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Vol. 3 No. 113 DECISIONS RELEASED JUNE 16, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-1-5902 In the Matter of Walter L. Roth, Jr., Esq., Supreme Ct. (34 pp.) Attorney’s defenses of shoddy bookkeeping, depression and forgetfulness do not excuse the multiple invasions of clients’ trust-account funds, regardless of his motives, and he is disbarred for the knowing misappropriation of clients’ funds. [Available online in N.J. Full-Text Decisions.] 04-2-5903 Stewart Title & Guaranty Co., subrogee v. Michael F. Sassano, et al., App. Div. (3 pp.) Where attorney sought, but did not receive, a written confirmation of oral agreement (unenforceable under the statute of frauds) from first mortgagee that it would subordinate its mortgage to that of second mortgagee, and nevertheless allowed the second mortgage to close without indicating to second mortgagee or title company that his title certification was conditional, jury verdict against attorney was proper. CIVIL PROCEDURE 07-2-5904 Jacqueline Eisenberg, et al. v. Howard Blank, App. Div. (6 pp.) Involuntary dismissal of plaintiff’s automobile negligence case for failure to cause a summons to issue within 10 days was a mistaken exercise of the judge’s discretion since plaintiffs, after attempting mail service (which they mistakenly believed to be effective) entered into extensive negotiations with defendant’s insurer, and no prejudice could be shown to the defense since the defendant and his insurer both were aware of the case. INSURANCE — LOADING & UNLOADING 23-2-5905 Helen Mancini, et al. v. Gary Acquaro, et al., App. Div. (13 pp.) Where environmental company, employed to transport chemical company’s hazardous waste, sent four of its employees to the chemical company to pack the waste for transport and, during transport, a fire broke out in the truck (due to improper packing of the chemicals), causing injuries to third parties, the judge erred in holding that the truck’s insurer did not owe coverage to the environmental company as an additional insured since the packing was a part of the “loading” of the vehicle, and, therefore, any negligence in the packing was covered. LABOR AND EMPLOYMENT 25-2-5906 Sonji J. Davis v. Bd. of Review, App. Div. (4 pp.) Where employee was initially granted unemployment benefits by a deputy’s determination, and, although the employer filed a timely appeal, the hearing was not held for one and one-half years — at which time employee was found not qualified for benefits — fundamental fairness requires that the order that employee refund more than $16,000 in benefits she received during the time period must be revisited on remand (although the denial of her appeal on the merits is affirmed since appeal was not timely filed). NEGLIGENCE — RES IPSA LOQUITUR 31-2-5907 Jorge Martinez, et al. v. Giant Int’l. Trucks, Inc., et al., App. Div. (10 pp.) The judge was correct in granting an involuntary dismissal of the plaintiff’s case, for injuries sustained when the truck he was driving malfunctioned, against the defendant, which repaired the vehicle, because the plaintiff — proceeding without an expert on a res ipsa loquitur theory — did not meet his burden of proving a causal link between the defendant’s conduct and the accident, since the truck’s problems noted on the day of the accident were different than the complaint that prompted the repairs. PARENT/CHILD 28-2-5908 In the Matter of the Guardianship of R.G.F., P.W.W. and K.R.W., App. Div. (17 pp.) Where three children were badly neglected and did not have a stable and secure environment prior to foster care, and where mother was given reasonable assistance while the children were in foster care to overcome her own serious deficiencies and offer hope of providing a secure environment for her children, but was unable to do so after three years, her parental rights were properly terminated. REAL PROPERTY — ABATEMENT 34-2-5909 Camille Caggiano v. 1266 Apt. Corp., App. Div. (4 pp.) Where the judge ruled (in penthouse co-op owner s suit for abatement of maintenance fees due to water-leakage problems) that proofs would be limited to July 1, 1992, and forward, and jury verdict awarded abatement for years prior to 1992, denial of defendant’s motion for a new trial is reversed. REAL PROPERTY — ADVERSE POSSESSION 34-2-5910 Charlesworth Ralph, et al. v. George T. Naughton, Jr., App. Div. (6 pp.) Since adverse possessors of property have the option of proceeding under the 20-year limitations statute (N.J.S.A. 2A:14-7) or, providing the requirements are met, the 30-year statute (N.J.S.A. 2A:14-30), plaintiffs have complete title to the property in question since defendant, failing for more than 20 years to assert his right of possession against those who adversely possessed the property in which he owned one-half interest, is now barred from asserting such right. REAL PROPERTY — BROKERS’ COMMISSIONS 34-2-5911 John Teixeira, et al. v. Walter Olszewski, et al., App. Div. (7 pp.) Where commission-agreement amendment clearly stated that broker would be entitled to a reduced two percent commission if a sale contract was entered into within 90 days after the end of the listing agreement, but where no contract was entered into during that period because buyers could not obtain financing, the fact that the same buyers later entered into a contract with the seller does not vest broker with the right to a commission since there was a substantial break in the negotiations. WORKERS’ COMPENSATION 39-2-5912 Barbara A. Brandt-Shaw v. Sands Hotel and Casino, App. Div. (5 pp.) Where petitioner initially had alleged both back and leg injuries, despite the fact that she received an award only for her leg, she is not barred from pursuing a subsequent reopener claim for aggravation of the back injury, and the judge erred in dismissing her reopener application. [Approved for publication June 16, 1995.] [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES BANKRUPTCY 42-8-5913 In re: Visual Industries, Inc., et al., Third Cir. (12 pp.) Section 506(c) of the Bankruptcy Code, which provides that a secured creditor may be charged for expenses incurred by another in preserving or disposing of the secured property, does not extend to permitting payments to a trade creditor who furnishes raw materials to a Chapter 11 debtor (thereby maintaining the debtor’s operation) where the materials supplied do not directly benefit the secured creditor’s property. BANKRUPTCY — LANDLORD/TENANT 42-6-5914 In re: Slim Life Weight Loss Centers, Corp., et al., U.S. Bankruptcy Ct. (13 pp.) Where tenant in default abandoned property before lease had expired, and landlord repossessed premises to try to re-rent them, it did not amount to a consent to the surrender of the premises and the lease remained in effect at the time the Chapter 11 case was filed and, since Section 365(d)(3) mandates the payment of administrative rents in accordance with the unexpired lease terms, without regard to possession by the debtor, the landlord’s motion for such administrative rents is granted. [Approved for publication.] LABOR AND EMPLOYMENT — EDUCATION — CONSTITUTIONAL LAW 25-7-5915 Robert Harrington v. Cheryl Lauer, U.S. Dist. Ct. (12 pp.) Where newly-elected school board voted to relieve plaintiff of his duties as superintendent but honored the financial obligations of his unexpired contract: (1) plaintiff’s claim that his termination constitutes a deprivation of property without due process in violation of the Fifth and Fourteenth Amendments fails because he does not allege any federal government action, (2) although plaintiff had a property interest in the continued expectation of public employment, this interest afforded plaintiff the right to be fully compensated, not to physically possess the job in defiance of the employer’s wishes, so plaintiff’s Section 1983 claim under the Fourteenth Amendment also fails, but (3) plaintiff has set forth a cause of action (although improperly expressed) that defendants conspired to deprive plaintiff of his privileges under the law under Section 1985, and, therefore, summary judgment cannot be granted in favor of the defendants on the charges of intentional conspiratorial conduct under color of state law. [Approved for publication.] CRIMINAL LAW AND PROCEDURE 14-7-5916 Hypolitus Nwachia v. United States of America, U.S. Dist. Ct. (30 pp.) (1) The submission of an affidavit, signed by petitioner’s counsel, but later disavowed, that corroborates petitioner’s assertion that a promise by the U.S. to drop charges against petitioner’s girlfriend was the basis upon which he agreed to plead guilty, does not create “extraordinary circumstances” sufficient to warrant an evidentiary hearing on whether counsel’s failure to seek to withdraw the plea due to the breach of the alleged promise constituted ineffective assistance of counsel, especially since petitioner has offered no explanation for his silence as to the purported agreement at the plea colloquy and when he signed the agreement. (2) Since the petitioner was properly informed (and stated that he understood) at the time he entered his plea that the court could not predict his sentence until the presentence report was received, and, when this report recommended that petitioner be sentenced as a career offender and petitioner did not object to this classification, but argued instead for a downward sentence in light of his drug addiction, counsel’s failure to inform petitioner prior to the plea of the likelihood that he would be sentenced as a career offender was not ineffective assistance of counsel. [Approved for publication.] A

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