted under the MLUL, which permits only a two-year guarantee, and because he thought that the CMP, which would take precedence over the MLUL provision, authorized no more than a four-year guarantee. PARENT/CHILD — TERMINATION OF RIGHTS 28-2-3017 I/M/O Guardianship of S.F.R., a Minor, State of N.J., D.Y.F.S. v. P.R., App. Div. (per curiam) (4 pp.) The appellant’s parental rights to his three-and-one-half-year-old daughter were appropriately terminated, the evidence demonstrating that appellant had a long history of drug use and domestic violence with the child’s mother; moreover, there was no bonding between appellant and the child, and significant bonding with her foster parents. PARENT/CHILD — TERMINATION OF RIGHTS — DELAYS 28-2-3018 N.J. D.Y.F.S. v. P.B.; I/M/O Guardianship of D.S.B., a Minor, App. Div. (per curiam) (17 pp.) The appellant’s parental rights to her almost five-year-old son were appropriately terminated, the evidence demonstrating a history of drug abuse and child neglect; the psychological evaluation of appellant revealed a severe mental disorder which warranted serious intervention with therapy and psychotropic medication in a long-term residential treatment program. The panel rejects appellant’s argument that the admittedly inordinate twenty-eight month delay between the filing of the termination complaint and the trial deprived her of her right to a fundamentally fair guardianship trial; if anything the delay afforded appellant more time to correct her own deficiencies, which she did not do. Further, appellant’s own conduct in not appearing in court was responsible for some of the delay which occurred. [Decision dated Mar. 5, 2003.] PUBLIC EMPLOYEES — LAYOFFS — DISPLACEMENT RIGHTS 33-2-3019 I/M/O Dutta, et al., etc., App. Div. (per curiam) (7 pp.) The panel finds the DOP’s specific decision related to appellant’s displacement rights to be neither arbitrary, capricious, nor unreasonable, and affirms; however, the DOP never addressed the question which the parties now urge the panel to resolve — whether appellant should have been provided the right to displace someone with less seniority than she in the title of Electrician, or whether the position of Electrician is higher than the position of Electronic Systems Technician, such that a lateral move would not be possible — and the panel’s decision is without prejudice to apellant’s submitting that question to the DOP for a specific determination. PUBLIC EMPLOYEES — TERMINATION 33-2-3020 Stevenson v. Burlington Cy., etc., App. Div. (per curiam) (10 pp.) The record supports the Merit System Board’s conclusion that, although petitioner was guilty of conduct unbecoming a public employee because she did not adequately respond to the appointing authority’s inquiries about a misdirected check, she was wrongfully terminated from her position as a clerk typist with respondent, since the appointing authority failed to demonstrate that petitioner was responsible for misappropriation of funds, as charged. REAL ESTATE — ATTORNEY REVIEW PERIOD 34-2-3021 Romano, et ux., et al. v. Chapman, et ux., App. Div. (Stern, P.J.A.D.) (14 pp.) The history behind the “three-day review” provision of a form real estate contract reveals that it was designed to give the parties an opportunity for their respective attorneys to review the otherwise binding agreement. Therefore, once the contract is approved by the attorney, it remains binding upon the client if accepted in the approved form by the other party. As a result, where the sellers’ attorney approved the contract in a form approved by the buyers’ attorney, the sellers could not cancel the contract even within the remaining portion of the three-day review period. [Approved for publication Mar. 6, 2003.] CRIMINAL LAW AND PROCEDURE — BURGLARY 14-2-3022 State v. Young, App. Div. (per curiam) (12 pp.) Defendant’s burglary conviction must be vacated because the State failed to prove, beyond a reasonable doubt, that the defendant was not privileged to be in the apartment in question on the night of the alleged offense, and because the court’s instruction erroneously allowed the jury to convict defendant of burglary even if it found that he was privileged to be in the apartment, if it did not also find that he had a separate privilege to enter one of the bedrooms within the apartment. CRIMINAL LAW AND PROCEDURE — OTHER CRIMES EVIDENCE 14-2-3023 State v. Melyan, App. Div. (per curiam) (16 pp.) In this case dealing with defendant’s discharge, twice, of a revolver in the direction of his mother, and then in the direction of a friend, the appellate judges hold that the trial court committed reversible error in allowing the State to present other crimes evidence demonstrating defendant’s propensity to commit acts of violence, particularly against his mother; therefore, defendant’s convictions for possession of a weapon for an unlawful purpose and aggravated assault must be reversed. Defendant’s convictions for tampering with evidence and possession of a controlled dangerous substance are affirmed. [Decision dated Mar. 5, 2003.] CRIMINAL LAW AND PROCEDURE — SEARCH & SEIZURE 14-2-3024 State v. Chapparo, App. Div. (per curiam) (7 pp.) The trial judge erred in concluding that the affidavit in support of the search warrant in this case did not establish probable cause; the appellate court reverses the order granting defendant’s motion to suppress evidence seized during the execution of the warrant, and remands for further proceedings. ****** Correction: In yesterday’s Alert, the topic heading for 14-2-3003 State v. Hilkevich, should be Criminal Law and Procedure — Sexual Assault — Expert Testimony, not Criminal Law and Procedure — Search & Seizure. —END—

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