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Vol. 3 No. 225 Decisions Released Nov. 29, 1995 STATE COURT CASES CIVIL PROCEDURE — VACATING DEFAULT 07-2-7162 Helen Douglas, et al. v. Rader Realty, et al., App. Div. (3 pp.) Defendant’s motion to vacate default should not have been denied for a failure to show excusable neglect under R. 4:50-1(a), since that rule deals with vacating default judgments, not defaults, and R.4:43-3, which pertains to defaults, requires only a showing of good cause. CONSUMER PROTECTION — TELEMARKETING 09-10-7163 Constance Szefczek, pro se v. Hillsborough Beacon, Special Civil Part (25 pp.) Since there was a substantial government interest in protecting residential privacy that was directly advanced by the Telephone Consumer Protection Act, and the act and its regulations are sufficiently narrowly tailored, the act is constitutional, and because the defendant’s actions clearly violated the act, plaintiff is entitled to an injunction and damages, but since plaintiff has not alleged willful violation, her request for treble damages is denied. [Approved for publication Nov. 28, 1995.] FAMILY LAW 20-2-7164 J.S. v. D.M., App. Div. (3 pp.) In a case where child’s parents never married (1) since father has failed to meet his burden of rebutting the strong presumption that the child’s surname — elected by the mother/custodial parent — is in the child’s best interest, order denying his request to change the surname to his own is affirmed, and (2) the judge also was correct in establishing — over mother’s objection — a flexible visitation schedule for the father, and requiring both parents to communicate on major decisions affecting the child. [Approved for publication Nov. 29, 1995.] INSURANCE — P.I.P. — ARBITRATION 23-2-7165 Rutgers Casualty Ins Co., etc. v. Transp. Ins. Co., etc., et al., App. Div. (11 pp.) Since there was a serious dispute between carriers regarding coverage, which was not resolved until the P.I.P. insurer was first able to review the language of the other carrier’s policy, the trial judge correctly applied the discovery rule and concluded that the statute of limitations did not begin to run until the policy was “obtained and reviewed,” and, therefore, the P.I.P. carrier’s request for arbitration of its claim for reimbursement of P.I.P. benefits paid was timely. INSURANCE — U.I.M. — EXCESS CARRIERS — NOTICE 23-3-7166 Prudential Property and Casualty Co. v. Keystone Ins. Co. of N.J., Law Div. (9 pp.) Since recovery of UIM benefits under Longworth v. Van Houten, 223 NJ Super. 174 (App. Div. 1988) depends on notice to one’s own UIM carrier that the tortfeasor has offered a settlement, the court holds that, if the noticed carrier takes the position that its policy is excess or “co-primary,” it, not the insured, has the duty to relay that notice to the alleged primary carrier and provide that carrier reasonable time to consent to or tender the settlement amount to protect its subrogation rights. [Approved for publication Nov. 28, 1995.] WORKERS’ COMPENSATION 39-2-7167 Anthony Snavely v. Christopher/Glanzman, et al.; Anthony Snavely v. Living Praise Church, App. Div. (14 pp.) The record amply supports the judge’s factual findings and legal conclusions that a workers’ compensation insurance contract was effective at 12:01 a.m. on Feb. 1, 1994, as stated in the policy, subject to the condition of payment of the premium on Feb. 1, 1994, irrespective of the actual time of payment; therefore the judgment enforcing coverage for petitioner’s accident, which occurred on the morning of Feb. 1, 1994, is affirmed. FEDERAL COURT CASES ALCOHOLIC BEVERAGES — CASINOS 47-8-7168 Ayhan Hakimoglu v. Trump Taj Mahal Associates, et al., Third Cir. (41 pp. — including dissenting opinion) Under N.J. law, a casino patron may not recover gambling losses from a casino that were caused by the casino’s conduct in serving alcoholic beverages to the patron and allowing the patron to continue to gamble after he became obviously intoxicated; the district court’s dismissal of patron’s complaints is affirmed. BANKRUPTCY 42-6-7169 In re: Landmark Distrib. Inc., Alleged Debtor, U.S. Bankruptcy Ct. (89 pp.) Since the court finds that the actions of three petitioning creditors were wholly unreasonable, motivated by spite and malevolence, and that the involuntary bankruptcy petition was wrongfully filed, resulting in the shutdown of the alleged debtor’s business, (1) judgment is entered against the three creditors for debtor’s attorneys’ fees and costs, (2) $3.2 million in compensatory damages are awarded to debtor against two of the creditors, and (3) since one of the creditors acted in egregious bad faith, $500,000 in punitive damages is assessed against this creditor. [For publication.] CIVIL RIGHTS 46-7-7170 Shawn Hines v. Seton Hall Univ., et al., U.S. Dist. Ct. (13 pp.) In a case where expelled law student has sued the school pro se, alleging civil rights violations from his expulsion, (1) although school did not file an answer to the second amended complaint, the court finds that the default most likely resulted from the general procedural confusion surrounding this case, and, further, since the issues raised in the second amended complaint mirror those of student’s motion for a preliminary injunction, which school has answered in detail, no prejudice will result from the failure to answer, and student’s motion for default judgment is denied; and (2) student’s motion for a preliminary injunction on constitutional grounds — to allow him to take his exams and rematriculate immediately — is also denied, since he has not proved racial discrimination, or that school acted under color of state law, and the school’s reasons for expelling him — his mental problems and behavior — are not pretextual, but belie a legitimate concern that student was dangerous to himself and others, and that he needed psychological counseling. 46-7-7171 Al-Wahid Ali v. Officer Michael Person, et al., U.S. Dist. Ct. (11 pp.) Where plaintiff alleges that police officers, individually, and as part of a conspiracy, deprived him of his liberty, allegedly because they knew of one of the officer’s sister’s claim that plaintiff raped her, (1) the conspiracy count is dismissed since plaintiff has not alleged a motivation by some racial or class-based discriminatory animus, (2) the perjury count against one officer is dismissed because federal witnesses are entitled to absolute immunity, (3) the motions for summary judgment of the municipality and the police department are granted, since there is no respondeat superior in section 1983 actions, however (4) the motion to dismiss the assault count against the officer who was the alleged rape victim’s brother is not granted, since there is sufficient evidence of an assault to survive the motion, and the minor nature of the altercation is something for a jury to weigh. [For publication.] LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-7172 Jacqueline Baumann, et al. v. Tokyu Travel America, Inc., et al., U.S. Dist. Ct. (8 pp.) Since there are material issues of fact in dispute concerning plaintiffs’ claims that they were discriminated against by their Japanese employer in favor of Japanese employees, summary judgment is denied to defendants.

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