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Vol. 3 No. 212 Decisions Released Nov. 8, 1995 STATE COURT CASES ATTORNEY/CLIENT — FEES 04-2-6957 Weiner Lesniak v. Manuel Feingold, App. Div. (4 pp.) In a suit for counsel fees, although there were problems with law firm’s proofs and indications of overcharging, the jury’s verdict in favor of the firm was supported by the elements of the proofs which showed that it was entitled to compensation, and an order denying client’s motion for a new trial is affirmed. CONTRACTS — SUBCONTRACTORS — SURETY BONDS 11-2-6958 The Dawson Corp., etc. v. Natl. Union Fire Ins. Co. of Pittsburgh., etc., et al., App. Div. (11 pp.) Subcontractor’s suit against bankrupt general contractor’s surety — contending that subcontractor was a “claimant” entitled to payment under the bond — was properly dismissed, since the claim represents labor and materials provided in addition to that expressly required under both the prime contract and the subcontract, which extra work is considered “unauthorized” and therefore subcontractor has no right to look to the bond for payment. [Approved for publication Nov. 8, 1995.] FAMILY LAW — FEDERAL INSURANCE BENEFITS 20-2-6959 Naguib Geo Sedarous, deceased v. Nahed S. Sedarous v. Fouad Girgis, et al., App. Div. (14 pp.) The Federal Employee Group Life Insurance Act does not preclude a New Jersey family court from imposing a constructive trust on FEGLIA proceeds in the same manner as if the insurance in question had been contracted for, and where husband (former ** federal employee) died in the middle of divorce proceedings, the court should not have awarded the insurance proceeds to decedent’s sister on the basis of such preclusion. [Approved for publication Nov. 8, 1995.] INSURANCE — UIM COVERAGE — ARBITRATION 23-2-6960 Karin I. Derfuss v. N.J. Mfrs. Ins. Co., App. Div. (13 pp.) The arbitrator’s determination as to liability in plaintiff’s underinsured motorist claim was binding, and the judge should not have granted plaintiff a trial de novo on both liability and damages, since the policy’s arbitration clause was unambiguous and provided for a right to trial only on damages, and only if the award exceeded the statutory minimum. [Approved for publication Nov. 8, 1995.] LABOR AND EMPLOYMENT — POLICE 25-2-6961 Charles Grimes v. City of East Orange, et al., App. Div. (15 pp.) Since former deputy police chief had no constitutional or statutory right to work only days, have an unmarked car and cellular telephone at his disposal, occupy a particular office, or to automatically become police chief, he has failed to establish the necessary elements of his Section 1983 case against municipal officials, and the portion of the jury verdict awarding compensatory and punitive damages is reversed. [Approved for publication Nov. 8, 1995.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6962 Coralie Scuorzo v. Bd. of Review, et al., App. Div. (4 pp.) Where dentist’s office manager and nurse confronted dentist in his private office with complaints about their employment, and he, becoming exasperated, threw up his hands and said, “everyone leave, just leave,” the fact that office manager left work and made no further contact to determine her actual job status constituted leaving her job without good cause, and she was properly denied unemployment benefits, since board could reasonably have believed dentist’s testimony that he just wanted the employees to get out of his private office, and did not intend to fire them. NEGLIGENCE — HORSE BITE 31-2-6963 Thomas E. Buttgereit v. No Nukes Syndicate, et al., App. Div. (3 pp.) Even assuming that a horse owner had a duty to warn breeding farm of known dangers concerning a horse, it had no such duty to warn each of the farm’s employees, of which plaintiff was one, and summary judgment was properly granted to horse owner on plaintiff’s claim for injuries due to horse bite. NEGLIGENCE — CHARITABLE IMMUNITIES 31-2-6964 Jesse Alexander v. Archdiocese of Newark, et al., App. Div. (4 pp.) In order for the charitable immunity defense to be available, there must be a nexus between the plaintiff and the charitable works of the defendant being performed at the time of the injury, and, since there was no such nexus in plaintiff’s crossing church’s parking lot — where he fell and was injured — summary judgment should not have been granted to archdiocese. NEGLIGENCE — TORT CLAIMS ACT — LATE FILING 31-2-6965 Mark Andalora v. State of N.J., et al., App. Div. (4 pp.) Plaintiff was properly denied leave to file a late notice of claim against the state and municipality, where he delayed contacting a lawyer until more than six months after he was injured when he fell in a large hole in the sidewalk, since his ignorance of the 90-day notice of claim requirement does not constitute a sufficient reason as a matter of law to justify leave for the late filing of such notice, and attorneys’ reasons for the continued delay after they were retained are simply not relevant. PARENT/CHILD — PATERNITY 28-2-6966 Brenda Johnson-Mayfield v. Kevin Jackson, App. Div. (4 pp.) In a paternity suit, the trial judge erred in ordering the father to pay the mother’s prepartum disability payments, since the statute clearly only requires payment of postpartum disability payments. PUBLIC ASSISTANCE 45-2-6967 M.M. v. N.J. Dept. of Human Svcs., etc., App. Div. (6 pp.) Where welfare recipient failed to participate in the required work assignments under the General Assistance Employability Program, he was properly suspended from receiving benefits for 90 days, and his contention that his lack of sleep due to homelessness constituted “good cause” preventing him from working is without merit. PUBLIC EMPLOYEES — CORRECTIONS — LAYOFFS 33-2-6968 In the Matter of Adrienne Barge, et al., App. Div. (18 pp.) Commissioner of personnel’s declaration that the rights of former professional services directors in corrections department were properly determined and that they had no lateral or demotional rights other than those accorded to them is substantially affirmed, with the exception of one aspect of the decision as it relates to one of the directors, which is remanded. PUBLIC EMPLOYEES — MAINTENANCE WORKERS 33-2-6969 Rick Hammond v. Dept. of Bldg. and Maintenance, Hunterdon Cy., App. Div. (3 pp.) Hunterdon County maintenance department acted properly in terminating building maintenance worker — whose driving privileges were suspended upon a conviction of eluding the police — since possession of a valid driver’s license is a requirement for fulfilling the responsibilities of the position, and the lack of such a license made him “unfit” for work. CRIMINAL LAW AND PROCEDURE — WITNESS TAMPERING 14-2-6970 State v. Michael Krieger, App. Div. (10 pp.) Since hindering the prosecution of another by witness tampering is an entirely distinct crime — with totally distinct elements — from hindering the prosecution of oneself by witness tampering, it was error to join the two crimes in a single count of the indictment and to permit the jury to rest a finding of guilt on one or the other. [Approved for publication Nov. 8, 1995.] FEDERAL COURT CASES EDUCATION 16-7-6971 N.P., a minor child by her parents, etc. v. Kinnelon Bd. of Educ., U.S. Dist. Ct. (5 pp.) Since the Individuals with Disabilities Education Act requires a placement calculated to confer some educational benefit — not the optimal education — and plaintiff’s individual educational program in public high school was appropriate for her needs, the fact that a private boarding school environment may have been a better placement is immaterial, and judgment is entered for the board of education on plaintiff’s challenge to that placement. INTELLECTUAL PROPERTY 53-7-6972 Alpine Lace Brands Inc. v. Kraft Foods Inc., et al., U.S. Dist. Ct. (14 pp.) Defendant’s motion for claim interpretation in patent infringement action is granted, since it will narrow the issues for the court and will not affect the schedule or breadth of discovery in the case, and, since discovery will not be affected, plaintiff’s motion to assign the claim interpretation application to the magistrate judge who previously entered the discovery order is denied. LABOR AND EMPLOYMENT — RETIREMENT 25-7-6973 Estate of Edward Karski, etc. v. Anheuser-Busch Cos., U.S. Dist. Ct. (6 pp.) Where deceased employee did not submit eligibility forms for company’s early retirement program before his death, and where family subsequently submitted those forms — allegedly signed by decedent before he died — decision of plan administrator that forms were questionable and insufficient to qualify the family for benefits is affirmed, since such a factual eligibility decision was within the administrator’s discretion under the terms of the plan, and the decision is neither arbitrary nor capricious. LABOR AND EMPLOYMENT — SENIORITY 25-7-6974 Miguel A. Santos v. Van Leeuwen Pipe and Tube Corp., et al., U.S. Dist. Ct. (20 pp.) In a case where plaintiff claims that his employer discriminated against him and breached a collective bargaining agreement — by terminating him and retaining another union member with less seniority — the employer’s motion for summary judgment is granted, since the agreement provides that, in the event of a layoff, an employee with more seniority may displace a less senior worker only if the senior employee has the requisite skills to move into the position of the less senior worker, and plaintiff was not so qualified. MUNICIPAL LAW — NOISE CONTROL — RAILROADS 30-7-6975 The N.Y., Susquehanna and Western Railway Corp. v. Robert Porrino, et al., U.S. Dist. Ct. (20 pp.) Since municipality’s noise ordinance, as applied, conflicts with the federal EPA noise control act and regulations — insofar as its seeks to regulate noise produced by coupling, decoupling, switching, and movement of plaintiff’s trains in a facility located within the municipality — plaintiff’s motion for injunctive relief is granted as to this aspect of the ordinance, however, since the EPA does not explicitly regulate noise from loading and unloading operations, the municipality is not pre-empted from enforcing this part of the ordinance, and plaintiff’s application for injunctive relief in that regard is denied.

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