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Vol. 3 No. 117 DECISIONS RELEASED JUNE 22, 1995 STATE COURT CASES DEBTOR/CREDITOR 15-2-5959 Underwriters Funding Co. v. Bernard Weissman, et al., App. Div. (4 pp.) Under the summary judgment standard, the certifications, exhibits and pleadings raise a material issue of fact concerning defendants’ claim that no monies are owed on the promissory note due plaintiff as a result of a set-off owed to defendant by plaintiff, and judgment for plaintiff is reversed. ENVIRONMENT — CONSTITUTIONAL LAW 17-2-5960 Passaic Count Utils. Auth. v. Frank’s Sanitation Inc., et al., App. Div. (9 pp.) Judgment imposing statutory civil penalties against waste hauler for violation of waste- flow regulations is affirmed since there was sufficient evidence that violations occurred, and the trial judge properly refused to consider the merits of plaintiff’s constitutional challenge to New Jersey’s waste flow regulations, since the challenge was procedurally infirm and was not raised in a timely manner. FAMILY LAW 20-2-5961 Suzan Gobrial v. Waji Gobrial, App. Div. (3 pp.) Mother’s application to suspend father’s visitation rights with children was properly denied since there was substantial evidence that the mother had coached the children in making sexual abuse allegations against the father. 20-2-5962 Marin Ibrahim v. John Ibrahim, App. Div. (3 pp.) Although DYFS, at the court’s direction, prepared a thorough and careful report investigating father’s allegations of wife’s neglectful treatment of child, it does not appear that this report was made available to the father, nor was he informed of the substantive content of the report; therefore denial of father’s application to transfer custody of the child to him from the mother is reversed and matter is remanded. 20-2-5963 Kathleen Digrigoli v. Salvatore Digrigoli, App. Div. (3 pp.) The judge improperly denied husband’s motion for a reduction in child support due to a change of circumstances where the record contains a clear statement from his treating physician that defendant was totally and permanently disabled. INSURANCE — P.I.P. 23-2-5964 Jennifer Malone v. Rutgers Casualty Ins. Co., App. Div. (7 pp.) Where plaintiff uninsured-vehicle owner did not show a “conscious determination to prevent the use of the uninsured vehicle”– in that she kept the vehicle at her mother’s home when she moved there, moved it in and out of the driveway, and drove it to a repair shop–she did not remove herself from the statutory disqualification for PIP benefits under N.J.S.A. 39:6A-7b(1) and judgment entered in her favor, because she was not operating the uninsured vehicle at the time of the accident, was erroneous. LABOR AND EMPLOYMENT — SEX DISCRIMINATION 25-2-5965 Jody L. Eckert v. Haworth Inc., et al., App. Div. (10 pp.) Summary judgment dismissing plaintiff’s sex discrimination complaint against her former employer was proper since, (1) the disparate treatment issues are precluded by collateral estoppel, in that she already has had these identical issues adjudicated in federal court, and (2) although there is a different New Jersey state court standard for proof of sex discrimination, the record fails to demonstrate a prima facie case of actionable, gender-based conduct under the test of Lehmann v. Toys ‘R’ Us Inc., 132 N.J. 587 (1993). PUBLIC EMPLOYEES 33-2-5966 Ocean Twp. Superior Officers Ass’n v. Twp. of Ocean, App. Div. (4 pp.) Co-pay health benefits provision, requiring employees to pay 50 percent of the increased health benefit for dependents, is mandatorily negotiable, and Public Employment Relations Commission’s declaration that the disputed provision was not illegally placed in a collective bargaining agreement is affirmed. TORTS 36-2-5967 Tina Ellis, et al. v. Newark Bd. of Educ., et al., App. Div. (4 pp.) In a case where plaintiff was assaulted in schoolyard and sued the board of education for negligent supervision by security guard, since plaintiff failed to show that the security guard knew of the impending attack or could have done anything to prevent it, plaintiff’s case was properly dismissed. WORKERS’ COMPENSATION 39-2-5968 Frank Livolsi v. Harrah’s Casino, App. Div. (4 pp.) Limousine driver, who was employed by casino to transport high-rollers to casino, and who, with another driver, was waiting for dispatch at a highway rest stop, was not on a “special mission,” and, therefore, was not in the course of his employment when he was injured in an accident in which he was a passenger in his co-worker’s limousine as they left the rest stop to get some pizza, and benefits were properly denied. 39-2-5969 Joseph Vaccarelle v. Exxon Co., U.S.A., et al., App. Div. (4 pp.) Final judgment awarding petitioner total permanent disability benefits as a result of non-Hodgkin s lymphoma found to be causally related to his employment at defendant is affirmed, since the judge s decision that petitioner’s exposure to dust, fumes and chemicals during the course of his employment caused his disease reasonably could have been reached on sufficient credible evidence present in the record. 39-2-5970 Marco Figueredo v. Riverside Metals Corp., et al., App. Div. (9 pp.) Although there was testimony presented indicating that petitioner’s prior work experience may have involved injurious workplace exposure, there was no evidence submitted that would indicate any “manifestation or understanding” that the petitioner was suffering from a pulmonary disability until well into the period of employment with the respondent employer, and, therefore, the judge’s decision placing liability on the respondent as the last employer (under the rule of Bond v. Rose Ribbon), is affirmed, but since the record contains no basis for the judge to have calculated a 15 percent credit due to petitioner’s cigarette smoking, that portion of the judgment is reversed. CRIMINAL LAW AND PROCEDURE 14-2-5971 State v. Robert Louis Brown, App. Div. (5 pp.) Although trooper was justified in making an investigatory vehicle stop for a suspected DWI violation (since vehicle was drifting from its lane of travel), trooper could not reasonably have inferred that the driver was armed and dangerous because he assumed a sideward stance as he walked to the rear of the vehicle, and, therefore, a pat-down search of the driver was improper and the cocaine found during the search should have been suppressed. 14-2-5972 State v. Hector Jones, App. Div. (13 pp.) The state’s conceded violation of defendant’s previously-asserted right to remain silent barred any future use of the defendant’s statement, and the trial judge erred in allowing the use of the statement to impeach defendant s credibility at trial. OPINION APPROVED FOR PUBLICATION: 08-2-5034 Ideal Dairy Farms Inc. v. Farmland Dairy Farms Inc., et al. (Feb. 27, 1995). [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES LABOR AND EMPLOYMENT — DISCRIMINATION 25-7-5973 Marc Liebeskind v. Wilson, Elser, et al., U.S. Dist. Ct. (8 pp.) In an employment discrimination case: (1) plaintiff’s motion for reconsideration of the court’s denial of a stay pending resolution of plaintiff s workers’ compensation claim is denied, since the workers’ compensation court must resolve issues of benefits and disability, while the federal court must examine different issues regarding any underlying discrimination with respect to plaintiff’s employment and, in addition, plaintiff has not shown that the court overlooked any question of fact or issue of law with respect to the original determination; (2) plaintiff’s motion for reconsideration of the denial of his appeal from a scheduling order (entered in his absence when the post office misdirected the notice) also is denied, since the magistrate’s decision to enter the scheduling order was not clearly erroneous or contrary to law, even in plaintiff’s absence, and, since a scheduling order is procedural, it may be amended at any time for good cause shown; (3) plaintiff’s motion for reconsideration of the denial of his appeal from the entry of a protective order is denied since the magistrate had the discretion to enter such an order on the facts before him, and plaintiff has introduced no evidence to show that any law or fact was overlooked; and (4) since plaintiff has provided no persuasive reason why either the magistrate or the federal judge should recuse himself, the recusal motion is denied. (See related discussion of this case in Alert

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