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Vol. 3 No. 227 Decisions Released Dec. 1, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-1-7186 In the Matter of J. David Alcantara, An Attorney at Law, Supreme Ct. (18 pp.) Attorney violated the rules of professional conduct, both by speaking to his client’s co-defendants, without permission of their counsel, and by requesting that they refrain from giving testimony favorable to the state, and for these violations, he is reprimanded. [Approved for Publication. Available online in NJ Full- Text Decisions.] COMMERCE — UNFAIR COMPETITION — TRADE NAMES 08-2-7187 Garden Irrigation Co. Inc. v. Garden Sprinklers Co., App. Div. (10 pp.) Since the word “garden” is a generic or common term used to identify garden-related services that cannot get trade name protection, plaintiff cannot prevent others from employing that word in their trade names to describe similar businesses, and the trial judge correctly granted summary judgment to defendant. CONTRACTS 11-2-7188 Redwood Drywall, Inc. v. Jack Silverman, etc., et al., App. Div. (4 pp.) Since the plaintiff contracted orally to install drywall by a handshake agreement with one of two partners, and failed to establish an agreement with the partnership defendant and the other partner individually, summary judgment in favor of the latter two defendants on suit for payment of the contract was proper. CONTRACTS — COMMISSIONS 11-2-7189 Nathan Friedman v. Continental Health Affiliates Inc., etc., et al., App. Div. (12 pp.) The trial court erred when it granted summary judgment to defendants — on consultant’s suit for commissions in connection with the development of a nursing home — since the court erroneously viewed the plaintiff as a real estate broker rather than a business broker, and did not give enough consideration to the complexities of the related transactions at issue, dealing with the highly regulated health care industry. CORRECTIONS 13-2-7190 Thomas Merola v. Dept. of Corrections, App. Div. (16 pp.) On inmate’s challenge to the state Department of Corrections’s calculation of the end date of incarceration, the department properly determined that inmate’s parole-ineligibility period may not be reduced, either through the application of commutation credits or through compilation of inmate work credits, below the statutorily mandated term of imprisonment for murder. [Approved for publication Dec. 1, 1995. Available online in NJ Full-Text Decisions.] 13-2-7191 Carl J. Culley v. Dept. of Corrections, App. Div. (3 pp.) The Department of Corrections correctly determined that inmate’s period of parole ineligibility cannot be reduced below the statutorily mandated term of imprisonment, either through the application of commutation credits or through compilation of inmate work credits. INSURANCE — VERBAL THRESHOLD 23-2-7192 Antoinette M. Plewa v. Joseph Adametz, et al., App. Div. (4 pp.) Summary judgment was improperly granted to defendants since the trial judge failed to analyze plaintiff’s medical reports to determine if there was competent medical evidence to show a “permanent loss…or…consequential limitation” of body parts, and also failed to state why plaintiff did not satisfy the “serious impact on [her] life test.” LABOR AND EMPLOYMENT — WRONGFUL VS. “AT-WILL” DISCHARGE 25-2-7193 Lillian Milanes v. Warner-Lambert Co., App. Div. (3 pp.) Plaintiff’s claim that she was entitled to job security based on a policy statement in an employment agreement she signed is without merit, and she was merely an “at-will” employee and was not wrongfully discharged. NEGLIGENCE 31-2-7194 Barbara Moore v. The Pep Boys, App. Div. (4 pp.) In a case where plaintiff’s car wheel fell off — allegedly due to stripped lug nuts — and she crashed and was injured, since plaintiff did not retain an expert witness, nor did she retain the car, the wheel, or the lug nuts, the evidence was insufficient to establish a nexus between the service performed by the defendant and the loss of the wheel seven days later, and plaintiff’s case was properly dismissed. 31-2-7195 Veronica Ghazal v. Newark Hous. Auth., et al., App. Div. (4 pp.) Where plaintiff voluntarily accompanied a stranger into an apartment building managed by defendant — where she was assaulted and raped by the stranger — her injuries did not result from any “dangerous condition” on the property due to defendant’s negligent provision of security, maintenance and control of the premises, and her case was properly dismissed. PUBLIC EMPLOYEES 33-2-7196 Virginia LoBiondo (Kiernan) v. Bd. of Trustees, PERS, App. Div. (6 pp.) The court affirms the Public Employees’ Retirement System board of trustees’ determination — forfeiting the service of former housing authority executive director based upon his conviction for theft directly related to his public duties — despite the argument of the director’s ex-wife that such forfeiture was inappropriate because she, not the director, was the person receiving the retirement allowance as a result of their divorce judgment. 33-2-7197 In the Matter of State of N.J. (Dept. of Envtl. Protection) v. The Communications Workers of Am., AFL-CIO, App. Div. (15 pp.) The court affirms the decision of the Public Employment Relations Commission that the reduction in the workweek hours of DEP employees — as part of governor’s budget cutbacks — was nonnegotiable or pre-empted based on the applicable laws and implementing regulations, since there are times when the government’s role in implementing public policy will face off against the employees’ right to negotiate over employment terms and conditions. [Approved for publication Dec. 1, 1995. Available online in NJ Full-Text Decisions.] Additional Opinions Approved for Publication: 34-2-7009 Victor Greco, et al. v. Annette Zecchino; 23-2-7144 Howard Savings Bank, et al. v. Liberty Mut. Ins. Co.,et al. v. Joseph Fleming, et al. FEDERAL COURT CASES BANKRUPTCY — ADMINISTRATIVE EXPENSES 42-6-7198 In re: Mahoney-Troast Construction Co., Debtor, U.S. Bankruptcy Ct. (14 pp.) Landlord’s claim for reimbursement of environmental remediation costs incurred on property formerly occupied by debtor — which costs were expended post-petition, but which arose from debtor’s pre-petition conduct — cannot be classified as prioritized administrative expenses because there was no imminent threat to the public from the soil condition, and landlord undertook the remediation voluntarily, not as a result of a regulatory authority’s order; therefore claim is entitled to no more than pre-petition status. CONTRACTS — CONSEQUENTIAL DAMAGES 11-7-7199 St. Paul Fire & Marine Ins. Co., etc. v. Polaris Corp., etc., U.S. Dist. Ct. (15 pp.) Where a storm detached about one-half of a roof recently installed by defendant roofer, which resulted in a warehouse’s contents getting damaged, and insurer of contents filed suit against roofer to recoup the damages insurer paid to warehouse, analyzing the relevant clauses of the contract between roofer and warehouse, roofer is granted summary judgment based on the various disclaimers of liability for consequential damages resulting from its faulty workmanship or materials. LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-7200 Elizabeth A. Bell v. Twp. of Old Bridge, et al., U.S. Dist. Ct. (21 pp.) When a township administrator’s secretary, during her probationary employment period, was told to deliver certain letters and refused, and was subsequently terminated for this and other reasons, (1) her claim that her termination violated her right of free association is dismissed, since she has not proved that the request to deliver the letters was a political act that would have compelled her to compromise her political convictions, and (2) her claim that her termination deprived her of a protected property interest in her employment without due process is likewise dismissed, since plaintiff, still in her probationary period, had no such protected property interest. CRIMINAL LAW AND PROCEDURE 14-7-7201 Giacomo Di Norscio, et al. v. U.S.A., U.S. Dist. Ct. (30 pp.) Petitioners’ claim for relief filed under 28 U.S.C. 2255 — alleging a Brady violation at trial — is denied, since the judge correctly ruled that, while there were impeachment materials as to the witness in question that should have been turned over earlier to the defense, the defense was ultimately given those materials, could still use them, and was, therefore, not prejudiced, and, additionally, petitioners have shown no reason why this issue was not raised at trial or at any point in the years before this application. A

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