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Vol. 3 No. 221 Decisions Released Nov. 21, 1995 STATE COURT CASES ATTORNEY/CLIENT — FEES — EXCUSABLE NEGLECT 04-2-7079 Paragano & Keough, P.C. v. Don Kirshner, et al., App. Div. (6 pp.) (1) Since defendants were aware of plaintiffs’ motion for default judgment more than two weeks before its return date and knew that their attorney would not represent them, they should have retained new counsel immediately or appeared at the hearing, and their neglect in waiting until after judgment was entered to hire new counsel is inexcusable; their motion to vacate the judgment, therefore, was properly denied, however, (2) where a fee agreement clearly and unambiguously stated that the plaintiffs would not pursue any family member other than Don Kirshner for fees, Sheila Kirshner has a meritorious defense, and judgment is vacated as it applies to her. (3) Notwithstanding defendants lack of diligence, they should be permitted to obtain judicial review of the reasonableness of plaintiffs’ fees, and the matter is remanded for a hearing in that regard. BANKING 06-2-7080 Murray M. Connell, et al. v. E. River Sav. Bank, etc., et al., App. Div. (16 pp.) Where defendant issued a loan commitment to plaintiffs for waterfront development, although certain conditions of that commitment — which precluded plaintiffs from pursuing litigation in which defendant had an interest and required plaintiffs to provide an easement that would benefit a neighboring development in which defendant had an interest — are in violation of the Bank Holding Company Act, the trial judge properly found that plaintiffs rejected the loan offer for different reasons, and, therefore, suffered no compensable injury as a result of the violations. [Approved for publication Nov. 21, 1995.] EDUCATION — SPORTS 16-2-7081 V.T., etc., et al. v. N.J. State Interscholastic Athletic Ass’n (NJSIAA), App. Div. (10 pp.) The state education commissioner’s final decision — that students are ineligible to participate in interscholastic athletics at their respective high schools — is affirmed, since it is clear that the students transferred to the current schools to avoid discipline after they had been suspended for fighting. FAMILY LAW 20-2-7082 Carolyn Dina v. Salvatore Dina, App. Div. (8 pp.) On husband’s appeal of the equitable distribution portions of a divorce judgment, wife’s share is reduced by (1) the value of a mortgage that originated from the sale of a premarital asset, (2) pizza ovens that were purchased with husband’s money after the parties filed for divorce, and (3) certain condemnation proceeds, because the proceeds were used to satisfy marital debt prior to trial. 20-2-7083 Gisella Dalton v. Harry Lee Dalton, App. Div. (7 pp.) Where a dispute arose between the parties on the division of net settlement proceeds from the sale of the marital home, the judge erred in including taxes in his calculations, since all real estate and sewer charges owed by the parties were deducted at the closing. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7084 Robyn Hubschman v. Jay Hubschman, App. Div. (10 pp.) While defendant may have overreacted by calling the police when he found out that plaintiff had left their two children, ages 11 and 13, alone in the home for a period of time, this call, and the call to plaintiff to berate her for leaving the children alone, do not constitute harassment under the law, and defendant’s conviction for domestic violence is reversed. INSURANCE — VERBAL THRESHOLD 23-2-7085 Mary Wenzel, et al. v. Jessica E. Rowand, et al. v. Thomas Nemec, et al., App. Div. (3 pp.) Where plaintiff’s doctor opined that she had a “possible” compression fracture, and that “there may be a causal relationship between (the injury) and the accident,” such conclusions do not constitute medical findings that plaintiff sustained a fracture as a result of the accident, and her case was properly dismissed. LABOR AND EMPLOYMENT 25-2-7086 In re: the Termination Hearing of Dianthe Martinez, App. Div. (5 pp.) Where accounting assistant for the state Commission for the Blind was terminated, and then later reinstated with full seniority, benefits, and back pay after the Equal Employment Opportunity Commission sustained her sexual harassment claim, her appeal for reimbursement of attorneys fees and medical expenses incurred during her layoff, were properly denied. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7087 Joan Ardizzone v. Bd. of Review, etc., App. Div. (2 pp.) Where worker left her job because she did not want to work nights, even though her job required her to do so, she did not leave for good cause attributable to the work, and was properly denied unemployment compensation benefits. 25-2-7088 Barbara Watt v. Bd. of Review, et al., App. Div. (3 pp.) Where bus driver refused to work for a company which had offered her interim employment while she awaited return to her regular employer, her refusal to work was without good cause, and she was properly denied unemployment compensation benefits. 25-2-7089 Sharon R. Allen v. Bd. of Review, et al., App. Div. (2 pp.) Where worker was warned repeatedly that she was expected to cover her shift with a substitute, and where she replied in an insubordinate manner and did not procure a substitute, worker was discharged because of misconduct and was properly denied unemployment compensation benefits. 25-2-7090 Margaret A. Fila v. Bd. of Review, App. Div. (7 pp.) The Board of Review misunderstood the nature of grocery store cashier’s medical problems and misinterpreted the clear meaning of her doctor’s unrebutted diagnosis of heart problems and the attribution of a causal connection to her work, and, therefore, the decision disqualifying her for unemployment compensation benefits is reversed. NEGLIGENCE — PROXIMATE CAUSE 31-2-7091 Tricia Banis, et al. v. The Shawnee Group, etc., App. Div. (2 pp.) Although plaintiff’s expert indicated that the stairs and handrail in defendant’s hotel were defective and poorly lit, since plaintiff did not present any evidence that the hotel’s negligence was a proximate cause of her fall, her case was correctly dismissed. PARENT/CHILD 28-2-7092 Div. of Youth and Family Services v. S.M.P. and C.P., App. Div. (4 pp.) Since DYFS had proved by a preponderance of the evidence that parents had abused or neglected their children, the trial judge did not err in ordering DYFS’s continued intervention to protect the children, as well as to assist parents in coping with their parental obligations with the hope of reuniting the family, and decision to keep one child in foster care and prohibit visitation for that child, is supported by the evidence and affirmed. 28-2-7093 In the Matter of the Guardianship of B.K.C., App. Div. (5 pp.) Judgment terminating father’s parental rights is affirmed, since DYFS’s substantial, even heroic, efforts to reunite the family proved totally unavailing, and father, an alcoholic, showed neither an understanding of his son’s special needs and limitations nor a sincere commitment to care for his son in a stable environment, and also since father has been in trouble with the law on several occasions, and is presently incarcerated. PUBLIC EMPLOYEES — CORRECTIONS 33-2-7094 Yvonne Simmons v. N.J. State Prison, etc., App. Div. (4 pp.) Merit System Board’s decision to uphold the state Department of Corrections in removing nurse from her employment at state prison is affirmed, since there was ample evidence that nurse had violated a performance standard prohibiting prison employees from becoming “unduly familiar” with inmates when she developed a relationship with a parolee. REAL ESTATE — HOME INSPECTIONS 34-2-7095 Cornelius J. Dwyer III, et al. v. Foresight Engineering Inc., etc., et al., App. Div. (4 pp.) Although the jury’s verdict is affirmed — since home inspector was negligent in not advising home buyers that evidence of dry rot should be further investigated — the matter is remanded for the judge to state his findings of fact supporting his conclusion that buyers’ damages were $28,000. TAXATION 35-2-7096 CES Assocs., et al. v. Cranbury Twp.; Creston Assocs. v. S. Brunswick Twp., App. Div. (4 pp.) Despite plaintiff’s argument, the statutory Aug. 1 deadline for the filing of a farmland assessment application is mandatory, must be strictly complied with, and may not be discretionarily extended other than for two specific statutory grounds and, since plaintiff did not comply with the filing deadline, denial of its application for farmland assessments was proper. CRIMINAL LAW AND PROCEDURE — INEFFECTIVE COUNSEL 14-2-7097 State v. James Powers, App. Div. (14 pp.) In concluding that defense counsel had made a defensible, tactical decision not to call an available witness, the trial judge failed to consider the apparently flawed analysis by which defense counsel arrived at that decision and, based upon counsel’s misconception of the testimony of a key state witness, defendant had rebutted the strong presumption of effective assistance of counsel, and his conviction is reversed. CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-7098 State v. Mark Bickham, App. Div. (4 pp.) Although the police inadvertently executed a search warrant about 39 minutes earlier than authorized by the issuing judge, this technical violation did not infringe upon defendant’s privacy rights, and a motion to suppress evidence obtained in the search was properly denied. [Approved for publication Nov. 21, 1995.] 14-2-7099 State v. Cameron T. Height, App. Div. (4 pp.) Although state trooper was justified in stopping vehicle for a motor-vehicle infraction, when he was informed by a municipal police officer that the vehicle’s driver might have a weapon, the trooper’s search of a small paper bag found in the car’s back seat was improper, since it is difficult to conceive how the bag could have contained a weapon and, since the trooper exceeded the permissible scope of the search, the drugs found in the bag should have been suppressed. FEDERAL COURT CASES INSURANCE — INDEMNIFICATION FOR LITIGATION COSTS 23-7-7100 Lake Area Health Sys. Inc., et al. v. Royal Indemnity Co. v. Health Care Ins. Exch., U.S. Dist. Ct. (10 pp.) Plaintiffs’ motion for summary judgment against insurer — seeking indemnification of costs of defending suit brought by radiologist allegedly forced out of practice by plaintiffs — is denied because, although coverage is provided for named defendants who were employees acting within the scope of their employment, the suit also includes claims brought against unknown employees, and plaintiffs have not given the insurer the required notice regarding these claims. JURISDICTION — ERISA — REMAND 24-7-7101 Laborers’ Local Union Nos. 472 & 172, et al. v. Big Boot Constr. Co. Inc., et al., U.S. Dist. Ct. (6 pp.) In a case where contractor failed to pay pension benefit contributions and related payments, and was sued with its surety bond company by the union pension funds, the latter’s motion to remand the case to state court is granted, since the applicable state law — the New Jersey Bond Act — has a tenuous, remote or peripheral connection with ERISA-covered plans and, therefore, ERISA does not preempt state law. LANDLORD/TENANT — MOTIONS FOR REARGUMENT 27-7-7102 Net Realty Holding Trust v. Consumers Discount Inc., et al., U.S. Dist. Ct. (7 pp.) Where plaintiff moves for reargument of a portion of an order granting summary judgment to assignor of defendant/tenant, and defendant/tenant moves for reargument of denial of its motion for a set-off or rent, both motions are denied, since neither party has presented new information, but simply asks the court to rethink what it already has considered thoroughly. (See DDS No. 27-7-6787 in the Alert dated Oct. 19, 1995 for the prior opinion.) LANDLORD/TENANT–RACIAL DISCRIMINATION–”MRS. MURPHY” 27-7-7103 Toy J. Younge, et al. v. Lee Frischberg, et al., U.S. Dist. Ct. (14 pp.) In a case where plaintiffs allege that landlords refused to rent them an apartment because of their race, the landlords’ motion for summary judgment based on the “Mrs. Murphy” exemption — which provides that the prohibition on discriminatory rental practices does not apply to certain owner-occupied premises — is denied, since the exemption is limited only to claims brought under 42 U.S.C. 3604 and does not apply to plaintiffs’ Sections 1981 and 1982 claims, and since the court declines to read the exemption to cover ownership by trust.

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