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Vol. 3 No. 56 DECISIONS RELEASED MARCH 24, 1995 CORRECTIONS 13-2-5248 Sundiata Lumumba v. Willis E. Morton, App. Div. (6 pp.) Decision to prohibit inmate from wearing African ethnic clothing was not arbitrary or capricious and was based on a consistently applied policy, made clear in the prison handbook, restricting inmates from wearing symbols or indicia of any group membership. [Available online in N.J. Full-Text Decisions.] ENVIRONMENT 17-2-5249 N.J. Dept. of Environmental Protection and Energy v. Occidental Chemical Corp., App. Div. (7 pp.) DEPE’s finding that chemical company had failed to “immediately” notify it of an air contamination (as required by statute), when company released a highly toxic chemical and took 28 minutes to report it, was not arbitrary or capricious and is affirmed, but the penalty is vacated and the case remanded for a redetermination of the amount. 17-2-5250 Curtis T. Bedwell and Sons, Inc. v. Geppert Brothers, Inc., et al., App. Div. (11 pp.) Summary judgment requiring subcontractor to indemnify waste facility contractor affirmed since (1) CERCLA does not prohibit enforcement of indemnification agreements between private parties for the risk of environmental harm and (2) a party, whose liability under CERCLA is passive or constructive only, is entitled to indemnification under an agreement limiting the indemnitor’s obligation to losses resulting from its own acts. [Available online in N.J. Full-Text Decisions.] INSURANCE 23-2-5251 Kenneth Arents, et al. v. General Accident Ins. Co., et al., App. Div. (9 pp.) Where grown son kept a wardrobe and personal belongings at his elderly parents’ home in N.J., where he stayed two or three nights a week, and registered and garaged his car there, the fact that he worked and maintained a dual residence in New York City, where he stayed four or five nights a week, did not create an exclusive New York residence and the trial judge correctly found that the insured and his father were members of the same household, declaring son”s underinsured motorist coverage available to the father. [Available online in N.J. Full-Text Decisions.] INSURANCE – VERBAL THRESHOLD 23-2-5252 Cheryl Norton Stone v. Earl Conte, Jr., App. Div. (5 pp.) There was sufficient evidence to surmount defendants’ motion for summary judgment in this verbal threshold case where plaintiff s doctor s reports noted spasm six months after the accident and continuing over one year after the accident, which spasms were related to the accident and deemed to be part of a significant and permanent injury. REAL ESTATE – BROKERS 34-2-5253 Katharine Lai v. Michael Bende, et al., App. Div. (8 pp.) Although prospective buyers had acknowledged broker’s exclusive listing of commercial property in writing, this did not amount to a contract and thus buyers’ direct purchase of property from seller, on notice to broker, was not breach of contract or tortious interference. TAXATION 35-2-5254 Nat l. Westminster Bank, NJ v. City of Jersey City, App. Div. (4 pp.) Tax Court should not have dismissed bank’s appeal for failing to supply its appraisal to city within 10 days of trial, since bank “substantially complied” with service requirement (although three days late) and there was no demonstrated prejudice to the city. 35-2-5255 New York Life Ins. Co. v. Lyndhurst Twp., App. Div. (5 pp.) The Tax Court judge correctly rejected the arguments of both the taxpayer and the municipality regarding the definition of the period and the rate at which interest on a belated refund would be imposed, and held that N.J.S.A. 54:3-27.2 is the sole source of authority for the imposition of interest in a tax refund case and that interest on a local property tax refund is to be paid from the date of payment to the date of refund at 5% per annum. TORTS 36-2-5256 Michael S. Barth v. Michael J. Zimmer, App. Div. (4 pp.) Complaint of plaintiff who committed plagiarism on a final law school exam, received a failing grade and was suspended from law school (although given probation) — alleging defamation, breach of contract, malicious interference with contractual relations and various constitutional violations — was properly dismissed because any statements made by the assistant dean were protected by qualified privilege and student utterly failed to prove the elements of his other allegations. CRIMINAL LAW AND PROCEDURE 14-2-5257 State of New Jersey v. Jorge Montalvo, et al., App. Div. (13 pp.) Although the motion judge found that the police officer had probable cause to search defendant s car, his ruling that the officer had no authority or jurisdiction to conduct the search in an adjoining municipality (and his granting on that basis of motion to suppress) was incorrect since no actual ordinance is necessary to implement a “mutual aid policy” long shared by two neighboring municipal police forces. [Available online in N.J. Full-Text Decisions.] OPINIONS APPROVED FOR PUBLICATION: 21-2-2620 Joseph B. Decker v. Bally’s Grand Hotel Casino, et al. (Feb. 15, 1994) [Available online in N.J. Full-Text Decisions.]; 34-2-5042 Stanley Szymczak, et al. v. Anthony LaFerrara, et al. (Feb. 27, 1995). -

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