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VOL. 3 NO. 14 DECISIONS RELEASED JAN. 23, 1995 CIVIL PROCEDURE 07-2-4777 Harry J. Neher, II et ux. v. Hazel Montgomery, et al., App. Div. (3 pp.) Where plaintiff’s attorney injured his back and was confined to bed, “extraordinary circumstances” standard was sufficiently satisfied to relax the 30-day time limit to file for a trial de novo. CIVIL RIGHTS 46-2-4778 In re the Commitment of D.W., App. Div. (10 pp.) Patient’s confinement to psychiatric hospital was properly continued for five additional weeks where she still suffered from a mental illness and still reasonably presented a substantial risk of dangerous conduct in the foreseeable future. INSURANCE 23-2-4779 Alliance Insurance Agency v. Samuel Fortunato, Commissioner, et al., App. Div. (3 pp.) and Alliance Insurance Agency v. Allstate Insurance Company, App. Div. (2 pp.) Commissioner properly sustained Allstate’s termination of plaintiff’s agency assignment under the FAIR Act’s Producer Assignment Program, imputing employee’s falsification of documents to agency. 23-2-4780 In re the Appeal of Morris Winograd. t/a Winograd Insurance Agency, App. Div. (5 pp.) and In re the Assignment of Morris Winograd to the Continental Group, App. Div (5 pp.). The Market Transition Facility correctly terminated plaintiff’s contract as producer for failure to remit unearned commissions to a carrier, and despite MTF’s having no objection to plaintiff’s reinstatement, Commissioner has final jurisdiction to reject the application where there is sufficient evidence. INSURANCE – AUTOMOBILE 23-2-4781 Kathleen Quinn v. Timothy Storey, App. Div. (4 pp.) Plaintiff failed to meet Oswin v. Shaw standard of showing either a permanent consequential use of a body organ or member, or a significant limitation of use of a body function or system. LABOR AND EMPLOYMENT 25-2-4782 Josephine Prisco v. Township of Vernon, App. Div. (3 pp.) Dismissal of tax collector’s complaint alleging discrimination in salary increase was proper since, although plaintiff had made out a prima facie case of discrimination by measuring the wage increases by percentage rather than dollar amount, the municipality then produced the required evidence of “good cause” for the disparity. 25-2-4783 Nancy A. Horber v. Board of Review, App. Div. (5 pp.) Denial of unemployment compensation benefits appropriate where plaintiff failed to prove that the physical problems she experienced were caused by workplace conditions and not by her idiosyncratic reactions to normal levels of allergens. 25-2-4784 Dolores Merletto v. Board of Review, App. Div. (5 pp.) Ineligibility for unemployment benefits was appropriate where plaintiff voluntarily quit her job after relocating her residence, since relocation is a personal reason and mere reduction of hours, resulting in lower income, did not constitute sufficient connection between relocation and the employment to render such reason a “good cause attributable to such work.” NEGLIGENCE 31-2-4785 Ralph A. Palazzi, Jr. v. Edward T. Major et al., App. Div. (5 pp.) Auxiliary police officer’s personal injury claim should not have been barred by the Fireman’s Rule — which still applied to injuries occurring before the Rule was abolished on January 5, 1994 — where cause of injury was an independent, intervening third-party act not inherent in the nature of the risk assumed on the scene to which officer had been dispatched. 31-2-4786 Anthony Triarsi v. Linda L. Smith, App. Div. (2 pp.) In a one-car accident, defendant driver’s “mere explanation” of the events is not enough to support a summary judgment dismissing plaintiff passenger’s complaint and credibility of defendant’s story is issue for the jury. PHYSICIAN-PATIENT – NEGLIGENCE 29-2-4787 Antonio Caetano et al. v. West Hudson Hospital et al., App. Div. (5 pp.) Plaintiff was entitled to a directed verdict on liability where defendant nurse admitted that, in trying to cut patient’s arm hair to free catheter, she accidentally cut off tip of the catheter, which entered patient’s vein and lodged in his pulmonary artery, and that such was not an accepted practice. PUBLIC EMPLOYEES 33-2-4788 In re Essex County Vocational-Technical Board of Education v. Essex County Vocational Administrators and Supervisors Association, App. Div. (3 pp.) PERC correctly certified representation to Association, over Board’s objection, inasmuch as PERC specifically recognized the statutory prohibition against a “consolidated supervisory and nonsupervisory unit” raised by the Board and was satisfied that the Association was not in violation of the prohibition. REAL ESTATE – COMMERCIAL LEASE 34-2-4789 Victory Corrugated Container Corp. of N.J. v. David Kleinman, et al., App. Div. (11 pp.) Where coupling in sprinkler system failed under pressure, causing flooding of and damage to leased premises, and where landlord disavowed any knowledge of prior problems or defects in sprinkler system, language in the lease stating that, “to the best of the landlord’s knowledge, information and belief” demised premises were free of defects, and that tenant accepted premises in their present condition, was sufficient to dismiss tenant’s damages claim against landlord. CRIMINAL LAW AND PROCEDURE 14-2-4790 State v. Michael P. Megargel, App. Div. (21 pp.) Where the mitigating factors substantially outweighed the aggravating factors, and where the interest of justice so demanded, trial judge did not abuse discretion and properly sentenced defendant to second-degree kidnapping although jury found him guilty as first-degree offender. [Approved for publication Jan. 23, 1995. Available in LIBRARY => NJ Full-Text Decisions.] A VOL. 3, NO. 15 DECISIONS ISSUED JAN. 24, 1995 ALCOHOLIC BEVERAGES – TORTS 47-2-4791 Cynthia I. Cohrs v. Stanley A. Rancitelli, et al., App. Div. (2 pp.) Plaintiff made out a prima facie case of dram shop liability against restaurant — even in the absence of eyewitness or expert testimony — where record showed that substantial quantity of alcohol was consumed by driver, that accident occurred just minutes from driver’s leaving restaurant and that driver was extremely intoxicated at scene, such that jury could infer that driver’s intoxication was visible while being served at restaurant. ADMINISTRATIVE LAW-CONTRACTS 01-2-4792 Middle Department Inspection Agency, Inc. et al. v. N.J. Dept. of Community Affairs, App. Div. (8 pp.) Challenge by plaintiff, a private inspection and plan review agency, rejected where Commissioner’s adopted certain amendatory regulations requiring that a municipality engaging private agencies do so through open bidding rather than by setting fees as specified in the prior statute. [Approved for publication Jan. 24, 1995.] ATTORNEY/CLIENT – PRIVILEGE 04-3-4793 Trilogy Communications, Inc. v. Excom Realty, Inc., Law Div. (9 pp.) The inadvertent production of a privileged document in discovery does not constitute a waiver of the attorney-client privilege, since a waiver must be knowing and intentional. [Approved for publication Jan. 23, 1995.] BANKING 06-02-4794 Martin Glennon, Inc. v. First Fidelity Bank, N.A. et al., App. Div. (17 pp.) Summary judgment for plaintiff properly granted in conversion action where defendant, the depository bank of certain checks bearing allegedly forged endorsements, failed to follow “reasonable commercial standards” in opening a personal account and allowing deposit of checks payable to a corporate payee. [Approved for publication Jan. 20, 1995.] CIVIL PROCEDURE 07-2-4795 Dalia Products Corporation v. Cheng Ching Wang, et al., App. Div. (4 pp.) Trial court’s dismissal of complaint as to defendant on ground of forum non conveniens reversed inasmuch as jurisdiction over the person had been established by defendant’s status as resident of this state and defendant did not meet burden of clear showing of real hardship or some other compelling reason. 07-2-4796 Robert P. Fair v. Cecelia M. Jackson, App. Div. (3 pp.) Denial of motion to vacate default judgment reversed, based on finding of excusable neglect, where defendant (1) had extraordinary child care issues revolving around her infant’s affliction with sleep apnea and risk of Sudden Infant Death Syndrome and (2) had been on disability and could not afford an attorney. 07-2-4797 National Waste Disposal, Inc. v. A.T.M, et al., App. Div. (5 pp.) Defendants’ appeal from their fourth attempt to vacate a default judgment and to set aside a levy was denied inasmuch as failure to seek reconsideration of or take a timely appeal from the original order denying such relief constitutes a mockery of the rules for appeal. INSURANCE – CONSTITUTIONAL LAW 23-2-4798 Joseph H. Taylor et ux. v. Daniel Rorke, App. Div. (13 pp.) “The Deemer Statute,” N.J.S.A. 17:28-1.4, which makes nonresidents subject to New Jersey’s verbal threshold, does not violate the Privilege and Immunities Clause of the United States Constitution, since the ability of a nonresident to sue for non-economic damages is not a fundamental right “basic to the livelihood of the nation,” and non-resident driver’s personal injury suit was thus properly dismissed. [Approved for publication Jan. 24, 1995.] LABOR AND EMPLOYMENT 25-2-4799 Joyce A. Shulas v. Bd. of Review, et al., App. Div. (5 pp.) Factory worker who, although alleging dissatisfaction with her treatment at the job, continued to work there for six years and testified that she quit because she was threatened with being fired, did not establish resignation based solely on “good cause attributable to the work,” and finding of ineligibility for unemployment benefits was appropriate. TAXATION 35-5-4800 VSH Realty, Inc. v. Harding Twp./Conine v. Harding Twp., Tax Court (8 pp.) County Board of Taxation was justified in dismissing a case before it for lack of prosecution for failure of taxpayers to present sufficient proof of value and, therefore, tax court lacked jurisdiction to hear case on appeal, but where some proof of value was presented on the companion case, dismissal was improper and tax court may hear appeal. WORKERS’ COMPENSATION 39-1-4801 Linda Volb, et al. v. G. E. Capital Corporation, et al, Supreme Court (42 pp.) Because the decedent was neither a regular nor a special employee of defendant company, the employer immunity of the Worker’s Compensation Act does not directly bar the estate’s tort action against defendant company, and since immunity of fellow worker employed by affiliated company does not extend to his employer, there is no indirect bar. CRIMINAL LAW AND PROCEDURE – JUVENILE LAW 14-2-4802 State of New Jersey in the Interest of T.B., App. Div. (3 pp.) Conviction reversed because evidence was insufficient to sustain inference that defendant was involved in attempted car theft where eyewitness identified juvenile solely as black male in a white T-shirt with a sticker on the front, and police officer did not observe juvenile near the vehicle in question but apprehended him simply because he was in the vicinity. 14-2-4803 State of New Jersey v. David Mitchell, App. Div. (5 pp.) Prosecutor’s statement in summation that “it takes two to tango” was a response to defense counsel’s attack on the credibility of witness — defendant’s paramour — and did not constitute an unjust comment on defendant’s constitutional right not to testify. 14-2-4804 State of New Jersey v. David A. Carson, App. Div. (4 pp.) Where the record reflects no appeal from the sentence and no endeavor to directly challenge the denial of a presentence motion to withdraw the guilty plea, those issues cannot be raised by a motion for post-conviction relief based on claimed ineffective assistance of counsel.

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