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Vol. 3 No. 230 Decisions Released Dec. 6, 1995 STATE COURT CASES ARBITRATION — ATTORNEYS’ FEES 03-2-7229 CCA Industries, Inc. v. Creative Products Resource, Inc., App. Div. (8 pp.) Since defendant has not proved that plaintiff’s seeking of an injunction of arbitration was frivolous or in bad faith, defendant is not entitled to attorneys’ fees for successfully defending against the injunction. CORRECTIONS 13-2-7230 Richard Snell v. N.J. Dept. of Corrections, App. Div. (3 pp.) Disciplinary determination that inmate was guilty of fighting and imposition of sanctions for same were based upon substantial credible evidence in the record. FAMILY LAW 20-2-7231 Richard Jarboe v. Joan M. Mitchel, App. Div. (9 pp.) Where separation agreement clearly indicated that son would be given a full and complete Jewish education, trial judge did not abuse discretion in ordering father, during the time he has custody of the son, to drive him to a religious school 40 minutes away from the father’s residence, despite father’s protests that it would take away from his custody time. 20-2-7232 Susan Rovira, etc. v. Donald C. Schilke, App. Div. (8 pp.) Where settlement agreement provided that the son’s support would be renegotiated when he reached college age, but the parties were unable to renegotiate, the wife was entitled bring the matter to court as a motion for enforcement of litigant’s rights, and trial court improperly required her to demonstrate a change in circumstances. INSURANCE 23-1-7233 Nancy Strube v. Travelers Indemnity Co. of Illinois, et al., Supreme Ct. (5 pp.) Insurer’s statutory immunity from liability for failure to advise customers of the availability of additional underinsured and uninsured motorist coverage applies retroactively and therefore extends to policies issued before the statute’s effective date of June 29, 1993. NEGLIGENCE 31-2-7234 Margaret Garofalo v. Dominic E. Garofalo, et al., App. Div. (4 pp.) Verdict was properly granted to defendants, whose cars hit plaintiff’s car that was stopped in the fast lane of a highway, was proper, since there was ample evidence from which a jury could conclude that defendants were confronted with an imminent situation over which they had no control, that the situation was without fault on their part and that they did the best they could to avoid the accident. PHYSICIAN/PATIENT 29-2-7235 Janice Pescatore, et al. v. Jersey Shore Medical Center, et al., App. Div. (5 pp.) Hospital’s loss of plaintiff’s original biopsy slides, even if negligent, did not cause plaintiff an injury because the “foci of metastasis were less than 2 mm in diameter, and [her] prognosis in this situation would be the same as if she were node negative,” and therefore no cause of action existed. 29-2-7236 Robert Becker v. Dr. David V. Nenna, M.D., et al., App. Div. (7 pp.) Accepting plaintiff’s allegations that doctor did not advise him that a nerve graft might be required, or the risks of that procedure, and that doctor never obtained plaintiff’s consent to remove nerves from his feet to graft on his finger, there was evidence sufficient to survive a motion to dismiss for plaintiff’s failure to file an expert’s report. REAL ESTATE 34-2-7237 Mieczyslaw Grodzki v. Teresa Zienkiewicz, App. Div. (2 pp.) Judicial reformation of a deed was proper where the evidence supported judge’s finding that the parties intended to purchase a house together, using funds from a joint bank account to do so, but agreed to allow defendant to take title solely in her name because plaintiff was involved in a divorce. FEDERAL COURT CASES ATTORNEYS — FEES 04-7-7238 Gerald B. Sweeney v. Seneca Laboratories, Inc., et al., U.S. Dist. Ct. (10 pp.) (1) Since clients voluntarily submitted their fee dispute to binding arbitration, they are bound by the award in the absence of an appeal, and judgment is entered in the amount of the award, together with prejudgment interest, but not with costs; (2) the clients’ counterclaim allegations of legal malpractice are barred by the entire controversy doctrine. CORRECTIONS 13-7-7239 Richard J. Szper v. Leonard P. McGhee, et al.; James A. Falk v. County of Essex, et al., U.S. Dist. Ct. (10 pp.) Since a prison official cannot be found liable under the constitution for denying an inmate humane conditions of confinement unless the official is subjectively aware of and disregards an excessive risk to the inmate, summary judgment is granted to those prison officials whom plaintiff has failed to show knew of the threats inmate had received, but denied as to others who had such knowledge. INTELLECTUAL PROPERTY 53-7-7240 City of Newark, et al. v. Michael Beasley, et al., U.S. Dist. Ct. (21 pp.) Where, during the first part of a bifurcated trial, in which it was determined that defendant owned certain trademarks and patents, defendant learned of additional facts, leave to amend his counterclaims in the other portion of the suit, dealing with infringement and damages, is granted. However, his motion to stay the trial is denied, since he had ample time to hire damages experts. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-7241 Luisa M. Cristofano v. Ferrari North America, Inc., et al., U.S. Dist. Ct. (7 pp.) Allegations of former administrative assistant that her superiors made sexual advances to her and then retaliated against her when she refused to respond are sufficient to survive the employer’s motion to dismiss. SECURITIES 50-7-7242 BSL Enterprises v. Securities and Exchange Commission, U.S. Dist. Ct. (5 pp.) Since the SEC was involved in a legitimate law enforcement inquiry into possible violations in connection with the purchase and sale of casino stocks and substantially complied with the customer notice provisions, plaintiff’s motion to quash subpoena is denied.

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