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Vol. 3 No. 108 – JUNE 9, 1995 STATE COURT CASES ADMINISTRATIVE LAW — CORRECTIONS OFFICERS 01-2-5823 Sylmer Rainey, III v. Union County Dept. of Public Safety, App. Div. (10 pp.) Where a corrections officer failed to properly secure his weapon while off-duty, used unauthorized ammunition in the weapon, and failed to report his absence to the prison before his shift started, the Merit System Board had the discretion to reject the recommendation of the Administrative Law Judge that the officer be suspended, and order, instead, that he be removed from his employment as a corrections officer, due to the seriousness of the charges against him. ATTORNEY/CLIENT 04-1-5824 In the Matter of Lee W. Shelly, Esq., Supreme Ct. (25 pp.) Based on the unique circumstances and informality that characterized the attorney’s nine years of financial dealings with his client (including taking his fees from accounts receivable he collected for the client), the record does not show clearly and convincingly that the attorney knowingly misappropriated $40,000 from closing proceeds of the sale of client’s home (which he characterized as a loan), but he is suspended for six months for recordkeeping violations and conflict of interest in failing to advise the client to seek independent counsel prior to entering into the loan transaction. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE — DEFAULTS 07-2-5825 Edward Salter v. Dana A. Johnson, App. Div. (5 pp.) Because pro se defendant did not submit the filing fee required by R.1:5-6(c) with his answer, the clerk properly refused to accept it for filing, and the default judgment proceedings were not procedurally defective; the motion judge erred in vacating the default without ordering defendant to comply with the R.4:50-1 provisions. CIVIL PROCEDURE — FRIVOLOUS LITIGATION — FEES 07-2-5826 Sam Khoudary v. Salem County Bd. of Social Svcs., App. Div. (9 pp.) In a frivolous litigation claim, the trial court’s denial of about 60 percent of well-documented charges for defendant’s legal fees, with no findings that the fees were inflated or unreasonable, was arbitrary, unreasonable and an abuse of discretion. [Approved for publication June 9, 1995.] [Available online in N.J. Full-Text Decisions.] 07-2-5827 Fred Rasiewicz, et al. v. Michael Biddelman, et al., App. Div. (16 pp.) Where, in a case alleging breach of contract against buyer of dry-cleaning business, the trial judge found the business seller’s testimony totally undeserving of credit and rescinded the sales contract because of seller’s fraudulent inducements, defendant was entitled to fees under the frivolous claims statute, and the fact that the judge did not make findings related to that statute is immaterial since the judge’s comprehensive opinion contained sufficient findings regarding seller’s bad-faith conduct, and additional findings would have been redundant. FAMILY LAW 20-2-5828 Sandra M. Gambal v. John F. Gambal, App. Div. (6 pp.) Where the explicit terms of a property settlement agreement state that father’s obligation to pay for the costs of daughter’s education terminated when she reached age 25, and it is undisputed that she did not start her graduate program until after she reached that age only because of her uncertainty about a career path, and not due to some compelling reason that would make it inequitable to “cut-off the father’s support, the trial court erred in holding that father had an obligation to reimburse mother for graduate school costs. GOVERNMENT — GAMBLING CONTESTS 21-2-5829 Unit 85 Essay Contest, Inc., et al. v. Deborah T. Poritz, Atty. Gen’l., et al., App. Div. (7 pp.) Where condominium owners, who were having difficulty selling their unit, attempted to hold an essay contest for a fee in which the prize would be the condominium, the chancery judge correctly dismissed their declaratory judgment action seeking to validate such contest, since the essay contest clearly meets the statutory definition of gambling in N.J.S.A. 2C:37-1(b). INSURANCE — VERBAL THRESHOLD 23-2-5830 Paula Amoroso Demers, et al. v. Frank A. Snyder, App. Div. (11 pp.) Despite a curative instruction, defense counsel’s continued commentary to the jury–to the effect that plaintiff had elected a cheaper insurance rate and thereby gave up her right to sue–had a clear capacity to unfairly affect the outcome of the case, causing the jurors to focus on the high costs of their own insurance and the economic motive of the plaintiff’s “trade-off, rather than on whether plaintiff’s injuries met the verbal threshold; trial court is reversed, and case is remanded. [Approved for publication June 9, 1995.] [Available online in N.J. Full-Text Decisions.] MUNICIPAL LAW 30-2-5831 Alpha-Omega Amusements, Inc. v. City of New Brunswick, App. Div. (5 pp.) Where section of an ordinance requiring payment of a $100 license fee for each additional coin-operated amusement machine after payment of $125 for the first machine was declared null and void by the court on the complaint of a distributor of such machines, and municipality then reduced fee for additional machines to $20 each but nothing was done by first distributor to adjudicate retroactive refunds of illegally collected fees, there was nothing to prevent plaintiff distributor from instituting a refund action, and summary judgment in its favor is affirmed. NEGLIGENCE — CAUSATION 31-2-5832 Norma Jean George v. Edward J. Ulikowski, et al., App. Div. (8 pp.) Since the trial judge misled the jury in his charge on proximate causation, and since he erred in not allowing the jury to consider whether plaintiff had injured her back in another accident the day before the subject accident, a new trial is mandated on remand. NEGLIGENCE — DRAM SHOP 31-2-5833 Dean Maglione v. Poor Billy’s, et al., App. Div. (8 pp.) Where intoxicated patron deliberately threw a bottle at another patron, injuring him: (1) The trial judge did not err in refusing to include the presumption of lack of capacity in his charge, since there was no assessment of risk or rational decision-making undertaken in this situation and, even if the concept had been charged, it would have had no applicability on these facts. (2) The jury did not err in finding no basis to impose a greater percentage of liability on the tavern on the theory of failing to provide reasonably safe premises, rather than negligence, since there is only so much a tavern can do to protect a patron from the sudden, intentional, criminal conduct of a co-patron. PRODUCT LIABILITY 32-2-5834 Kirby Johnson v. Woodbury Devices, Inc., et al., App. Div. (5 pp.) Where, more than three years after an accident, more than two years after plaintiff’s expert examined the allegedly defective machine on which plaintiff was injured, and more than 14 months after the statute of limitations had run, plaintiff served an amended complaint upon machine manufacturer, the court correctly granted manufacturer’s motion to dismiss based upon the expiration of the statute of limitations, holding that plaintiff could have ascertained earlier the manufacturer’s identity since the machine was stamped at all times with the manufacturer’s name, had stickers and signs on it provided to the employer by the manufacturer, and the employer had literature from the manufacturer about the machine on file. TAXATION 35-5-5835 Sal La Greca, Executor v. Director, N.J. Div. of Taxation, Tax Ct. (11 pp.) Since accuracy in valuing the life estates in this estate matter–and, correspondingly, the remainder interests to be valued for inheritance tax purposes–requires the most recent mortality tables available on the valuation date, use of tables in PHS 85-1150-1 and IRS Publication 1457, derived from U.S. Decennial Life Tables for 1979-81, should be applied to this case, which will result in a valuation between that proposed by plaintiff and defendant. [Decided Jan.10, 1995; Approved for publication May 15, 1995.] FEDERAL COURT CASES EDUCATION — CHILDREN WITH DISABILITIES — COSTS 16-7-5836 C.M. and R.M., ind. and on behalf of their minor child, B.M. v. Bd. of Ed. of Union Cy. Regional High School District, U.S. Dist. Ct. (21 pp.) In a case where parents of a special education student move for costs and fees associated with their challenge of their child’s individualized education program: (1) The record does not support board’s argument that parents protracted the proceedings or that parents were unjustified in not accepting board’s settlement offer, so board’s summary judgment motion is denied. (2) Since the parents “succeeded entirely in their major areas of concern” (such as high school-to-college transition skills, math, social and writing skills), and “achieved a substantial amount of relief in other minor areas of concern,” they are “prevailing parties in the litigation and summary judgment is entered in their favor. FAMILY LAW — ERISA — REMOVAL AND REMAND 20-7-5837 Henry G. Groh v. Theresa P. Groh, U.S. Dist. Ct. (11 pp.) In a case where husband died in the middle of state court divorce proceedings, and an issue arose as to wife’s subsequent receipt of ERISA pension benefits, while the federal court may have subject matter jurisdiction to address the ERISA issue, the Superior Court has concurrent jurisdiction, and since the wife filed for removal well after she became aware that a federal issue may have been involved, her removal was untimely; therefore, for both reasons, the matter is remanded to state court. [Original filed May 10, 1995; Approved for publication.] NEGLIGENCE — TORTS — PUBLIC EMPLOYEES (STATE POLICE) 31-7-5838 Sergei Yu Aleshinsky, et al. v. State, Div. of State Police, et al., U.S. Dist. Ct. (10 pp.) In a case where there was an alleged altercation between state police officers and citizens involved in motor vehicle incident, as a result of which negligence and tort actions were filed by the citizens: (1) Since the Eleventh Amendment bars a 42 U.S.C. 1983 suit for damages against the state or a state agency, the claim against the state and state police are dismissed. (2) Since a supervisor may be held liable for the violations of a subordinate if the supervisor was the “moving force behind the violation, and, since the supervisor has not submitted any evidence to oppose plaintiffs’ allegations, the plaintiffs’ claims against the supervisor are sufficient, as a matter of notice pleading, to assert a cause of action against the supervisor. (3) Since the Eleventh Amendment bars damage actions against state officials who are acting in their official capacity, the claims against the individual troopers in their official capacity are dismissed. (4) Since no bar exists to plaintiffs’ claims against the individual troopers acting in their individual capacity, these claims may proceed.

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