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Vol. 3 No. 232 Decisions Released Dec. 8, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-2-7262 Anchor Savings Bank, FSB v. Robert Finkle, et al.; Rochelle Finkle v. Judith Joseph, et al., App. Div. (8 pp.) When ex-wife co-signed for a loan given to her ex-husband’s accounting firm, and a mortgage was given on the house in which the ex-wife resided to secure that loan, law firm that was hired by ex-husband to represent all borrowers in the transaction owed a duty of representation to the ex-wife to explain to her the risks she faced; and, when ex-wife ultimately lost the house in foreclosure as a result of the accounting firm’s default on loan, verdict in her malpractice case against the attorneys was proper. CONSTRUCTION — NEGLIGENCE 43-2-7263 Brian Dunlevy, et al. v. Seaview Water Co., et al., App. Div. (10 pp.) Even if pipeline repair work — being performed by contractor’s employees when they were injured — was inherently dangerous because of soil conditions, property owner is insulated from negligence claim by its hiring of a competent contractor, and, since the employees have not shown that the contractor was not competent, employees are relegated to their workers’ compensation remedies. CONTRACTS 11-2-7264 Rolina Carafa v. Richie’s Guideline Tatoos, Inc., et al., App. Div. (4 pp.) Even though judge had admonished defendant that he must appear on the next day for trial or the trial would proceed without him, judge’s decision to disregard defendant’s proferred reason for non-appearance on that date, without investigating its credibility, was erroneous. DEBTOR/CREDITOR — BANKRUPTCY 15-2-7265 Anthony Auriemma v. Patricia Minovich, et al., App. Div. (15 pp.) Where trial judge had ordered enforcement of defendants’ promise to repay half of business loan from the proceeds of an anticipated settlement, there was a constructive trust for plaintiffs on the settlement funds, which were received after defendants filed bankruptcy, and the funds were never part of the bankruptcy estate. FAMILY LAW 20-2-7266 Frances Silverberg v. Cheryl Bell Silverberg v. Norman Silverberg, as Executor of the Estate of Jerry Silverberg, App. Div. (10 pp.) Money judgment in favor of first wife — against second wife and the estate of deceased husband — was proper, where evidence showed that deceased husband had engaged in a willful and intentional pattern of deception and concealment of assets at the time of his divorce from first wife, and second wife had done her best to strip the decedent of his assets before he died. INSURANCE — P.I.P. 23-2-7267 Francis D. Kelley, et al. v. Royal Ins. Co., App. Div. (8 pp.) Where neither plaintiffs’ nor defendant’s experts could conclude whether insured’s automobile accident had caused his stroke, or whether the stroke caused the accident, trial court correctly ruled that insured had not proved entitlement to PIP benefits. INSURANCE — VERBAL THRESHOLD 23-2-7268 Frank A. Pizzella v. Ralston H. Gilling, App. Div. (7 pp.) Plaintiff’s case was properly dismissed, since he failed to present objective medical evidence to support the causal relationship between his injury and the disability alleged to have resulted therefrom, and failed to demonstrate that his claimed disability had a serious impact on his life. 23-2-7269 Maria Benet v. Mary E. Ruff, App. Div. (6 pp.) If the evidence offered by plaintiff’s doctor was found to be credible by the jury, the jury could determine that the injury has had a serious impact on plaintiff’s life, and summary judgment for the defendant was improperly granted. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7270 Philip Fornaro v. Bd. of Review, et al., App. Div. (8 pp.) Despite the sharp dispute between the claimant and his uncle/employer, there was sufficient credible evidence to support the board’s determination that claimant voluntarily left his job after a violent argument with the uncle; however a procedural error requires that the matter be remanded. LAND USE 26-2-7271 Thomas Koziol, et al. v. Zoning Bd. of Adjustment of the Borough of Lodi, etc., et al., App. Div. (3 pp.) Denial of parking variance to current owners of garden apartment was improper, since borough did not enforce the pre-existing off-street parking requirement when it permitted the apartment to be constructed in 1971. NEGLIGENCE 31-2-7272 John J. Kolibas, et al. v. Tee-Bar Industries, Inc., et al., App. Div. (7 pp.) An occupier of a building, who hires an electrical contractor to perform dangerous work, is not shielded from liability if that occupier aggravates the normal risks of the work by creating an additional hazard which is neither obvious nor visible; therefore, since defendant damaged a circuit breaker in a way not reasonably apparent to plaintiff, and its warnings were inadequate, verdict against defendant is affirmed. 31-2-7273 Ola Louis, etc., et al. v. City of Newark, etc., et al., App. Div. (4 pp.) Although City of Newark was the title owner of the building in which plaintiff’s decedents were killed in a fire, since plaintiff produced no evidence at all — only speculation — as to the cause of the fire, her action was properly dismissed. 31-2-7274 Christine Tedesco v. Eckerd Drug Co., et al., App. Div. (4 pp.) In a slip and fall case — where plaintiff was injured on a freshly waxed floor in defendant’s store — trial judge clearly instructed jury that it could consider store’s negligence either on the vicarious liability theory attendent upon inherently dangerous work, or on direct negligence resulting from store’s retention of control over floor-waxing, and jury verdict in favor of store is affirmed. 31-2-7275 Luz I. Sanjurjo v. City of Newark, et al., App. Div. (7 pp.) Where plaintiff’s suit against the municipality was dismissed solely because she placed her trust in her now-disbarred attorney who failed to do anything to effectuate service once he had filed her complaint, the trial judge should not have denied her motion to restore the matter. PUBLIC EMPLOYEES — POLICE — DRUG TESTING 33-2-7276 In the Matter of Vernon Harrison, App. Div. (5 pp.) Where police officer’s superiors had a reasonable, articulable, and individualized suspicion that officer has been using drugs, their order that officer submit to drug testing was proper, and his suspension and ultimate removal from his job for refusing to comply with that order is affirmed. WORKERS’ COMPENSATION 39-2-7277 Sisay Woldai v. Dymac Cleaning, Inc., App. Div. (5 pp.) Evidence supports judge’s finding that three alleged attacks on petitioner by co-workers never happened, and that the diagnosis of a pre-existing advanced paranoid schizophrenia by respondent’s expert was the most credible diagnosis; therefore, dismissal of all four claim petitions — three for the attacks, and one alleging job-related emotional disability — was proper. FEDERAL COURT CASES ADMIRALTY — CARRIAGE OF GOODS BY SEA ACT 54-7-7278 Cincinnati Milacron-Heald Corp., et al. v. Universal Maritime Service Corp., et al., U.S. Dist. Ct. (11 pp.) In suit for damage to three shipped machines, since the limitation of shipper’s liability — provided by the Carriage of Goods by Sea Act — extends to periods before the goods are loaded and after they are discharged from the ship only if the goods are in actual custody of the shipper, and there is a material question of fact as to whether stevedore was acting as agent of shipper when two of the machines were damaged, summary judgment cannot be granted as to these two machines, but is granted as to the third machine, which was damaged in the clearly covered process of being loaded onto the ship. COMMERCE — FREIGHT 08-7-7279 Freight Operations, Inc., etc. v. Pathmark Stores, Inc., et al., U.S. Dist. Ct. (9 pp.) Because Pathmark was the actual or beneficial owner of title to the various newspaper circulars transported by plaintiff, it cannot be held liable for tariff-related charges under the section of the Interstate Commerce Act by which plaintiff alleges jurisdiction and liability, since only a consignee not having beneficial title is liable for rates billed at the time of delivery, and Pathmark’s motion to dismiss is granted. INSURANCE 23-7-7280 New York Life Insurance Co. v. Jaguar Motors, Inc., U.S. Dist. Ct. (9 pp.) Where insurance company miscalculated defendant’s final premium payment as a result of a mistake of fact, insurance company is entitled to restitution from the defendant for the difference owed, since defendant has shown no prejudice, and should not benefit from the mistake. INTELLECTUAL PROPERTY 53-7-7281 British Gas PLC v. Miller Pipeline Corp., U.S. Dist. Ct. (7 pp.) Gas company’s patent infringement suit must be dismissed under the first-filed rule, since both gas company’s case and defendant’s previously filed Indiana patent case involve many of the same factual and legal issues and are offshoots of the same basic controversy between the parties, and gas company’s case is a compulsory counterclaim to defendant’s Indiana suit. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-7-7282 Ronald W. Telepo v. Christine Todd Whitman, etc., et al., U.S. Dist. Ct. (4 pp.) Defendant has demonstrated neither the need for, nor the right to, a preliminary injunction enjoining the defendants from evaluating his circumstances to determine what community notification tier will be selected for him, and his application is denied.

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