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Vol. 3 No. 103 – JUNE 2, 1995 STATE COURT CASES ARBITRATION 03-2-5757 Laura E. Morrow v. Merchants Mut. Ins. Co., App. Div. (4 pp.) In considering plaintiff’s application for prejudgment interest, the motion judge erred when he specifically refused to consider defendant’s contentions that the arbitration had been delayed due to plaintiff’s unwillingness to participate in pre-arbitration discovery, and the component of the arbitration decision awarding such interest is vacated and remanded. ENVIRONMENT 17-2-5758 Willow River Partnership v. WW Engineering & Science, App. Div. (5 pp.) Since the landlord and its tenants are strictly liable for property cleanup under the Environmental Cleanup Responsibility Act and would have been responsible for the cost of such cleanup regardless of whether a defendant consultant was negligent in its preparation of DEP submissions, plaintiff has not shown that it suffered damages from any activity of the defendant and summary judgment in favor of the defendant was proper. EVIDENCE 19-2-5759 Domenica Pepin, et al. v. Richard A. Shine, Jr., App. Div. (5 pp.) There was no abuse of discretion in the trial judge’s determination that plaintiff, who has Down’s Syndrome, was competent to testify in her personal injury action, since he concluded that plaintiff understood the duty to tell the truth in her own childish way, understood the oath, could communicate and could recollect the incident. FAMILY LAW 20-2-5760 Patricia Rosenberg v. William Rosenberg, App. Div. (8 pp.) Where the judge, in an equitable distribution decision, did not order defendant to sell any of his assets to fund such distribution, and there was no persuasive evidence that defendant would be required to liquidate any assets, the judge did not err in failing to consider the potential, hypothetical tax consequences to defendant if he were forced to sell such assets. GOVERNMENT 21-2-5761 Dept. of Community Affairs, Local Finance Bd. v. William G. Cook, App. Div. (6 pp.) Because of the managerial and supervisory responsibilities they fulfill, members of the board of trustees of a municipal public library qualify as “government officers” under the Local Government Ethics Law, and must file annual financial disclosure statements with the local finance board. [Approved for publication June 2, 1995.] INSURANCE — VERBAL THRESHOLD 23-2-5762 Laverne Joiner-Clark, et al. v. Michelle Decutis, App. Div. (12 pp.) Summary judgment in favor of the defense was improper since, although the evidence of plaintiff’s injury may be weak or subject to serious credibility issues, the court cannot reject the certifications submitted as uncredible and reject the thrust of the medical reports, because whether these injuries are serious enough to sustain plaintiff’s action is a jury question. JUDICIARY — ETHICS 48-1-5763 In the Matter of Lawrence A. Carton, III, a Judge of Old Bridge Municipal Ct., Supreme Ct. (22 pp.) The judge committed violations of Canons 1, 2 and 3 of the Code of Judicial Conduct when he permitted a fax to be sent from his law office to the judge of another municipal court about another matter pending in that court, and as a result is publicly reprimanded. LABOR AND EMPLOYMENT 25-2-5764 Lauriano S. Paulo v. Bd. of Review, App. Div. (7 pp.) The severance pay collected by employee during the benefit year on his prior unemployment claim did not constitute “requalifying work and wages” entitling him to benefits in a successive benefit year, but there is patent unfairness in requiring repayment since the employee acted in good faith and changed his financial position based upon the state’s advice and payments, only to be told one year later that the payments must be refunded at a time when he cannot receive other benefits; therefore the matter is remanded to determine whether employee was prejudiced by the board’s action, and the extent of the other benefits that he may have lost as a result. 25-2-5765 Anna Hunt and James Kinneally v. Sovereign Bank, App.Div. (5 pp.) The trial judge erred in engrafting the bank’s vacation policy onto the merger-related severance pay agreement under which terminated employees received 52 weeks of severance pay, and the judgment awarding such vacation pay is reversed. PARENT/CHILD 28-2-5766 Adele Mancini, n/k/a Adele Rescigno v. George Limberes, App. Div. (6 pp.) While the judge does have the discretion to assess a substantial portion of the fees for a guardian ad litem against the intervenor/stepfather, the intervenor/stepfather was entitled to a hearing regarding the allocation and reasonableness of those fees, and the matter is remanded. PUBLIC EMPLOYEES 33-2-5767 Anthony Mardarello v. Bd. of Trustees of the State Police Retirement System, App. Div. (9 pp.) The board correctly determined that plaintiff’s service of two years and 11 months as a municipal police officer could not be counted as part of the 25-year “creditable service” requirement under the special State Police Retirement Program. TAXATION 35-2-5768 Laurel Run Assoc. v. Bordentown Twp.; Clearview Gardens Assoc. v. Parsippany-Troy Hills Twp., App. Div. (8 pp.) Since landowners/landlords have never paid a tenant property tax rebate and future tax rates are unknown, their claims that their property values should be reduced for assessment purposes because of the impact of the Tenant Property Tax Rebate Act have no merit and the Tax Court judgments are affirmed. TORTS — FALSE ARREST — MALICIOUS PROSECUTION 36-2-5769 Bruce Kevin Martin v. Andre Norwood, et al., App. Div. (6 pp.) Since the defendant, a grocery store security officer, saw plaintiff/shopper put a cigarettes packet in his pocket, defendant had probable cause to believe that plaintiff was shoplifting, and the charge of false arrest was properly dismissed, but because the plaintiff testified that he produced receipts to show he had paid for the cigarettes, it at least raised a factual issue as to whether the prosecution of plaintiff was malicious, and summary judgment dismissing that charge is reversed. WORKERS’ COMPENSATION 39-2-5770 Joseph Modeshefsky v. Bayonne Fire Dept., et al., App. Div. (4 pp.) Since the Second Injury Fund statute says that a totally disabled person is not entitled to receive fund compensation if the disability resulting from the injury caused by the person’s last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability, the compensation judge erred when he allocated five percent of petitioner’s award against the fund, since the petitioner’s pulmonary conditions should have been assessed 100 percent against his employer. CRIMINAL LAW AND PROCEDURE 14-2-5771 State v. Clara Sloan, App. Div. (9 pp.) The trial judge committed several errors requiring reversal: (1) the instruction on accomplice liability was flawed because it did not apprise the jury of its option to find an accomplice guilty of a different offense or degree of offense; (2) the instruction on intoxication was erroneous because it placed the burden of producing evidence of that defense on the accused; (3) the judge failed to make an assessment of Violent Crimes Compensation Board penalties; and (4) the judge erred by FEDERAL COURT CASES CONTRACTS — REMOVAL AND REMAND 11-7-5773 Gen. Pneumatics Corp. v. Hoover Indus., Inc., U.S. Dist. Ct. (11 pp.) Since removal from state to federal court must be made within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim upon which the action is based (emphasis supplied in opinion), and recitation of the facts surrounding such receipt is an essential part of the notice of removal, defendants’ notice was fatally defective since it only alleged the date of service of the complaint, and did not provide sufficient information to allow a determination of whether the removal was timely; therefore the matter is remanded to state court. JURISDICTION – PERJURY – CIVIL RIGHTS – BANKRUPTCY 24-7-5774 Esmat Zaklama, et al. v. Larry Joseph Gannon, et al., U.S. Dist. Ct. (5 pp.) (1) Although plaintiffs’jurisdictional averments ran afoul of 28 U.S.C. 1332, which requires complete party diversity, since plaintiffs and one of the defendants are New Jersey residents, plaintiffs’ motion to voluntarily dismiss the nondiverse defendant will serve to establish jurisdictional integrity and is granted. (2) Under New Jersey law, perjury is strictly a criminal offense and does not give rise to a private cause of action, so defendants’ motion to dismiss that count of the complaint is granted. (3) Since there is nothing in the complaint, even when it is liberally construed, that indicates that defendants in any way acted under the color of state law, their motion to dismiss the counts containing 42 U.S.C. 1983 civil rights claims are granted. (4) The parties must provide supplemental briefs on the question of whether a private cause of action may be maintained in federal district court when the allegation concerns fraudulent conduct allegedly perpetrated upon the U.S. Bankruptcy Court. A

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