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Vol. 3 No. 226 Decisions Released Nov. 30, 1995 STATE COURT CASES CORRECTIONS 13-2-7173 Willie Brown v. James Barbo, et al., App. Div. (3 pp.) The court affirms the final agency decision of the state Department of Corrections — finding inmate guilty of prison disciplinary charges arising out of an alleged assault on a guard — since there is sufficient, substantial credible evidence to support the determination. ENVIRONMENT 17-2-7174 Bergen County Dept. of Health Svcs. v. BJF Sanitation Inc., App. Div. (15 pp.) Those portions of judgment imposing civil penalties on sanitation company for constructing and operating an unregistered solid waste facility are reversed, since the applicable administrative code provisions are designed to govern an the operation of a facility run by the violator and do not apply to the company’s act of a single illegal dumping on the subject site, however, the remaining portions of the judgment awarding penalties for other Solid Waste Management Act violations are affirmed. FAMILY LAW 20-2-7175 T.U. v. B.U., App. Div. (5 pp.) Judge’s order, requiring father who physically assaulted his children to return custody of his two boys to their mother, and suspending father’s visitation for a period of time, after which it shall be resumed on a limited basis with DYFS supervision, was reasonable under the facts of the case and is affirmed. 20-2-7176 Ana F. Robertson v. Gordon L. Robertson, App. Div. (5 pp.) In ordering husband to pay certain amounts for alimony and support, the trial judge correctly concluded that wife was not bound by the terms of a purported consent order entered earlier in the matter, since the wife had never agreed to its terms, and her daughter had no authority to agree to it on her behalf. HEALTH — NURSES 22-2-7177 In re: Beverly Badini, R.N., Ed.D., App. Div. (5 pp.) Final decision of the State Board of Nursing — that nurse lacked the necessary credentials to serve as a teacher or consultant in licensed practical nurse program — is reversed, since she did not receive due process from the oard when it considered her case, and the notice of the hearing was too short and was insufficient to inform her of the nature of the proceeding so that she could best determine how to protect her interests. INSURANCE 23-2-7178 John Planker v. Liberty Mut. Ins. Co., App. Div. (7 pp.) The court reverses an order granting summary judgment to insurer — on insured’s complaint seeking to vacate a fire loss settlement — since there clearly was a material factual issue of mutual mistake. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7179 Debbie J. Pagillo v. Bd. of Review, App. Div. (3 pp.) Worker was properly declared ineligible for unemployment compensation benefits where the Board of Review found that she left work due to her dissatisfaction with her employer’s timekeeping and failure to correctly submit her wage record, and such reasons constituted a voluntary quit. REAL ESTATE 34-2-7180 Charles H. Scruggs Jr. v. Jack Newmark, App. Div. (5 pp.) Since the doctrine of caveat emptor with respect to New Jersey real estate has been abandoned as an outmoded concept, contract language providing that seller’s representations did not survive closing do not insulate the seller from liability for intentionally and knowingly concealing a water penetration condition, and buyer was properly awarded judgment against seller for damages, as well as for the cost of the sump pump system to rectify the problem. WORKERS’ COMPENSATION 39-2-7181 Henry R. Shaudys v. IMO Indus. Inc., App. Div. (13 pp.) The compensation judge properly found that petitioner’s injury was caused by twisting his knee as he stepped out of his car in the employer’s parking lot to walk toward his workplace and, because petitioner’s injury was caused by doing something essential to his employment, and beneficial to his employer, i.e. going to work, his injury was properly held to have “arisen out of his employment” and was compensable. [Approved for publication Nov. 30, 1995.] FEDERAL COURT CASES BANKING 06-7-7182 Federal Deposit Ins. Corp., Receiver, etc. v. George Garidis, et al., U.S. Dist. Ct. (10 pp.) Where note guarantors filed a counterclaim to bank’s collection suit — alleging that one of two guaranty signatures was forged, and that the guaranties were therefore unenforceable because two signatures were required — bank’s motion to dismiss counterclaim is granted, since no such condition appears on the face of the guaranties and there is no evidence that letters purporting to add this condition were approved by the bank. BANKRUPTCY 42-6-7183 In re: Lester A. Kaczynski, et al., Debtors; State of N.J. v. Lester A. Kaczynski, et al., U.S. Bankruptcy Ct. (14 pp.) The court finds that New Jersey lottery sales agents — such as the debtors — act in a fiduciary capacity within the meaning of Code Section 523(a)(4), and, therefore, when debtors failed to remit tickets and proceeds to the lottery commission, and failed to explain what became of the funds and tickets, it constituted a defalcation within the meaning of Section 523(a)(4), and the debt owed to the commission is rendered nondischargeable. CIVIL RIGHTS 46-8-7184 Arnold Orsatti Jr., et al. v. N.J. State Police, et al., Third Cir. (20 pp.) Under the facts of this case, since no rational jury could find that police officers were objectively unreasonable in concluding that they had probable cause to believe that plaintiff Orsatti’s conduct constituted the crime of official misconduct, the officers are shielded from Orsatti’s Section 1983 claim by the doctrine of qualified immunity, and were improperly denied summary judgment by the district Court. [Approved for Publication. Available online in 3rd Circuit - Appellate Cases.] PRODUCT LIABILITY — DRUGS 32-7-7185 Mary Ann Kelly v. The Upjohn Co., U.S. Dist. Ct. (22 pp.) On plaintiff’s complaint — alleging that drug company was liable to her under various theories of liability for her addiction to Halcion — drug company’s motion for summary judgment is granted on the basis of the applicable two-year statute of limitations, since it is clear under the discovery rule that plaintiff was aware of her injuries and the potential fault of the company more than eight years before she filed suit.

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