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Vol. 3 No. 198 Decisions Released Oct. 19, 1995 STATE COURT CASES ARBITRATION — RENTS 03-2-6769 Olde Lafayette Leasing Co., et al. v. Jack Frey, et al., App. Div. (10 pp.) Order enforcing arbitration award establishing two elements of defendant’s rental obligation to plaintiff, namely the basic and additional common area rental, and the percentage rental based on either gross sales or on net income, is reversed, since the arbitrators failed to resolve one of the issues presented to them regarding the net income rental adjustment, and therefore the award failed to comply with the arbitration agreement. AUTOMOBILES — LICENSE SUSPENSION 05-2-6770 Div. of Motor Vehicles v. Jean M. Charlot, App. Div. (4 pp.) Increase in defendant’s license suspension (for driving while license was suspended) is affirmed, despite defendant’s contention that the notice of proposed suspension was insufficient, since the notice, although not a model of clarity, was sufficient to advise him of the proposed suspension and his rights, and defendant’s contention that he did not receive the notice is waived by the fact that his attorney did not raise the issue at the hearing. ENVIRONMENT — E.C.R.A. 17-2-6771 I/M/O Cadgene Family Partnership, App. Div. (10 pp.) State Department of Environmental Protection’s rescission of its approvals of partnership’s letter of non-applicability and negative declaration under the Environmental Cleanup and Responsibility Act is affirmed, since partnership withheld material information regarding property’s former industrial use when applying for the approvals. GOVERNMENT — MUNICIPAL APPOINTMENTS 21-2-6772 Joseph Scala, Mayor, etc. v. Council of the Borough of Fairview, et al., App. Div. (4 pp.) The trial court correctly concluded that N.J.S.A. 40A:60-6(d) made no change in a law under which appointment powers rested with the mayor for 30 days, and once the council rejected the mayor’s nominees for borough officials, the mayor was authorized to submit a new list within the 30-day period. GOVERNMENT — CONTRACTS — BIDDING 21-2-6773 Employment & Training Inst., Inc. v. N.J. Dept. of Treasury, App. Div. (15 pp.) Despite appellant’s contention that it is more qualified than successful bidder, the state Treasury Department’s decision to award a contract for post-termination counseling to another company is affirmed, since successful bidder’s proposal substantially complied with the invitation to bid, and the decision was not an abuse of discretion. INSURANCE — DISABILITY 23-2-6774 Continental Casualty Co., etc. v. Robert Greco, App. Div. (5 pp.) In insurance company’s suit to recoup alleged overpayments of disability insurance benefits to defendant, judgment was properly granted on defendant’s counterclaim, since insurer wrongfully offset defendant’s disability benefits by the Social Security benefits paid to defendant’s dependents. NEGLIGENCE — DOG BITES 31-2-6775 Dean Francis Damato v. Ronald Just, et al., App. Div. (6 pp.) Where jury concluded that only a portion of plaintiff’s injuries were caused by the defendant’s dog, but awarded an insufficient amount to plaintiff to compensate for injuries that were proximately caused by the dog’s bite, the trial court’s denial of plaintiff’s motion for a new trial and limitation of additur to $5,000 were not abuses of discretion and are affirmed. REAL ESTATE — TITLE INSURANCE — COUNSEL FEES 34-2-6776 Fred A. Avila, et al. v. Frances Sylvester, et al. v. Ticor Title Ins. Co., App. Div. (7 pp.) Although counsel fees are authorized by rule in an action upon a title insurance policy, the present case — holding that both the title company and its insured had waived their right to require defendant to clear a federal tax lien — although involving a title insurance company, was not a claim upon a title policy, and, counsel fees were properly denied defendant. WORKERS’ COMPENSATION 39-2-6777 John G. Sisalouis v. J.L. Manta, Inc., App. Div. (5 pp.) Painter was correctly awarded temporary disability benefits as a result of a compensable occupational disease where he worked for respondent removing lead paint from highway bridges and the exposure resulted in lead poisoning. 39-11-6778 James Gathers v. PVC Container Corp., Workers’ Comp. Ct. (17 pp.) Petitioner, who suffered back and arm injuries in a fall admitted to be a workplace accident, has sustained his burden of proving that the residual effects of his injuries are more than de minimis, and he is entitled to a permanent orthopedic disability award of 12.5 percent partial/total. 39-11-6779 Alicia Thames v. Laid Law Transit Inc., Workers’ Comp. Ct. (18 pp.) Transportation aide, who was injured when attacked by one of the patients she was transporting, has not met her burden of proving permanent disability, and her claim is dismissed, since her complaints have changed from the date of injury through her court appearance and she has not produced evidence sufficient to establish permanent injury with regard to the complaints. CRIMINAL LAW AND PROCEDURE 14-2-6780 State v. John F. Zuspan, App. Div. (4 pp.) Reversal is required of defendant’s conviction for failure to observe traffic signs, namely, markings for the “high occupancy vehicle” (HOV) lanes, since, while defendant may have known about the establishment of the lanes, the statute requires that he disregard an “official traffic control device,” and there is no testimony that any signs were posted. 14-2-6781 William Loftwich v. William H. Fauver, App. Div. (8 pp.) Where sentencing guidelines for certain parole violators were changed by a 1984 statute, there is no constitutional violation in the application of the amended guidelines to defendant who, although initially sentenced before 1984, did not violate parole until after that date. [Approved for publication Oct. 19, 1995. Available Online in NJ Full-Text Decisions.] 14-2-6782 State v. Sarah Riccardi, App. Div. (12 pp.) The trial judge’s entrapment charge sufficiently tracked the model jury charge, and he did not err by refusing to charge the jury that a police officer may not offer a citizen an inducement to commit a crime without first having a reasonable suspicion of the targeted defendant’s predisposition. [Approved for publication Oct. 19, 1995. Available Online in NJ Full-Text Decisions.] FEDERAL COURT CASES ATTORNEYS — EX PARTE COMMUNICATIONS — F.E.L.A. 04-7-6783 John W. Blasena v. Consolidated Rail Corp., etc. U.S. Dist. Ct. (11 pp.) In a case involving workplace injury, defendant’s application for an order barring plaintiff’s counsel from conducting ex parte interviews of defendant’s employees is denied, since 45 U.S.C. 60, which protects the right of a plaintiff to obtain information to support his claim in a case brought under the Federal Employer’s Liability Act, bars the application of R.P.C. 4.2, which prohibits ex parte communications. LABOR AND EMPLOYMENT 25-7-6784 Marcia M. Weeden v. Eden Toys Inc., U.S. Dist. Ct. (9 pp.) In a wrongful termination case, since plaintiff has alleged a claim for emotional distress and placed her mental condition in controversy, her motion for a protective order, seeking to bar the defense from questioning her with regard to stressful events in her past, is denied. 25-7-6785 In re: Onofrio Mezzina; U.S.A. v. Local 560 (I.B.T.), et al., U.S. Dist. Ct. (5 pp.) Ex-union member’s application to file a late appeal from union trustee’s decision to expel him from future union membership is denied as untimely, and applicant’s contention that service of the decision upon his attorney was invalid is without merit under the terms of the applicable union consent order. 25-7-6786 Oliver Pierce Jr., et al. v. Pauls Trucking Co., et al., U.S. Dist Ct. (16 pp.) In truckers’ action against their employer and union — alleging that their grievances regarding seniority have been insufficiently addressed in violation of their collective bargaining agreement — union’s motion to dismiss the duty of fair representation claim, employer’s motion for summary judgment on the breach of contract claim, and the motion for summary judgment on behalf of both employer and union on the tort claim are all granted. LANDLORD/TENANT 27-7-6787 Net Realty Holding Trust v. Consumers Discount Inc., et al., U.S. Dist Ct. (19 pp.) Where under specific commercial lease terms, an obligation was imposed upon the landlord to notify original tenant/assignor of the lease before it obtained a warrant for removal upon default of the assignee tenant, and landlord did not fulfill this obligation, assignor tenant was unable to attempt to cure the default and landlord cannot now obtain damages from the assignor tenant, whose summary judgment motion is granted.

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