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Vol. 3 No. 208 Decisions Released Nov. 2, 1995 STATE COURT CASES ADMINISTRATIVE LAW — LONGSHOREMEN 01-2-6910 Waterfront Commission of N.Y. Harbor v. John Giannotta, App. Div. (6 pp.) The final determination of the waterfront commission — revoking longshoreman’s registration on the ground that his conduct constituted willful misappropriation of the property of another at his employer’s terminal — was amply supported by the evidence and is affirmed. ATTORNEYS — DUTY TO NONCLIENTS 04-2-6911 Atlantic Paradise Assocs. Inc. v. Perskie, Nehmad & Zeltner, et al., App. Div. (11 pp.) In a case where condominium purchasers filed suit against law firm for alleged misrepresentations in a public offering statement it drafted, summary judgment was erroneously granted to law firm, since an attorney may be responsible to a nonclient if the attorney can foresee that the nonclient would rely on the legal services; here, reliance by purchasers on the offering’s contents is foreseeable. [Approved for publication Nov. 2, 1995. Available Online in NJ Full-Text Decisions.] DEBTOR/CREDITOR 15-2-6912 John Leroux, et al. v. Georgia Phillips, et al., App. Div. (3 pp.) Where homeowners contracted for home repair and advanced funds at the request of both the contractor and his wife, who were in need of cash for living expenses, both spouses are liable for these necessary expenses, irrespective of the fact that the wife did not sign the promissory note, and summary judgment was properly entered against both spouses in favor of homeowners in their collection action. FAMILY LAW 20-2-6913 Kevin Lalka v. Deborah Lalka, App. Div. (9 pp.) Although a child support hearing was never intended to address a custody change, it is clear that that was the outcome, and, therefore, the portions of the judge’s order changing custody are reversed and remanded for a plenary hearing on that issue. INSURANCE — LEGAL FEES 23-2-6914 Bonnie Holowacz v. N.J.A.F.I.U.A., App. Div. (2 pp.) Since there was nothing in the plaintiff’s attorneys’ certification in support of legal fee application that was suspect, and since defendant did not file any opposing certification, the judge’s decision to deny the application was arbitrary, unreasonable and a mistaken exercise of discretion, and is reversed. INSURANCE — VERBAL THRESHOLD 23-2-6915 Nicole Palmer v. Eileen Young, App. Div. (8 pp.) Motion judge’s grant of summary judgment to defendant under a Polk analysis — finding that plaintiff failed to document the nature and extent of her disability due to a pre-existing scoliosis condition before and after the accident — was misplaced and is reversed, since aggravation of her pre-existing condition was not part of her claim for noneconomic damages. NEGLIGENCE 31-2-6916 John Nigro v. Int’l Sys. Svcs. Inc., et al., App. Div. (5 pp.) Since the standard of conduct with which contractor must comply in installing and maintaining electrical boxes and carpet tile, and whether there was a deviation from that standard, are not within a lay person’s common knowledge, plaintiff’s case was properly dismissed because plaintiff did not provide expert testimony and could not, therefore, establish a prima facie case. PARENT/CHILD 28-2-6917 N.J. Div. of Youth and Family Svcs. v. J.C., et al., App. Div. (3 pp.) Father’s parental rights were properly terminated since he was impulsive and anti-social, had almost continuously been in prison from the time he entered the country in 1982 until the time of the trial in 1994, was not a model prisoner, and rejected opportunities for admission to drug rehabilitation programs both while in prison and after he was paroled, and child was thriving in foster care, from which removal would be destructive to her well-being. TORTS — WORKPLACE INJURY 26-2-6918 Joanne Meola, et al. v. Kimberly-Clark Corp., App. Div. (4 pp.) Where plaintiffs seek to proceed against Joanne Meola’s employer in an ordinary tort action based upon a design defect, despite the exclusivity of the workers’ compensation remedy, on the dual persona theory or dual capacity doctrine, plaintiffs should have been allowed continuing discovery to develop the factual predicates of their theory, and summary judgment for the defendant is reversed. CRIMINAL LAW AND PROCEDURE 14-2-6919 State v. George Ferry, App. Div. (16 pp.) The trial judge erred by admitting extensive evidence of defendant’s prior beatings of the victim, which had the potential to alter the case’s outcome, and defendant’s conviction of second degree attempted sexual assault is reversed. CRIMINAL LAW AND PROCEDURE — EXPUNGEMENT 14-2-6920 In the Matter of the Petition of Anthony Podias, App. Div. (5 pp.) Order denying petition for expungement of disorderly persons conviction was proper, since, although a prior criminal charge was dismissed after a successful PTI completion, this dismissal does not eradicate the conviction for purposes of a subsequent disorderly persons expungement under the applicable statutes. [Approved for publication Nov. 2, 1995. Available Online in NJ Full-Text Decisions. ] FEDERAL COURT CASES INSURANCE — DISABILITY COVERAGE 23-7-6921 Peter J. Scalia, D.D.S., etc. v. Lafayette Life Ins. Co., et al.; John Patrick Fisher, etc. v. Peter J. Scalia; Natl. Casualty Co. v. Peter J. Scalia, U.S. Dist. Ct. (46 pp.) The court grants, in part, insurers’ motions for summary judgment – seeking rescission of disability insurance policies and restitution for all monies paid to insured — since he materially misrepresented his medical condition and omitted material information concerning his medical history in his applications for the policies. LABOR AND EMPLOYMENT — BENEFIT PLANS — ERISA 25-7-6922 William Medlinsky (Leger) v. Matsushita Electric Corp., et al., U.S. Dist. Ct. (8 pp.) In employee’s suit for unpaid medical payments which he claims are due him under an employee benefits plan, defendants’ motion for summary judgment (1) is granted on counts alleging breach of contract, harassment, intentional and negligent infliction of emotional distress, since these are state law claims preempted by ERISA, (2) is denied on count alleging breach of fiduciary duty, since fact questions exist as to individual defendants’ fiduciary status, and (3) is granted striking employee’s claim for actual, compensatory and punitive damages, and for a jury trial; however, the employee may file an amended complaint. LABOR AND EMPLOYMENT — ERISA 25-7-6923 System Council T-3 of the I.B.E.W., et al. v. A.T.&T., et al., U.S. Dist. Ct. (23 pp.) Under the plain language of AT&T pension plan — which provides for the suspension of benefits when a former AT&T employee resumes employment with an “Interchange Company”– and in light of the valid plan purposes served by the administrators’ interpretation, the court concludes that the administrators did not abuse their discretion in determining that the employees were ineligible for benefits. 25-8-6924 James F. Dade, et al. v. N. Am. Philips Corp., etc., et al., Third Cir. (16 pp.) ERISA does not impose an obligation upon an employer that sells a business, but retains the pension plan covering the employees of that business, to credit the employees’ service with the business’s new owner when determining the eligibility of those employees for an early retirement benefit subsidy, and plaintiffs’ complaint seeking such credit was properly dismissed. LABOR AND EMPLOYMENT — REVERSE DISCRIMINATION 25-7-6925 Raymond Crane v. Digital Equip. Corp., U.S. Dist. Ct. (12 pp.) Employee’s claim of reverse gender discrimination in employer’s failure to promote him is dismissed, since, although it is clear that a woman received the promotion which he was denied, he has offered no evidence of any element of the prima facie case for reverse discrimination, including background circumstances that would support the suspicion that the employer is an unusual employer who discriminates against the majority.

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