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Vol. 3 No. 59 DECISIONS RELEASED MARCH 29, 1995 CIVIL PROCEDURE 07-2-5269 Jesse E. Russell, et al. v. Rutgers Community Health Plan, Inc., et al., App. Div. (15 pp.) The trial judge did not abuse his discretion in requiring defense counsel to explain the reason for the defense’s peremptory challenge of the only African-American prospective juror, as if a prima facie showing of racial discrimination had been made, and his conclusion that the explanation offered was not a sham must be accorded deference in the absence of an affirmative showing to the contrary. [Approved for publication March 29, 1995.] [Available online in N.J. Full-Text Decisions.] CONSTRUCTION – BONDS – LIMITATIONS 43-2-5270 Eagle Fire Protection Corp. v. First Indemnity of America Ins. Co., App. Div. (19 pp.) The trial court erred in not granting involuntary dismissal to bonding company where there was no evidence from which the jury could reasonably find that subcontractor instituted suit within one year of the general contractor’s ceasing work, as specified in the bond, and there was no evidence that subcontractor was lulled into not instituting suit (thus tolling the limitation period) by negligent or affirmative action on the part of bonding company or adjuster. [Approved for publication March 28, 1995.] [Available online in N.J. Full-Text Decisions.] ENVIRONMENT 17-2-5271 State of New Jersey, et al. v. Barry Horner, et al., App. Div. (11 pp.) (1) The trial judge’s finding that landowners had not violated the Safe Dam Act (in building a dam without a permit) because they had merely “repaired” the dam was erroneous, since the evidence clearly showed that the owners built a new and substantially larger structure, and, (2) the judge, who correctly found that landowners had violated the Flood Hazard Area Control Act (by placing fill in the flood plain during repairs), erred by exempting landowners from the permit procedure and remediation and penalty provisions of the act. INSURANCE – VERBAL THRESHOLD 23-2-5272 Theresa Blonske, et al. v. Lori A. Menzel, App. Div. (10 pp.) Where plaintiff’s vascular surgeon made a clinical diagnosis of thoracic outlet syndrome which was positively confirmed by compression tests, and opined that, whether or not the condition was originally caused by the accident, it certainly was aggravated by it, there was sufficient objective medical evidence of injury and nexus to the accident to survive defendant’s summary judgment motion,which is reversed. LABOR AND EMPLOYMENT 25-2-5273 John Schofield v. Cape May County Bd. of Chosen Freeholders, et al., App. Div. (7 pp.) Under the collective bargaining system authorized by the N.J. Employer-Employee Relations Act, the assignment judge did not have the authority to sign a wage agreement without giving the defendant freeholders an opportunity to be heard, and therefore the agreement was a nullity from its inception, and employee’s claim for breach of that contract was properly dismissed since he cannot be denied due process of a property right that never came into existence. 25-2-5274 Suburban Trails, Inc. v. United Transportation Union, Local 1589, App. Div. (12 pp.) The trial judge correctly affirmed the arbitrator’s reasonable interpretation of collective bargaining agreement that employee, detained after her shift had ended to take a federally-mandated drug test, was entitled to compensation for her time. LANDLORD/TENANT 27-2-5275 Richard Baris Properties, Inc. v. Saddle River Trails, Inc., et al., App. Div. (3 pp.) Contradictory statements regarding proposed tenant’s efforts to comply with lease contingency requiring it to obtain a certificate of occupancy create a genuine issue of material fact as to whether tenant made a reasonable effort to satisfy the contingency, and summary judgment granted in favor of tenants on the basis that the certificate of occupancy wasn’t obtained by the contingency date is therefore reversed. MUNICIPAL LAW – ANTITRUST 30-2-5276 G&W, Inc., t/a G&W Towing v. Borough of East Rutherford, et al., App. Div. (10 pp.) (1) The facts and inferences in the record support a conclusion that the municipality, acting in concert with the other defendants, wrongfully restricted the towing business in the municipality to those other defendants and excluded plaintiff towing company, and the judge’s granting of summary judgment to defendants was improper. (2) Resolution of the contractual and constitutional issues raised by plaintiff are dependent upon factual findings, and summary judgment was therefore inappropriate as to these claims as well. [Approved for publication Mar. 29, 1995.] [Available online in N.J. Full-Text Decisions.] PRODUCTS LIABILITY 32-2-5277 David Mikolai, et al. v. The Johansen Co., et al., App. Div. (8 pp.) The trial judge correctly entered a judgment in favor of manufacturer where plaintiff had failed to prove that defendant’s equipment–an industrial blender on a production line–was a cause of an explosion which killed plaintiff’s decedent, and further, plaintiff failed to prove that the equipment was defective since there was no evidence that it was feasible to design the blender with a safety device to back up the defective safety device already designed and installed by others. REAL PROPERTY – ATTORNEY/CLIENT 34-1-5278 Lisa Petrillo v. William G. Bachenberg, Jr., et al., Supreme Ct. (41 pp.) Where seller’s attorney knew of additional information regarding soil percolation tests previously conducted on the property, and condensed the information into a “composite report” which was misleading, he violated a duty he owed to the buyer not to negligently misprepresent the contents of a material document on which he knew, or should have known, the buyer would, or might, rely to her financial detriment. [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-5279 State of New Jersey v. Anthony Hendley, App. Div. (8 pp.) The trial judge could correctly determine that there was no systematic intention to create an all-white jury since he requested that the prosecutor furnish the reasons for exercising peremptory challenges as to two African-American jurors, and then noted that he was satisfied with the immediacy of the response. -

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