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Vol. 3 No. 84 DECISIONS RELEASED MAY 4, 1995 AUTOMOBILES — LEMON LAW 05-2-5548 Catherine A. Tice v. American Isuzu Motors, Inc., App. Div. (7 pp.) On the evidence that the leak in the windshield seal of plaintiff’s new automobile was uncorrectable after many repair attempts, the state Director of Consumer Affairs was justified in concluding that the defect constituted a substantial impairment within the the “Lemon Law,” entitling plaintiff to relief. BANKING — DEBTOR/CREDITOR 06-3-5549 Citibank, South Dakota, N.A. v. Lisa A. Coffey, Law Div. (6 pp.) Since debt for bank’s administrative fee on plaintiff’s account did not exist until after the account was levied upon, bank was not entitled to deduct its fee from the account before remitting on the levy, and bank had no prospective security interest in the account to future obligations of the debtor. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] 06-2-5550 All American Auto Salvage v. Camp’s Auto Wreckers and Citibank, South Dakota, N.A. v. Lisa A. Coffey (consolidated appeals), App. Div. (10 pp.) The bank had no right of offset, as a result of a levy, for a contractual charge it had the right to make for future services that the bank would perform, and there is no enhanced right that the bank receives by claiming a security interest in an account over which the bank maintains no possessory interest to control withdrawals. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE — DEFAULT JUDGMENT 07-2-5551 First Fidelity Bank, N.A., New Jersey v. Robert P. Usa Jr., App. Div. (13 pp.) Where the record supports an inference of defendant’s purposeful avoidance of service at every turn and negates any suggestion of excusable neglect, and where defendant failed to show the possibility of a meritorious defense, judge’s refusal to re-open a default judgment was proper. INSURANCE — ENVIRONMENT 23-3-5552 Colonial Foods, Inc. v. Aetna Casualty and Surety Co., et al., Law Div. (14 pp.) Since egg processor’s transporting of “egg wash” to landfill occurred continuously over decades, the “continuous trigger” theory must be applied, and therefore defendant’s policy was on the risk from exposure through manifestation or remediation, and denial of coverage in remediation suit, alleging that exposure was prior to the policy period, was in bad faith. LABOR AND EMPLOYMENT — WHISTLE-BLOWING 25-2-5553 Lisa Jensen v. Harrah’s Casino Hotel, App. Div. (11 pp.) Since the record is devoid of evidence of “whistleblowing” in violation of the Conscientious Employee Protection Act because plaintiff did not disclose a wrongful “activity, policy or practice” of the casino, and since plaintiff failed to demonstrate any benefit to casino arising out of her allegedly retaliatory discharge, or even that her discharge was causally connected to her whistleblowing, summary judgment in favor of casino was proper. LABOR AND EMPLOYMENT 25-2-5554 Joann E. Scher v. Bd. of Review, App. Div. (7 pp.) Where an employer’s letter seeking appeal of determination that employee was entitled to unemployment benefits was not properly directed and did not satisfy the basic statutory appeal requirements, and where employee relied on the determination to her detriment, the board had no jurisdiction to review the decision and its reversal of the original determination is set aside. LAND USE — AIRPORT HAZARD ZONES — CONSTITUTIONAL `TAKING’ 26-2-5555 Mary Helen Richardson, et al. v. Alexandria Twp. Municipal Committee, et al., App. Div. (10 pp.) Landowners’ contention that creation of airport hazard zoning regulations constitutes a “taking” of their land is not sustainable in that (1) landowners do not have the right to use their property in the most profitable or economically valuable manner, but only have the right to derive some beneficial use of the property, and (2) the case is not “ripe” for a constitutional challenge since landowners have not presented a development plan, sought a variance, or demonstrated why their 15-acre “clear zone” property cannot be used for one or more of the beneficial uses permitted by the municipality and the Air Safety and Hazardous Zoning Act. NEGLIGENCE — SOCIAL GUEST/INVITEE 31-2-5556 Nicholas Eleftheriou v. Vasiliki Eleftheriou, App. Div. (3 pp.) Jury verdict of no cause in case where ex-husband sued ex-wife for injuries sustained in a fall he had while in her house to visit the children, who also resided there, was proper since husband was there fulfilling his function as a father and ex-wife received no benefit, so ex-husband was a “social guest,” not an “invitee,” and was not owed a greater duty of care by the ex-wife. REAL ESTATE — TITLE INSURANCE — ATTORNEY/CLIENT 34-2-5557 John F. Aldrich v. Richard R. Hawrylo, et al., App. Div. (18 pp.) (1) Since the 45-foot setback on plaintiffs’ beachfront property was created by a resolution of the board of adjustment and was indicated on a subdivision plan that was never recorded or required to be recorded, the landowners’ claim of loss due to their inability to build the house they wanted (since they didn’t know about the setback) arises out of the exercise of police power and is excluded from coverage under their title insurance policy, and summary judgment entered against the title company is reversed. (2) Because there were factual issues to be determined regarding whether lawyers breached a duty to disclose the setback to the buyers, and whether former owners relied on the advice of the attorneys that they did not have to disclose the setback, summary judgment on the malpractice count was improper. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] TORTS — MALICIOUS INTERFERENCE WITH CONTRACT 36-2-5558 Sebco Corp. v. Nis-Mar Realty, et al., App. Div. (4 pp.) While the record reflects that washer/dryer vending company knew of the existence of competing company’s contract with building owner, it does not support the conclusion that the company acted tortiously to induce or cause building owner to breach its contract with the competitor and enter into a new service contract, and award in favor of competitor company is reversed. CRIMINAL LAW AND PROCEDURE 14-1-5559 State v. Charles Marshall Berry & Dwayne Cannon, Supreme Ct. (36 pp.) Expert testimony in drug prosecutions generally is to be admitted provided that the trial court is satisfied that the testimony will assist the jury in resolving material factual issues, but that general rule should be tempered by the trial court’s heightened awareness that, in certain circumstances, the probative value of such expert testimony might be substantially outweighed by the risk of undue prejudice. [Available online in N.J. Full-Text Decisions.] 14-1-5560 State v. D.D.M., Supreme Ct. (27 pp.) Defendant is not entitled to post-conviction relief on a claim of the illegality of his sentence since his applications, filed more than seven years after his conviction and sentencing, were time-barred under R.3:22-4. [Available online in N.J. Full-Text Decisions.] 14-2-5561 State v. Philip DeAngelis, App. Div. (12 pp.) Unlike an offer of compromise in a civil suit, evidence that the defendant admitted his guilt and promised to furnish money to the victim in settlement of a claim in order to avoid criminal prosecution is, in essence, an attempt to “buy-off” the victim and is admissible against him to prove his wrongdoing. [Approved for publication.] [Available online in N.J. Full-Text Decisions.]

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