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Vol. 3 No. 224 Decisions Released Nov. 28, 1995 STATE COURT CASES BANKING — CREDIT CARD LATE FEES 06-1-7139 Marc Sherman v. Citibank (South Dakota), N.A., Supreme Ct. (84 pp., including 2 dissents) Late payment fees are not “interest” within the intent and purpose of Section 85 of the National Bank Act, and credit card holder’s state law defenses to such charges do not conflict with federal law, are not pre-empted, and the late payment fees are illegal under New Jersey law. [Companion case to Hunter below. Available online in NJ Library Full-Text Decisions] 06-1-7140 James Hunter v. Greenwood Trust Co., Supreme Ct. (27 pp., including two dissents) New Jersey usury laws prohibiting banks from charging late fees on credit card accounts do not conflict with the federal statute giving national banks and federally insured state banks preferential treatment with respect to lending authority, therefore, federal law does not preempt N.J. law’s prohibition on such charges. [Companion case to Sherman above. Available online in NJ Full-Text Decisions.] CONSTITUTIONAL LAW — COMMITMENT 10-2-7141 In the Matter of the Commitment of D.M.; In the Matter of the Commitment of F.J., App. Div. (11 pp.) In both cases, the state established by clear and convincing evidence that patients were suffering from mental illness and were likely to pose a substantial risk of danger to themselves or to society within the reasonably foreseeable future, and orders continuing the patients respective involuntary commitments to psychiatric hospitals, subject to review hearings in two months, are affirmed. [Approved for publication Nov. 28, 1995. Available online in NJ Full-Text Decisions] FAMILY LAW 20-2-7142 Mary Lou Hughes Scardino v. Thomas F. Hughes Jr., App. Div. (10 pp.) The trial judge erred when he failed to award father credit against his support arrearages for the expenses the father incurred on his daughter’s behalf when she came to live with him. 20-2-7143 Katherine C. Boyle v. Hugh A. Boyle, App. Div. (7 pp.) In light of the totality of circumstances, including husband’s insistence upon operating his own low-income business and his inexplicable failure to apply for Social Security benefits to aid him in meeting his court-ordered obligations to wife, the trial court did not abuse its discretion in denying husband’s motion to modify his support obligation. INSURANCE 23-2-7144 Howard Sav. Bank, et al. v. Liberty Mut. Ins. Co., et al. v. Joseph Fleming, et al., App. Div. (8 pp.) Where multi-peril insurance policy was canceled due to property owner’s failure to pay premiums, and fire destroyed property seven months after the policy would have expired even if it had not been canceled, insurance company’s failure to notify mortgagee bank of the policy’s cancellation does not obligate it to indemnify bank for the fire loss, since insurer has no legal duty to give notice of the expiration of a policy. NEGLIGENCE — TORT CLAIMS ACT 31-2-7145 Doris DeFrancisco, et al. v. Cape May County, App. Div. (5 pp.) Where plaintiffs were involved in an automobile accident allegedly caused by an improperly maintained stop sign, an order denying plaintiffs’ application to file a late notice of claim against county was proper, since plaintiffs possessed information that the county might be a responsible party long before the filing deadline, and there is no evidence that the municipality, to which plaintiffs sent notice in a timely fashion, thwarted plaintiffs’ efforts to learn of the county’s involvement. PHYSICIAN/PATIENT 29-2-7146 Magdalena Versusky, et al. v. Kimball Medical Center, et al., App. Div. (5 pp.) Where plaintiffs’ first expert witness was contacted for an update and did not initially respond, and then later advised plaintiffs’ counsel that he could no longer be of service, the trial court erred in dismissing plaintiffs’ medical malpractice case, since they should have been given an opportunity to get another expert. PRODUCT LIABILITY 32-2-7147 James McNelis, et al. v. S&C Electric Co., et al., App. Div. (7 pp.) Since switchgear enclosure was a real property improvement constructed and erected more than 10 years before electrical worker’s injury — which he suffered while he repaired the enclosure — worker’s product liability action was properly barred by the 10-year statute of repose. PUBLIC EMPLOYEES — POLICE — ELIGIBILITY 33-2-7148 Joseph Comparato v. Twp. of N. Brunswick, App. Div. (3 pp.) The decision to remove applicant from the list of eligible candidates for the position of police officer was neither arbitrary nor capricious since applicant showed characteristics in psychological tests that impaired his ability to serve as an officer. PUBLIC EMPLOYEES — POLICE — TORTS 33-2-7149 Antonios Kourinis v. Donald Michelson, et al., App. Div. (8 pp.) Although plaintiff did not meet the statutory threshold to file suit against police officer, municipality and county for pain and suffering arising from officer’s conduct during an automobile stop, and summary judgment was proper for defendants on these counts, the statute’s immunity provision is inapplicable to shield public employee from liability if his conduct constituted willful misconduct, and, since defendants have not demonstrated beyond a genuine dispute of material fact that the officer was not guilty of willful misconduct, summary judgment as to the officer alone should not have been granted in full. REAL ESTATE — SPECIFIC PERFORMANCE 34-2-7150 United Jersey Bank/Central, N.A. v. Brinkerhoff Constr. Inc., et al.; County of Somerset v. Brinkerhoff Constr. Inc., App. Div. (5 pp.) Since it was construction company’s inability to convey clear title to the county that delayed a closing, and county took all steps possible to join in actions to clear the title, and remained ready, willing and able to close at all times, specific performance was correctly ordered. SECURITIES 50-2-7151 John Blume v. Ryan, Beck & Co., et al., App. Div. (7 pp.) Investor’s complaint against brokers — alleging breach of fiduciary duty and oral misrepresentations surrounding a bad tax shelter investment — was properly dismissed based on the statute of limitations, and investor’s reliance on the “discovery rule” to overcome the statute fails, since he knew or should have known that the representations he claims were made were disclaimed in the written offerings and risk disclosures he received at the time of each investment. CRIMINAL LAW AND PROCEDURE 14-2-7152 State v. Barry Stewart, App. Div. (5 pp.) The trial judge erred when she instructed the jury that they could convict defendant of third-degree aggravated assault if they found that he recklessly caused bodily harm to the victim with a deadly weapon; therefore that conviction is reversed. 14-2-7153 State v. Larry Raymond, et al., App. Div. (7 pp.) Since, at the time of the pat-down search of defendant, there was neither an arrest nor probable cause to arrest, the pat-down and subsequent seizure of cocaine cannot be justified as a search incident to an arrest and the cocaine was properly suppressed, however, cocaine thrown from the window of defendant’s vehicle before it was stopped, as well as marijuana found on defendant’s person at the police station, should not have been suppressed since there was no expectation of privacy in the former situation, and the doctrine of inevitable discovery justified the latter. 14-2-7154 State v. John A. Watson, App. Div. (8 pp.) Where defendant filed a petition for post-conviction relief alleging that his former attorney — a public defender — had rendered ineffective assistance of counsel, the representation of defendant on that PCR petition by a public defender from the same office created an appearance of impropriety, if not an actual conflict of interest, and the matter is remanded for a new PCR hearing. 14-2-7155 State v. Rodney S. Sweat, App. Div. (6 pp.) Defendant was denied his right to a fair trial by reason of the trial court’s limitations on defendant’s own direct testimony on his cross-examination of a police officer, so his conviction on certain charges is reversed. FEDERAL COURT CASES CORRECTIONS — CIVIL RIGHTS 13-7-7156 Wayne Cole v. Jack Terhune, etc., et al., U.S. Dist. Ct. (7 pp.) In inmate’s suit for injuries he suffered when he fell in prison shower, (1) medical malpractice claim against prison doctor is dismissed for failure to plead with specificity, subject to inmate’s being allowed to amend his complaint within 30 days, and (2) Section 1983 claim against sheriff — alleging that his failure to provide a bath mat violates an existing consent decree — is dismissed, since remedial court orders, which do not create rights, privileges, or immunities secured by the Constitution, cannot serve as a substantive basis for such a claim. DEBTOR/CREDITOR — REMAND 15-7-7157 Chemical Bank v. Steven Wasserman, et al., U.S. Dist. Ct. (4 pp.) Where state court action by bank against debtor was ready for trial, and judge had already rendered partial summary judgment in the case before debtor’s bankruptcy, bank’s motion to remand that adversary proceeding to state court is granted since it will avoid duplication of efforts in the federal court and promote judicial efficiency. ENTERTAINMENT — CABLE BROADCASTS 55-7-7158 Cablevision of Newark v. Club Safari Inc., etc., et al., U.S. Dist. Ct. (9 pp.) In a case where cable company sued club for illegal interception and broadcast of pay-per-view boxing event, cable company’s motion is granted for final judgment by default with respect to club’s liability for violation of the federal cable law, but since the materials submitted do not allow a reasoned assessment of appropriate statutory damages, the case is remanded for a hearing. INSURANCE — ERISA 23-7-7159 Ely v. Home Life Fin. Assurance Corp., et al., U.S. Dist. Ct. (12 pp.) In plaintiff’s case against insurer for denial of claim for Lyme disease treatments (1) plaintiff’s motion to remand is denied, since benefit plan administrator is fiduciary under ERISA, and had the right to remove the action to federal court, and, (2) since the plan qualifies as an employee welfare benefit plan, plaintiff’s state law causes of action, which relate to that plan, are pre-empted by ERISA, and plaintiff’s motion to amend his complaint to set forth an ERISA cause is granted, and the matter is referred to arbitration. SECURITIES — ARBITRATION — LIMITATIONS 50-7-7160 Smith Barney Inc., et al. v. Richard Gilbert, et al., U.S. Dist. Ct. (9 pp.) Although customers allege that the fraud of broker tolled the six-year limitations period contained in Section 15 of the NASD code, this limitation period is jurisdictional, and not subject to being tolled, and broker’s motion to enjoin arbitration of defendants claims is granted. TAXATION — ALTERNATIVE MINIMUM TAX 35-7-7161 Joseph N. Marranca v. I.R.S., U.S. Dist. Ct. (6 pp.) Although the instructions on the tax forms and the descriptions of the alternative minimum tax in an I.R.S. letter may be misleading and incomplete, the statute clearly indicates that the tax assessed in this case was proper, and summary judgment is granted to the Internal Revenue Service.

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