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Vol. 3 No. 72 DECISIONS RELEASED APRIL 18, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-5428 In the Matter of the Petition of Forest Labs, Inc…., App. Div. (9 pp.) The final administrative action of the Drug Utilization Review Council to add a thyroid drug to the list of drugs which are interchangeable under the generic drug program was not arbitrary, capricious or unreasonable and, being supported by sufficient credible evidence, is affirmed. AUTOMOBILES — INSURANCE 05-2-5429 Richard M. Granger, et al. v. Ohio Casualty Ins. Co., et al., App. Div. (5 pp.) Although car dealership manager bought vehicle in his own name, since it was bought with dealership funds, repaired with dealership labor and parts, garaged at the dealership with dealership plates, used as a loaner vehicle for dealership customers, and placed for sale on the dealership lot, the trial judge correctly concluded that the vehicle was owned by the dealership and dealership’s insurance company was responsible for coverage of accident involving the vehicle. CONTRACTS 11-2-5430 Eastern Waste, Inc. v. County of Essex, et al., App. Div. (11 pp.) Since a termination fee was a fairly negotiated term in a valid contract between sophisticated parties, it was properly enforced. CORRECTIONS — PAROLE 13-2-5431 John McElroy v. N.J. Bd. of Parole, App. Div. (6 pp.) Where the parole board’s own experts advised that there was no substantial recidivism risk if an inmate were released on parole, subject to continued counseling, a directly contrary conclusion by the board is arbitrary and an abuse of discretion, since the board failed to explain why the evaluations are to be rejected, and the decision to deny parole to the inmate is reversed. ENVIRONMENT — ARBITRATION 17-2-5432 Pride Solvents & Chemical Co. of N.J., Inc. v. High Voltage Engineering Corp., App. Div. (6 pp.) Where parties, in settlement of litigation regarding cleanup remediation of a chemically contaminated site, agreed to arbitrate disputes, the trial judge erred in holding that public policy contained in the Environmental Rights Act prevented the parties from arbitrating issues stemming from alleged breach of their settlement agreement that also may have implicated the act. ENVIRONMENT — LIMITATIONS 17-2-5433 Edgar Hurst v. N.J. Dept. of Environmental Protection and Energy, et al., App. Div. (3 pp.) A claim for damage caused by the operation or closing of a landfill must be filed within one year of the discovery of the damage, and cannot reasonably be interpreted to incorporate a continuous trespass or to allow claims to be filed at any time for damage sustained within the preceding year; therefore, plaintiff’s complaint was properly dismissed as time-barred. INSURANCE — COUNSEL FEES 23-2-5434 Joan Nodes v. Material Damage Adj. Corp., App. Div. (6 pp.) There is no legal authority to support award of counsel fees and costs to plaintiff, in an action plaintiff brought to enforce the arbitration clause of the underinsured motorist provision in her insurance policy, since the action is neither an action on liability nor an indemnity policy within the meaning of R. 4:42-9(a)(6) and therefore award is reversed. INSURANCE — VERBAL THRESHOLD 23-2-5435 Malgorzata Koltunik, et al. v. Robert S. Nix, App. Div. (6 pp.) The trial judge erred in his conclusion that the objectively proven injuries which plaintiff sustained did not have a serious impact on her life, since plaintiff’s medical evidence, together with her certifications, were sufficient to created a genuine issue of material fact for the jury. LABOR AND EMPLOYMENT 25-2-5436 Edward A. Janda v. American Golf Corp., et al., App. Div. (9 pp.) An employee handbook disclaimer clearly advised employee of his at-will status, so the motion judge correctly dismissed his wrongful termination case based on an implied-contract theory; the motion judge, however, erred in dismissing the employee’s age discrimination claim because employer’s proferred reasons for the termination were pretextual, and raised a fact question. LANDLORD/TENANT 27-2-5437 Hundal Group, Inc. v. Ansaldo Industria of America, Inc., App. Div. (7 pp.) (1) The motion judge correctly denied former tenant s summary judgment motion in landlord’s case for damages as a result of tenant’s breach of a lease, since tenant did not give the requisite notice under the lease and genuine issues of fact remained as to damages. (2) Judge mistakenly exercised his discretion in denying landlord the right to amend his complaint to prove the entirety of its damages, since there was no prejudice to tenant, who knew the substance of the damage claim, and the amendment merely addressed the quantity of damages. NEGLIGENCE — CONSTRUCTION 31-2-5438 Matteo Bellantoni, et al. v. Lehrer, McGovern Bovis of N.J., et al., App. Div. (22 pp.) In a case involving employee’s fall on construction site, where employee’s expert testified that “fall protection” was the duty of the general contractor based on industry safety practices independent of and without regard to OSHA guidelines, the court below erred when it removed the issue of safety harnesses from the jury. NEGLIGENCE — COMMERCIAL PREMISES 31-2-5439 Theresa Wasserman, et al. v. W.R. Grace & Co., et al., App. Div. (6 pp.) Where salesman used one room of his residence as a home office and was reimbursed by employer for telephone expenses, but saw no customers there, and employer had no ownership or possessory interest in house, the primary status of the house as a residence was not changed and expanded into that of “commercial premises,” and employer should have been granted summary judgment in case where plaintiff sued for injuries she sustained when she fell on sidewalk in front of house. [Approved for publication April 18, 1995.][Available online in N.J. Full-Text Decisions.] PHYSICIAN/PATIENT — JOINT CONTRIBUTION 29-1-5440 Linda B. Dunn v. Donald E. Praiss, M.D., et al., Supreme Ct. (24 pp.) Although a physician-provider, who has been found guilty of medical malpractice, may seek contribution from his health maintenance organization on the basis of its independent breach of contractual duty to patient-subscriber, the claim must be timely asserted, and since it wasn’t, physician’s cross-claims should have been dismissed. [Available online in N.J. Full-Text Decisions.] PUBLIC EMPLOYEES 33-2-5441 John J. Sudia v. Bd. of Trustees of the Public Employees’ Retirement System, App. Div. (4 pp.) Where former director of municipal housing authority was convicted in federal court of accepting bribes and income tax evasion, decision recommending total forfeiture of his pension was appropriate, despite the fact that he had been receiving the pension before the initiation of criminal charges and despite the fact that his spouse shared the benefits and relied upon them. TORTS — DEFAMATION 36-2-5442 Jeanne R. Graves, et al. v. Gerard Ryan, et al., App. Div. (8 pp.) Since the motion judge correctly determined that plaintiff, owner of a public relations firm which was actively involved in municipal government, was a public figure, his determination that she failed to sustain the heightened burden of showing actual malice by clear and convincing evidence in her case against defendants for allegedly libelous statements made in political advertisements is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-5443 State v. Richard Giordano, et al., App. Div. (6 pp.) Even though the court rules were amended in 1989 to give municipal courts jurisdiction to entertain motions to suppress evidence obtained by warrantless searches, this authority is only applicable to state and federal constitutional claims of unlawful searches and seizures of physical evidence, and, as motions to suppress Breathalyzer test results generally do not involve such constitutional claims, the rules are not implicated and therefore the denial of the motion to suppress is not reviewable on appeal. [Approved for publication April 18, 1995.] [Available online in N.J. Full-Text Decisions.] 14-2-5444 State v. Lonzo T. Liles, App. Div. (4 pp.) The trial court erred in not granting defendant an evidential hearing on his claim that counsel had failed to apprise him of his vulnerability to extended sentencing, even though defendant, in his pro se petition, did not request such a hearing, and the matter is remanded for such a hearing. 14-2-5445 State v. John C. Downs, Jr., App. Div. (8 pp.) The trial judge did not afford the defendant an adequate opportunity to confer with counsel in connection with his recusal motion, and the matter is remanded to the trial court for reconsideration of defendant’s motion after he is given a full opportunity to confer with counsel. ADDITIONAL OPINIONS APPROVED FOR PUBLICATION: 11-2-5407 Wanaque Borough Sewerage Authority v. Twp. of West Milford, et al. (April 13, 1995); 20-2-5418 S. M. v. A. W. (April 17, 1995). [Both available online in N.J. Full-Text Decisions.] -

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