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Vol. 3 No. 210 Decisions Released Nov. 6, 1995 STATE COURT CASES FAMILY LAW 20-2-6941 Selma (Jorgensen) Sutton v. John P. Jorgensen, App. Div. (7 pp.) Since wife was not seeking a modification of support, but merely attempting to enforce the fully negotiated settlement agreement of the parties — the support portion of which had been suspended due to husband’s unemployment — the Lepis procedures were not activated, and the support guidelines did not apply. Therefore, the judge did not err in entering the support award without full disclosure, and in making the award retroactive. 20-2-6942 Beverly Juhl Geschlecht v. Michael Geschlecht, App. Div. (7 pp.) There was no abuse of discretion in judge’s distribution of a one-half interest in marital residence to wife, even though house had been in husband’s family for three generations, since wife bore the sole financial burden of maintaing the property during the marriage. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6943 Nancy L. Glasner v. Bd. of Review, etc., App. Div. (2 pp.) Board’s decision that babysitter was “unavailable for work,” and therefore not entitled to unemployment compensation benefits, is affirmed, since sitter made no permanent child care arrangements for her young sons, did not apply in person for interviews because of transportation problems, and told prospective employers that she sought only temporary work because she planned to move. PHYSICIAN/PATIENT 29-2-6944 Linda Gardner, et al. v. Myron Pawliw, M.D., App. Div. (15 pp.) In malpractice case where parents alleged that obstetrician deviated from acceptable medical practice by not ordering a “nonstress test” and “biophysical profile” when fetus became less active, dismissal of case is affirmed, since parents failed to present any evidence from which a jury could find that the obstetrician’s malpractice was a proximate cause of the baby’s death. [Approved for publication Nov. 6, 1995.] PRODUCT LIABILITY 32-2-6945 Jose Anaya, et al. v. Cincinnati Inc., App. Div. (11 pp.) Judgment for defendant is affirmed, based on jury’s finding that plaintiff was misusing defendant’s sheetmetal cutting machine at the time of his injury, and that the misuse was not objectively foreseeable, and any errors in the judge’s jury instructions were harmless. FEDERAL COURT CASES CIVIL RIGHTS — ATTORNEY FEES 46-7-6946 Louis D. Barna, et al. v. The City of Perth Amboy, et al., U.S. Dist. Ct. (24 pp.) Although plaintiff himself was the cause of the altercation in which he alleged he was assaulted by police officers, plaintiff’s claim was not so frivolous, groundless or unreasonable as to warrant the award of counsel fees and sanctions; so a motion for same is denied even though the officers prevailed when they were granted summary judgment because their acts were neither performed under color of state law nor unreasonable under the circumstances. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-6947 Eugene G. Burns, et al. v. General Office Environments Co., Inc., et al., U.S. Dist. Ct. (14 pp.) Since plaintiff has presented sufficient evidence at the summary judgment stage to permit a reasonable jury to conclude that defendant’s reorganization — and assignment of tasks to younger personnel — was not the real reason for plaintiff’s termination, but a pretext, defendant’s motion for summary judgment is denied. LABOR AND EMPLOYMENT — SOCIAL SECURITY DISABILITY 25-7-6948 Robert P. Stefanow v. Donna E. Shalala, etc., U.S. Dist. Ct. (53 pp.) Although the administrative law judge found that plaintiff continued to suffer from severe impairments — including diabetes, and visual, endocrine and mental disorders — there was substantial evidence to support judge’s determination that disability benefits should cease, since plaintiff had improved medically and could perform other sedentary work prevalent in both the local and national economies. PRODUCT LIABILITY — THIRD PARTY NEGLIGENCE 32-7-6949 Bernice Erkins, as Administratrix, etc. v. Case Power & Equipment Co., et al., U.S. Dist. Ct. (8 pp.) In a construction accident case — in which plaintiff sued backhoe manufacturer under strict liability and failure to warn theories — manufacturer’s motion to file a third party complaint for contribution, sounding in negligence, is granted, since N.J. law provides that joint tortfeasors may be held liable under different theories of recovery. [For publication.] TORTS — ISSUE PRECLUSION — CRIMINAL MATTERS 36-7-6950 Lloyd Sibert v. John Phelan, et al., U.S. Dist. Ct. (12 pp.) Since plaintiff, during a suppression hearing at his criminal trial, put into issue the conduct of the police at the time of his arrest, the issues have been adjudicated and plaintiff is precluded from bring this action against detectives for alleged assault and injuries sustained during that arrest. [For publication.]

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