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Vol. 3 No. 209 Decisions Released Nov. 3, 1995 STATE COURT CASES ADMINISTRATIVE LAW — UTILITIES 01-2-6926 In the Matter of the Petition of Valley Road Sewerage Co., etc., App. Div. (10 pp.) The Board of Public Utilities may deny or curtail rate relief to a public utility based upon that utility’s failure to furnish adequate services over an extended period of time, notwithstanding the fact that operating losses will inevitably follow from the denial. [Approved for publication Nov. 3, 1995.] FAMILY LAW 20-2-6927 Glenn Elliott v. Priscilla Elliott, App. Div. (4 pp.) Since the trial court did not have an adequate basis, in the absence of additional documentary proofs and a plenary hearing, to conclude that alimony should be increased, the modification award is reversed. INSURANCE — VERBAL THRESHOLD 23-2-6928 Mihail Bouloumbasis v. Frank J. Rubatti, App. Div. (5 pp.) Since it is arguable — from plaintiff’s doctor’s findings of muscle spasm, herniated disc and limitation of range of motion, which the doctor connected to the accident — that plaintiff has sufficiently demonstrated a nexus between his injuries, the accident, and his resultant disabilities to withstand summary judgment, the trial judge’s granting of summary judgment to the defendant is reversed. INSURANCE — VERBAL THRESHOLD — MEDICAL EVIDENCE 23-2-6929 Janet Pollock v. John E. Gordon, et al., App. Div. (8 pp.) Although medical expert testimony generally requires a “reasonable probability” foundation when the testimony is to be used to prove a fact, where testimony’s purpose merely is to discredit or cast doubt on the type of injury alleged, the technical requirement need not be strictly followed, and the trial judge did not err by failing to grant plaintiff’s motion to strike the testimony of defendant’s two medical experts for failure to characterize their opinions as being “within a reasonable degree of medical certainty.” LANDLORD/TENANT 27-2-6930 Tammy Tamar Fadael v. Linda Storie, App. Div. (3 pp.) The trial judge, finding that landlord had not made a sufficient effort to re-rent property after tenant vacated, properly concluded that there were no damages due to the landlord for the balance of the lease term, and, further, the judge’s finding that landlord’s agent had not carried her burden of proving that the tenants had damaged the premises is supported by substantial credible evidence and is affirmed. NEGLIGENCE — REMARKS OF COUNSEL 31-2-6931 Marlene Groome v. Shopping Developers Ltd., etc., App. Div. (3 pp.) Statements made by defense counsel in his opening, when taken in context, were not concessions or admissions of negligence, but only offered hypotheses to suggest that, even if the jury were to find the defendant negligent, it would be persuaded by other proofs that no injury, or a less severe injury, occurred, and jury verdict, finding no negligence, is affirmed. REAL ESTATE — BROKERS 34-2-6932 Prudential Stewart Realty v. Michael Sonnenfeldt, App. Div. (8 pp.) The motion judge properly dismissed broker’s complaint for commission because broker was not the efficient producing cause of the sale, the implied covenant of good faith and fair dealing do not override the fact that the contract did not require seller to refer other prospective buyers to the broker during the contract term, and the seller did not enter into a contract with the buyer until after the listing agreement had been properly terminated. [Approved for publication Nov. 3, 1995.] 34-2-6933 Margaretten & Co. Inc. v. Pyramid Constr. Co., App. Div. (4 pp.) Where broker brought a Burger King franchiser to shopping center, but franchiser had financial difficulty and assigned its lease to another Burger King franchiser, shopping center still owed broker a commission, despite the fact that the tenant was a different one, since broker was the procuring and efficient cause of the lease transaction. REAL ESTATE — FORECLOSURE 34-2-6934 Chemical Bank N.J., etc. v. 191 Mill Lane Partnership, et al., App. Div. (12 pp.) Where defendants filed their motion to vacate default judgment in foreclosure action more than one year after the entry of the judgment, they were correctly precluded from relief, and their motion to vacate the sheriff’s sale also was properly denied because the court was satisfied that defendants, despite their contention to the contrary, had actual notice of the sale. CRIMINAL LAW AND PROCEDURE 14-2-6935 State v. Fred Jackson, App. Div. (7 pp.) The judge erred in failing to charge the jury on all forms of simple assault as requested, as well as in his failure to instruct the jury that, if defendant’s purpose in possessing a golf club was to protect himself, he could not be convicted of possession of a weapon for an unlawful purpose. FEDERAL COURT CASES LABOR AND EMPLOYMENT — ERISA — REMOVAL AND REMAND 25-7-6936 Dulce Lopes v. K-Mart Corp., etc., et al., U.S. Dist. Ct. (10 pp.) Since defendant’s notice of removal does not state when it first received, through service or otherwise, a copy of the initial pleading setting forth the claim upon which the instant action is based, but only sets forth the date of service of the complaint, the notice is defective and the matter is remanded. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-6937 Mia Moore v. Metromedia Communications, U.S. Dist. Ct. (36 pp.) Since plaintiff has failed to show that her employer’s proffered reasons for failing to promote her are pretextual or discriminatory, the employer’s motion to dismiss the discriminatory failure-to-promote counts of the complaint is granted, however, since there are fact questions regarding plaintiff’s allegations of discriminatory retaliation, the motion to dismiss these counts is denied. LABOR AND EMPLOYMENT — SOCIAL SECURITY DISABILITY 25-7-6938 Margarita Pastor v. Shirley S. Chater, Comm’r of Social Security, U.S. Dist. Ct. (20 pp.) The administrative law judge improperly concluded that sewing machine operator had no exertional limitations due to her asthma and bladder problems, and that she had the capacity to perform medium or light work simply because the physician’s report did not mention or analyze any limitations; an occupational specialist is required on remand to determine whether plaintiff has the capacity to perform specific jobs that exist in the national economy. NEGLIGENCE 31-7-6939 Robert Sinclair, et al. v. Guy S. Dunagan, et al., U.S. Dist. Ct. (19 pp.) Where plaintiff alleged that township and utility company were negligent in failing to maintain a street lamp in proper working order, which caused his accident and injuries by reducing visibility, (1) because the township was not properly notified of the claim against it under the N.J. Tort Claims Act, the plaintiff’s claim against it is dismissed, and, (2) since the utility company did not have or breach any duty to pedestrians using the township’s roadways, its summary judgment motion also will be granted. CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-7-6940 U.S.A. v. Rafael Dietsch, U.S. Dist. Ct. (25 pp.) Since defendant did not raise the issues of a constitutional violation in the lack of a unanimous jury verdict, or flaws in the jury verdict, at trial or on direct appeal, they are barred from consideration, and, since his allegations of ineffectiveness of counsel are without merit, his petition for a writ of habeas corpus is denied.

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