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Vol. 3 No. 215 – NOVEMBER 13, 1995 STATE COURT CASES CIVIL PROCEDURE — FRIVOLOUS ACTIONS — COUNSEL FEES 07-2-6989 Jesse Rosenblum v. Borough of Closter v. Miele Sanitation Co., App. Div. (18 pp.) Where plaintiff deliberately failed to join sanitation contractor, an indispensable party, and contractor became a third-party defendant and suffered hardship as a result of frivolous litigation, it is entitled to counsel fees, and trial court’s denial of same on the ground that the contractor was not a direct defendant is reversed. [Approved for publication Nov. 13, 1995.] CONSTRUCTION — SETTLEMENTS 43-2-6990 Holly Lake Park Residents Assoc. v. Joseph A. Courter, Jr., et al., App. Div. (9 pp.) Where the judge lacked personal knowledge of whether counsel definitively agreed to a settlement or to the terms of a settlement, he erred in granting a motion to enforce the settlement. CONTRACTS — BOAT SLIPS — TITLE 11-2-6991 Eugene Berger v. John E. White, et al., App. Div. (5 pp.) Owner of “dockominium” — a marina boat slip owned as condominium — could not deliver clear title, since the deed from which he took title had been signed by only one of two joint venture participants, and contract purchaser was properly awarded the return of his deposit. EDUCATION — ARBITRATION 16-2-6992 Bloomfield Bd. of Education v. Bloomfield Education Assn., App. Div. (7 pp.) Where school board had collectively bargained with teachers’ association with respect to the credit a new teacher would receive for his prior teaching experience, the board was not free to negotiate a separate arrangement with the teacher so as to undercut the association’s bargaining position. EDUCATION — PENSIONS 16-2-6993 David Scott Robertson, Executor, etc. v. State, Dept. of the Treasury, etc., App. Div. (4 pp.) Where evidence did not support son’s contention that his father was incompetent from AIDS-related mental deterioration at the time when he made the election to receive larger monthly retirement payments, thus denying his son the right to any unpaid pension at father’s death, Board of Trustees of the Teachers’ Pension and Annuity Fund’s refusal to reform the pension is affirmed. FAMILY LAW 20-2-6994 Virginia E. Hayles v. Edward C. Green, App. Div. (5 pp.) Motion judge erred in failing to grant wife’s request for an increase in alimony and an award of counsel fees since there were prima facie showings of profound medical and emotional problems which rendered wife disabled and unemployed for three years, husband’s income had increased, and wife’s living standards had deteriorated markedly, and matter is remanded for a Lepis hearing. 20-2-6995 Andrew Lipka v. Gabrielle Strich, App. Div. (12 pp.) Denial of wife’s application for child support primarily on the ground that her income had increased is reversed and remanded for a plenary hearing, for if wife’s lack of income during the marriage remained the touchstone for comparison purposes, she would never be able to demonstrate changed circumstances. INSURANCE — VERBAL THRESHOLD 23-2-6996 Diane Van Dien v. Michael A. Homoky, App. Div. (6 pp.) Plaintiff’s argument that verbal threshold does not apply to her injuries because defendant was driving a commercial van is without merit, since it is the type of vehicle which controls, rather than the ownership of the vehicle or the use to which it is put. 23-2-6997 Lociano Benjamin v. Michael J. Risoldi, App. Div. (4 pp.) Plaintiff’s case was properly dismissed on summary judgment since his complaints of some pain, and inability to lift heavy bags or “play a little soccer from time to time” as he used to, were insufficient to show a serious impact on his life. 23-2-6998 Brad Morris v. Masayuki Tsujimoto, App. Div. (3 pp.) While a motion for reconsideration tolls the running of the time to file an appeal, it does not establish a new 45-day period for such filing following the date of an order denying reconsideration, and, therefore, plaintiff’s appeal of summary judgment order was out of time. JURISDICTION 24-2-6999 Robert G. Pfundstein v. Omnicom Group, Inc., App. Div. (10 pp.) Order denying company’s motion to dismiss plaintiff’s suit for enforcement of a severance agreement is reversed for lack of personal jurisdiction, because (1) salary continuation agreement between defendant and plaintiff is connected to N.J. only by the interstate phone and mail communications which led up to it and (2) company does not dominate or control its subsidiaries — which advertise in N.J. — in such a manner as to disregard their independent corporate existence. [Approved for publication Nov. 13, 1995.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7000 Kathy Bollinger v. Bd. of Review, et al., App. Div. (4 pp.) Where claimant, being aware that she would have eventually been terminated since she was unable to report to work regularly due to unresolved child care problems, resigned from her job, Appeal Tribunal correctly concluded that she resigned due to child care problems, not for a reason attributable to her work. LANDLORD/TENANT 27-2-7001 Willa McNeill, et al. v. The Estate of Paul Lachmann, t/a The Alexander Hamilton Hotel, et al., App. Div. (8 pp.) Protection of the Anti-Eviction Act should have been extended to hotel resident who lived at defendant’s hotel for over three years and evidenced no present intention of seeking other accommodations, since this made her a permanent tenant, not a transient guest. [Approved for publication Nov. 13, 1995.] 27-2-7002 Daniel Collins v. Michael Albro, App. Div. (4 pp.) Tenant was properly entitled to deduct from his rent the amount of overcharge determined by the Jersey City Rent Leveling Board, and the trial court erred in granting landlord a judgment for possession based upon tenant’s non-payment of full rent. LAND USE 26-2-7003 Libonati Realty Co., etc. v. The Planning Bd. of the Twp. of Warren, et al., App. Div. (5 pp.) Trial court did not abuse its discretion in concluding that planning board’s expansion of the residential zone to include the subject property, thus rezoning it from industrial use, was consistent with the master plan’s comprehensive recommendations and objectives. NEGLIGENCE — TORT CLAIMS ACT 31-2-7004 Roseann Accardi v. Dominick A. Soldo, et al., App. Div. (5 pp.) Order granting partial summary judgment, dismissing plaintiff’s claim for pain and suffering for failing to satisfy the “permanent loss of a bodily function” threshold of N.J.S.A. 59:9-2d, is reversed since plaintiff’s tooth fracture was only temporarily repaired, and her back and neck injuries can constitute a permanent loss of a bodily function under the statute. PHYSICIANS — LICENSES 29-2-7005 In the Matter of the Suspension or Revocation of the License of William C. Cham, M.D., etc., App. Div. (10 pp.) Where evidence showed that radiation oncologist engaged in a continued course of sexual harassment and retaliation against two employees, and acts of physical assault on and verbal abuse of a third employee, all of which had an adverse impact on patient care, suspension of doctor’s license for five years was proper. PHYSICIANS — RECORDS 29-2-7006 Guillermo Garcia, et al. v. Richard R. Lubow, etc., App. Div. (8 pp.) Where law firm and chiropractor agreed that chiropractor would treat law firm’s clients and render reports, and after a billing dispute arose, chiropractor refused to furnish medical records and reports to law firm’s clients, (1) chiropractor was correctly ordered to release records to clients, as patients have a legal right to their medical records, however, (2) chiropractor should not have been compelled to prepare reports and prognoses for these clients, and that aspect of the trial judge’s order is reversed. PUBLIC EMPLOYEES 33-2-7007 Twp. of Bridgewater, et al. v. Bridgewater PBA Local No. 174, et al.; Twp. of Bridgewater, et al. v. Bridgewater Municipal Employees Assn.; Twp. of Bridgewater, et al. v. Bridgewater Public Works Assn., App. Div. (11 pp.) The Public Employee Relations Commission’s order, directing the municipality to terminate the deductions for HMO premiums and to negotiate in good faith over those payments, is affirmed since the municipality committed an unfair practice by unilaterally altering the terms of the governing collective bargaining agreements in collecting payroll deductions from those employees who selected an HMO as their health care coverage option. REAL ESTATE 34-2-7008 Phillip S. Barbour, et al. v. Steven D. Catalano, App. Div. (7 pp.) Since there were questions of fact, namely, whether buyers fraudulently or intentionally omitted information about their prior bankruptcy and credit problems in the financial disclosure forms presented at time of contract, and whether seller relied on these misrepresentations, summary judgment ordering seller to return deposit — held as liquidated damages — is reversed. 34-2-7009 Victor Greco, et al. v. Annette Zecchino, App. Div. (5 pp.) Where contract buyers paid over $95,000 to seller by way of a deposit and monthly payments toward completion of a $165,000 real estate purchase but were unable to close, and they sued owner for return of the monies advanced, the trial judge correctly ordered a new trial when the jury awarded further damages to the seller on her breach-of-contract counterclaim, since it is inequitable for her to retain both title and the $95,000. TAXATION — WATERSHED PROPERTIES 35-2-7010 City of Newark, et al. v. Twp. of Hardyston, App. Div. (14 pp.) Given the clear legislative intent to safeguard the interests of water quality, open space, recreation and conservation, Watershed Protection Act’s moratorium on the conveyance of watershed property is still in effect despite the fact that the Legislature has not yet enacted a permanent program to deal with the tax inequities, and the moratorium must be a factor to be considered in valuing watershed land for tax purposes. [Approved for publication Nov. 13, 1995.] CRIMINAL LAW AND PROCEDURE — CONSTITUTIONAL LAW 14-2-7011 State v. P.Z., App. Div. (13 pp.) Although DYFS investigation of potential child abuse charge against defendant was not an investigation by a law enforcement officer in a custodial criminal setting, the circumstances were tantamount to an invocation of his right to counsel, and statements made by defendant to DYFS investigator were properly barred from use against him. [Approved for publication Nov. 13, 1995.] A

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