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Vol. 3 No. 231 Decisions Released Dec. 7, 1995 STATE COURT CASES BANKING — NEGLIGENCE 06-2-7243 John Archdeacon v. Corestates N.J. National Bank, App. Div. (5 pp.) Where Veterans’ Administration erroneously informed bank that plaintiff had died and instructed that his accounts be closed, summary judgment dismissing plaintiff’s negligence suit for emotional distress was proper, since bank was not responsible for the mistake, helped plaintiff correct it once discovered and paid all costs involved. CONTRACTS — SUBCONTRACTORS 11-2-7244 Iecony Corp. v. Richard J. DePalma, et al., App. Div. (5 pp.) Quantum meruit judgment for subcontractor reversed, since contracting owners’ obligations ran solely to the bankrupt contractor, whereas subcontractor, who had other statutory means of protecting its rights, was not entitled to employ the legal fiction of quasi-contract to substitute one promisor or debtor for another. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7245 M.W. v. R.W., App. Div. (4 pp.) Husband’s blocking of his wife’s car with his own in her driveway was an isolated incident, not a continuing course of alarming conduct posing risk of harm to the wife, and the domestic violence restraining order and child visitation suspension entered against husband are reversed. 20-2-7246 C.N. v. A.N., App. Div. (2 pp.) In light of the disintegration of the marital relationship, defendant’s attempt to enter the locked bedroom door at 5:00 a.m. by use of a card, and, thereafter, his attempt to remove the door from its hinges, constituted purposeful harassment having the capacity to alarm the plaintiff, and entry of domestic violence restraining order was proper. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7247 Orrin D. Judd v. Bd. of Review, et al., App. Div. (3 pp.) Where claimant, who undisputedly qualified for unemployment benefits, followed the directions given to him but failed to file weekly mail-claim forms that he had never been instructed to file, except for fine print on the bottom of a form he never signed, his late compliance substantially satisfied applicable regulations, and the Board of Review erred in denying him benefits based on late filing. 25-2-7248 Paul Schneider v. Bd. of Review, App. Div. (3 pp.) Claimant’s total benefits were accurately calculated, since his “wages” in the final qualifying period were clearly severance pay, which is not considered wages for purposes of computing unemployment compensation benefits. LANDLORD/TENANT 27-2-7249 Continental Beverage Packaging Co., Inc., etc. v. Allpoints Warehousing, Inc., et al., App. Div. (9 pp.) In suit against tenant for reimbursement of monies plaintiff and its corporate predecessors paid landlord on certain lease guarantees after the default of the sublessee of tenant, standing to suit is established, since payment by entities within plaintiff’s corporate family is sufficient proof of express or implied authorization and of the assumption of the pertinent obligations by the corporations which actually made those payments. LAND USE 26-2-7250 Jerome Mason, et al. v. Planning Bd. of the Twp. of Middletown, App. Div. (17 pp.) Dismissal of landowners’ complaint in lieu of prerogative writ — challenging the denial by municipality of their application for a minor subdivision and variances — was proper since landowners did not establish undue hardship to themselves from the denial nor that an approval would have conferred a substantial benefit upon the community. NEGLIGENCE — SCHOOLS 31-2-7251 Thomas Cocco v. Eastern Camden Cy. Regional High School District, et al., App. Div. (8 pp.) In suit charging school district with for negligent supervision for injuries sustained by one student in an attack by another, judge should not have applied the Tort Claims Act immunities and nor precluded the admission of evidence concerning the disciplinary codes, school code and district regulations and enforcement or lack thereof, since jury should be able to consider such standards in evaluating whether or not the district exercised reasonable care for the plaintiff’s safety. PHYSICIAN/PATIENT 29-2-7252 Earlene Rashid, et al. v. East Orange General Hospital, et al., App. Div. (5 pp.) Where plaintiff’s permanent bridge was dislodged and removed from her mouth during an otherwise uneventful hysterectomy, and she incurred significant costs, pain and suffering over the next few years while undergoing bridge replacement and readjustment, jury verdict against anesthesiologist and hospital was reasonable. PUBLIC EMPLOYEES 33-2-7253 In the Matter of Patrick Russo, App. Div. (3 pp.) Final administrative action of the Merit System Board — removing plaintiff’s name from the eligibility list for the position of laboratory technician — is affirmed, since although convictions and sanctions against the plaintiff are several years old, they are of a serious nature, they do not represent isolated incidents of wrongdoing and plaintiff has failed to show remorse or establish rehabilitation. PUBLIC EMPLOYEES — POLICE 33-2-7254 John Fabian v. Dept. of Personnel, etc., et al., App. Div. (4 pp.) Personnel department properly found that police officer had violated department rules and regulations when he went to buy a lottery ticket in New York City while off-duty, walked — appearing intoxicated and openly displaying his gun — in the PATH concourse, and then was less than cooperative when stopped by the Port Authority police. CRIMINAL LAW AND PROCEDURE 14-2-7255 State v. Michael A. Brown, App. Div. (6 pp.) Defendant’s conviction for speeding is reversed, and the matter is remanded for a new hearing at which defendant should be permitted to testify on the alleged inability of his car to accelerate in the manner in which the patrolman asserted it did. CRIMINAL LAW AND PROCEDURE — FORFEITURES 14-3-7256 State v. James A. Williams, Law Div. (15 pp.) The court finds, by a preponderance of the evidence, that the forfeiture of $748 found in defendant’s pocket at the time of the execution of a search warrant is not, on its face, so unreasonable or excessive that it transformed what was clearly intended as a civil remedy into a criminal penalty, and, therefore double jeopardy does not attach. [Approved for publication Dec. 6, 1995. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES INTELLECTUAL PROPERTY — JURISDICTION 53-7-7257 Lucas Industries, Inc., et al. v. Kendiesel, Inc., et al., U.S. Dist. Ct. (12 pp.) Since evidence shows that Polish manufacturer repeatedly supplied its product to customer which it knew, or had reason to know, was engaged in trademark infringement, it has rendered itself contributorily responsible for the resultant economic injury, and court has jurisdiction notwithstanding manufacturer’s absence of contacts with the forum state. (For prior opinions, see DDS Nos. 08-7-5899 (June 15, 1995 Alert) and 24-7-6492 (September 8, 1995 Alert.) LABOR AND EMPLOYMENT — REMAND 25-7-7258 William G. Darley v. The Fairchild Corp., et al., U.S. Dist. Ct. (10 pp.) The court denies employer’s motion — seeking remand of former employee’s discrimination case for failure to meet the federal jurisdictional $50,000 amount in controversy — since, although a specific amount of damages is not stated in the complaint, a reasonable reading of the value of the rights being litigated, including potential punitive damages, interest, attorneys’ fees and costs of suit, shows that employee’s damages could exceed $50,000. LANDLORD/TENANT — CONSTITUTIONAL LAW 27-7-7259 Silas Taylor, Jr. v. Henry Cisneros, etc., et al., U.S. Dist. Ct. (20 pp.) Section of N.J. Anti-Eviction Act that permits eviction of a tenant convicted of possession of drug paraphernalia is constitutional, despite claims that it violates rights against double jeopardy and excessive fines, since it furthers a rational legislative strategy to protect landlords and tenants from the evils associated with tenant drug use and does not constitute the “punishment” required to trigger the constitutional issues. [For publication. Available online in 3rd Circuit - District Courts.] WORKERS’ COMPENSATION — BLACK LUNG DISEASE 39-8-7260 Labelle Processing Co. v. John Swarrow, et al., Third Cir. (23 pp.) Department of Labor’s Benefit Review Board — and the Administrative Law Judge — applied the wrong standard in finding that a coal miner had established “a material change in conditions” from the prior denial of his claim for black lung benefits, and the matter is remanded for a reevaluation according to the proper standard articulated in this opinion. CRIMINAL LAW AND PROCEDURE — SENTENCING 14-8-7261 U.S.A. v. Theodore M. Sabarese, Third Cir. (8 pp.) Defendant’s challenge to N.J. term of imprisonment running consecutively with his Pennsylvania term of probation is rejected, since the N.J. judge correctly found that the N.J. conviction for financial fraud as to airplane loans was not related to the Pennsylvania conviction for such fraud as to boat loans, and even if they were related, a sentence of probation cannot run concurrently with a term of imprisonment. [Available online in 3rd Circuit - Appellate Court.]

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