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Vol. 3 No. 216 – NOVEMBER 14, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-2-7012 Purzycki & Gorney v. Ted Clark, App. Div. (5 pp.) Since client’s excuse for failing to file answer to law firm’s complaint for legal fees — i.e., that he was unaware that he had a negligence defense — does not constitute excusable neglect, the motion judge properly denied him permission to vacate default, and client can still pursue his legal malpractice claim separately. ENVIRONMENT 17-2-7013 Brookside Nursery v. Dept. of Environmental Protection, etc., App. Div. (33 pp.) DEP properly denied nursery a permit to fill an allegedly man-made drainage ditch, concluding that it was a natural intermittent stream, and nursery must therefore apply for an individual freshwater wetlands permit. INSURANCE — P.I.P. 23-2-7014 Jose M. Aguiar, et al. v. Prudential Property and Casualty Ins. Co., App. Div. (6 pp.) Complaint seeking an order to compel arbitration for underinsured motorist coverage was properly dismissed since plaintiffs received $15,000 (the amount of their UIM coverage)from the other vehicle in the accident, but complaint seeking PIP benefits was should not have been dismissed, since there are fact questions about the effect of a prior court order staying the PIP suit pending disposition of related federal litigation. INSURANCE — VERBAL THRESHOLD 23-2-7015 Michael Magner v. Louis Azrak, App. Div. (6 pp.) Summary judgment to defendant was proper based on finding that plaintiff did not demonstrate medical evidence of a causal relationship between his herniated disc and the accident, and doctor’s opinion of permanency was based on subjective “residual symptomology.” LANDLORD/TENANT 27-2-7016 Emanuele Sgaramella, et al. v. Kate Goeser, App. Div. (4 pp.) Where landlords attempted to circumvent statute — forbidding eviction unless an “owner” wishes to occupy the unit — by conveying part of the unit to their son and then attempting to evict tenant allegedly so that son could occupy the unit, judgment in favor of tenant was proper. LAND USE 26-2-7017 Eleanor Mercurio, et al. v. Richard DelVecchio, Jr., et al., App. Div. (10 pp.) Grant of variance to nursing home owner to expand a non-conforming use is affirmed since there was no error in Board of Adjustment’s (1) permitting a newly appointed member, who had not participated in the first of three Board meetings, to participate and vote in the variance or (2)refusing to grant adjournment due to illness of an objector. [Approved for publication Nov. 14, 1995.] 26-2-7018 Jesse Rosenblum v. Palisades Pre-School, et al., App. Div. (5 pp.) Challenge to school’s site plan approval was properly dismissed as time-barred, and plaintiff’s contention that his application should be deemed an exception to the limitations rule since it involves an “important public rather than private interest” is without merit. PARENT/CHILD 28-2-7019 Div. of Youth and Family Svcs. v. S.T., et al., App. Div. (5 pp.) Mother’s parental rights were properly terminated since, despite attending classes to acquire parenting skills, she has demonstrated an inability to absorb and apply them, and the children, despite their professed wish to be returned to their mother, have begun to make progress in their foster placements and only backslide when they visit with the mother. PHYSICIAN/PATIENT 29-2-7020 David Duerr, Executor, etc. v. Lawrence Floriani, M.D., App. Div. (30 pp.) The judge did not abuse his discretion in refusing to allow plaintiff to read into evidence portions of defendant’s experts’ reports, because the judge correctly found that the evidence did not constitute adoptive admissions pursuant to R. 4:20-1(d) and N.J.R.E. 803(b)(2), and jury verdict of no cause is affirmed. 29-2-7021 Lisa B. Davis, etc. v. Brian Keller, D.O., et al., App. Div. (5 pp.) Where plaintiff failed to raise the issue at trial, court cannot entertain post-verdict argument that no-cause in malpractice case was tainted because one of the jurors allegedly harbored prejudice against plaintiff’s lawyer’s firm and testified falsely about it on voir dire. PHYSICIANS — VETERINARIANS 29-2-7022 In the Matter of Suspension or Revocation of License of Samuel Rubin, D.V.M., etc., App. Div. (4 pp.) Board of Veterinary Medical Examiners properly suspended a license for one year for veterinarian who anesthetized a cat to remove a urinary tract obstruction and then abandoned the cat and refused to complete the procedure and because the owner would not fill in financial responsibility forms. PRODUCT LIABILITY — ASBESTOS 32-2-7023 Dorothea Palmer, etc. v. Owens-Corning Fiberglas Corp., et al., App. Div. (6 pp.) Wrongful death action was improperly dismissed as barred by two-year statute of limitations, since there is no evidence that decedent was ever told by his doctors that his lung cancer was caused by his exposure to asbestos and thus no basis on which he should have known that he had an actionable claim during that period. REAL ESTATE — COOPERATIVES — SUBLETTING 34-2-7024 Estate of George Mesnick, et al. v. 2000 Linwood Ave. Owners, Inc., et al., App. Div. (4 pp.) Cooperative board’s refusal to allow ailing unit owner to let his children sublet his unit when he suffered a stroke and was put in a nursing home, however unkind, was based on strong discretionary powers in the proprietary lease, was not a breach of the parties’ agreement, and was not discriminatory. REAL ESTATE — DEVELOPERS — REPRESENTATIONS 34-4-7025 Woodcrest at Lambertville Assn., Inc., et al. v. Pulte Home Corp., et al., Chancery Div. (20 pp.) Homeowners’ application for restraints on contractors auctioning off unsold townhouses in the development is denied, since builder did not guarantee that homes would never be sold to purchasers outside the “target group” to which the homes were marketed or that homes would never be sold below a certain price, and homeowners have not proved that the auction would definitely alter the character of, or property values in, the community, thus causing them irreparable damage. TORTS — TORT CLAIMS ACT 36-2-7026 Antonio Abano v. Twp. of Piscataway, etc., App. Div. (9 pp.) Although the trial court applied the wrong standard governing sufficiency of reasons for failure to file a timely notice of claim, it correctly found that claimant’s reasons were insufficient, since claimant who was injured when he slipped and fell on ice was not so incapacitated that he could not have timely filed his notice. WORKERS’ COMPENSATION 39-2-7027 Thomas Devine v. Zack Painting Co., Inc., etc., et al., App. Div. (11 pp.) There is no statutory or case law basis for the compensation judge’s conclusion that petitioner’s occupational disease claim was tolled while he was still exposed in his employment to the same toxins and irritants, and claim should have, therefore, been barred on jurisdictional grounds for lack of timeliness; however, dismissal for failure to prove a permanent disability stands. CRIMINAL LAW AND PROCEDURE 14-2-7028 State v. Rosa I. Morrison, App. Div. (5 pp.) Remand for determination of propriety of use of private prosecutor in municipal court shoplifting trial was appropriate, since it was only after the trial that the state Supreme Court established procedures governing appearance of attorneys as private prosecutors. 14-2-7029 State v. Christopher Graham, App. Div. (6 pp.) Judge committed reversible error when he received an ambiguous request from the jury for clarification, and he failed to clear the confusion by asking the jury the meaning of its request. [Approved for publication Nov. 14, 1995.] FEDERAL COURT CASES LABOR AND EMPLOYMENT — ARBITRATION 25-7-7030 In the Matter of the Arbitration between Bloomfield College Chapter AAUP and Bloomfield College, U.S. Dist. Ct. (6 pp.) Arbitrator correctly found that college violated collective bargaining agreement by denying teacher’s request for a study leave and granting her a terminal contract, and his order that she be reinstated with back pay is confirmed. MUNICIPAL LAW — FEDERAL PREEMPTION — MOTOR CARRIERS 30-7-7031 426 Bloomfield Avenue Corp., etc., et al. v. City of Newark, U.S. Dist. Ct. (25 pp.) Where a municipal ordinance, which established a rotational system and requirements for the city’s non-consensual towing needs, was challenged by towing contractors as pre-empted by the Federal Aviation Administration Authorization Act’s prohibition on state and local regulation of trucking prices, routes, and services, dismissal is granted to defendant, since a tow truck does not fall within the definition of federally-regulated “motor carrier” or “motor private carrier.” [For publication.]

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