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Vol. 3 No. 229 Decisions Released Dec. 5, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — CASINOS 01-1-7210 State, Dept. of Law & Public Safety, Div. of Gaming Enforcement v. Adriel Gonzalez, Supreme Ct. (19 pp.) Because of the strong public policy of maintaining integrity in the casino industry, a casino employee who is the subject of an administrative casino-employee license revocation proceeding, may not present evidence contradicting his or her criminal convictions, although he or she may present evidence to support a claim of rehabilitation. [Approved for Publication - Available Online in NJ Full-Text Decisions] ARBITRATION 03-2-7211 Donald Grenza, et al. v. County of Monmouth, et al., App. Div. (5 pp.) Since it was error for the court to assume jurisdiction over the county where there had been no service of process in compliance with court rules, court’s order confirming arbitrator’s award between sheriff’s department and union local is reversed. ATTORNEY/CLIENT — LIENS 04-2-7212 Teri Lodge, et al. v. Fox & Lazo, et al., App. Div. (6 pp.) Where, after an aborted real estate closing, seller’s attorney sought to enforce a lien (for services rendered to seller) against prospective buyers, to whom the deposited funds had been disbursed, there was nothing upon which the lien could attach, attorney must pursue his own client for his fees. CONDEMNATION 44-2-7213 Lawrence Massaro, et al. v. N.J. Dept. of Environmental Protection and Energy, et al., App. Div. (5 pp.) Where landowner, faced with a wetlands permit denial, sued DEP alleging inverse condemnation, court correctly dismissed the action because the landowners failed to seek a hearing on the permit denial and therefore, failed to exhaust their administrative remedies. FAMILY LAW 20-2-7214 Donna Eigen v. Jonathan Eigen, App. Div. (9 pp.) Trial judge’s decisions with respect to physical child custody and equitable distribution are supported by sufficient evidence in the record and are affirmed. INSURANCE — VERBAL THRESHOLD 23-2-7215 Susan Rescorl v. Richard Michael, App. Div. (7 pp.) Accepting as true plaintiff’s doctors’ reports, coupled with plaintiff’s certification, there is sufficient evidence to survive a summary judgment motion that plaintiff suffered an injury caused by the accident and that the injury had a substantial impact upon her, and the fact that the full extent of her injuries is indeterminate does not matter. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7216 Anne E. Chmielewski v. Bd. of Review, et al., App. Div. (8 pp.) Since it is clear that employee quit her job because she concluded it did not pay as well as her prior position, and was perhaps not as much to her tastes as she had hoped, this constitutes a voluntary resignation and she was properly denied unemployment compensation benefits. LANDLORD/TENANT 27-2-7217 Barbara D. Ruane v. Linda Bilanin, App. Div. (2 pp.) There was substantial evidence in the record to sustain trial court’s conclusion that the apartment upon which plaintiffs put down a rental deposit was not identical (as represented) to the one they were shown, and deposit was rightfully returned despite landlord’s claim that it was due money for holding the apartment off the market for plaintiffs. PHYSICIAN/PATIENT 29-2-7218 Lawrence DeLyons, et al. v. Lyle Back, M.D., et al., App. Div. (19 pp.) In medical malpractice case, where plaintiff claimed his tooth came loose during surgery and lodged in his lung, causing extensive additional medical treatment and further surgery, trial court’s rulings on expert testimony were not error, and verdict against surgeon, resident and nurse is affirmed. REAL ESTATE — FORECLOSURE 34-2-7219 American Financial Corp. of Tampa v. George Strus, et al., App. Div. (5 pp.) Since mortgage holder’s status as a holder in due course turns on a showing of good faith and lack of notice of the payors’ defenses, the payor is entitled to conduct appropriate discovery to determine these factual issues, and summary judgment for the holder was inappropriate. REAL ESTATE — MISREPRESENTATIONS 34-2-7220 Vijay Havaldar, et al. v. Thomas Yaccarino, II, et al., App. Div. (8 pp.) Court properly dismissed all but one of buyers’ claims alleging sellers’ misrepresentations in the sale of an apartment building, including the claim for violation of the Consumer Fraud Act, and jury’s verdict on the one claim that it decided — that sellers had breached the contract by failing to make repairs and obtain a state inspection certificate prior to closing — is affirmed. REAL ESTATE — PARTITION 34-2-7221 Kathie Belmont, etc. v. William R. Belmont, App. Div. (4 pp.) Trial judge’s calculation of partition award was proper, and he was correct in awarding plaintiff credits for all of the repairs and maintenance for which she had paid, and all of the mortgage payments that she had made, less the rents that she received. WORKERS’ COMPENSATION 39-1-7222 Gino Romanny v. Stanley Baldino Construction v. N.J. Re-Insurance Co., Supreme Ct. (15 pp.) Since the record reveals no failure of the workers’ compensation carrier to comply fully with the statutory and regulatory mandates concerning the renewal of workers’ compensation policies, coverage need not be continued in view of the insured’s failure to timely pay its premium. [Approved for Publication - Available Online in NJ Full-Text Decisions] CRIMINAL LAW AND PROCEDURE 14-2-7223A State v. Stephen Antoniadis, App. Div. (8 pp.) (1) Although the evidence presented did not prove theft by deception, it did prove theft by failure to make required disposition of property received, and, therefore, defendant’s conviction need not be reversed on that ground. (2) Since defendant was not individually advised of his right to counsel, his conviction must be reversed on this ground. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-2-7223 In the Matter of Registrant G.A., etc., App. Div. (5 pp.) Registrant was entitled to a hearing to contest the prosecutor’s findings and to present expert testimony regarding risk assessment and tier classification, and the failure to afford him such a hearing mandates reversal of his tier classification. FEDERAL COURT CASES BANKRUPTCY — STUDENT LOANS 42-8-7224 In re: Marjorie Jo Faish, Debtor; Pennsylvania Higher Education Assistance Agency v. Marjorie Jo Faish, Third Cir. (18 pp.) Analyzing the three divergent tests utilized by the federal courts of appeals to define “undue hardship” which would excuse the repayment of student loans, the test articulated in Brunner v. N.Y. State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987), will be the standard to be followed in the Third Circuit, and, applying the Brunner test to the debtor herein, and finding that she has not made out a case of undue hardship, debtor’s student loan is non-dischargeable. [Available Online in 3rd Circuit - Appellate Court.] CIVIL PROCEDURE — VENUE 07-7-7225 Ilya Boguslavsky v. City of New York, U.S. Dist. Ct. (7 pp.) Where plaintiff sued the City of New York for damages as a result of his illegally-parked vehicle being affixed with a “booting” device, city’s motion to transfer venue to the Eastern District of N.Y. is granted, since the city is not a “resident” of N.J., the events underlying the claim occurred solely in N.Y., and that venue is a proper one. CONSTITUTIONAL LAW — RELIGIOUS HOLIDAY DISPLAYS 10-7-7226 The American Civil Liberties Union of N.J., etc., et al. v. Bret Schundler, etc., et al., U.S. Dist. Ct. (17 pp.) In a suit where plaintiffs allege various constitutional violations as a result of the municipality’s displaying both a cr�che and a menorah outside of city hall, inter alia, (1) since these religious symbols are displayed alone, in a prominent place associated with the municipal government, and without any secular symbols of the holidays to detract from the obvious religious message, the displays are in violation of the federal and state establishment clauses, and plaintiffs are granted summary judgment on these counts, however, (2) plaintiffs’ equal protection claims are dismissed, since they have not presented any evidence that they were treated differently from other similarly situated groups. [For publication. Available Online in 3rd Circuit - District Cases.] CONSTITUTIONAL LAW — FRIVOLOUS CLAIMS 10-7-7227 Arlene A. Kierstead v. William K. Suter, etc., et al., U.S. Dist. Ct. (37 pp. — 4-page opinion and 33-page appendix) Where court had previously dismissed on docketing, as frivolous, plaintiff’s “in forma pauperis” complaint — which alleged constitutional violations due to alleged governmental biomedical research on plaintiff’s person — and where plaintiff filed a second “in forma pauperis” claim, the court now makes the determination that plaintiff is entitled to “in forma pauperis” status, but, nevertheless, also dismisses the complaint as frivolous. (For prior opinion, see DDS No. 07-7-7068 in the Alert dated November 17, 1995.) DEBTOR/CREDITOR — INJUNCTIONS 15-7-7228 Ingersoll-Rand Financial Corp., etc. v. Lakanagam Achar, et al., U.S. Dist. Ct. (8 pp.) Creditor in federal suit is denied request for an injunction barring debtors’ state court proceeding against creditor in Oregon, since the parties in the Oregon suit are different, the Oregon suit involves different issues, and any result in that case will not necessarily conflict or be inconsistent with the court’s decision in the federal matter, and, therefore, the Oregon suit does not fall within the relitigation exception to the Federal Anti-Injunction Act.

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