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Vol. 3 No. 196 Decisions Released Oct. 17, 1995 STATE COURT CASES EDUCATION — TENURED EMPLOYEES 16-2-6739 Richard E. Zielinski, et al. v. Bd. of Education of East Brunswick Twp., etc., App. Div. (10 pp.) Since local school board’s 1955 resolution granting automatic tenure to janitors after three years’ service had never been replaced, amended, modified, or rescinded, State Board properly concluded that plaintiffs/janitors had acquired tenure, despite the issuance of fixed-term contracts, and were improperly terminated. INSURANCE — VERBAL THRESHOLD 23-2-6740 Jean G. Jules, et al. v. Mamie N. Sherman, et al., App. Div. (6 pp.) Summary judgment for defense is reversed since plaintiff’s doctor’s report can be evaluated as adequate to satisfy the objective indicia requirement of Oswin v. Shaw, and the discrepancy between the doctor’s x-ray findings and an earlier x-ray and MRI is a matter for the jury, not the motion judge. LANDLORD/TENANT 27-2-6741 Vander Sterre Bros. Constr., etc. v. Mildred Keating, App. Div. (14 pp.) An owner of an apartment constructed as a condominium unit is required to give a new tenant the formal notice specified in N.J.S.A. 2A:18-61.9 of the Anti-Eviction Act, and absent such notice, the three-year notice provision of N.J.A.C. 5:24-1.9(b) controls. [Approved for publication Oct. 17, 1995. Available online in NJ Full-Text Decisions.] NEGLIGENCE — JURY INSTRUCTIONS 31-2-6742 Walter Robinson v. City of Jersey City, et al., App. Div. (9 pp.) Where plaintiff injured when his vehicle skidded on an icy patch sued municipality where accident occurred, jury verdict of no cause is reversed, since jury charge erroneously did not define “dangerous condition” or list it as an element of the cause of action but instead incorporated all of the components of the cause of action into the definition of “dangerous condition.” [Approved for publication Oct. 17, 1995. Available online in NJ Full-Text Decisions.] PHYSICIAN/PATIENT — JURIES 29-2-6743 Robert Petrolia v. Estate of Dr. Harvey Nova, et al., App. Div. (12 pp.) Judgment for defendants in medical malpractice case is reversed where trial judge allowed trial to continue after the number of jurors was reduced to five. [Approved for publication Oct. 17, 1995. Available online in NJ Full-Text Decisions.] PUBLIC EMPLOYEES 33-2-6744 Estate of Charlie Davis v. Bd. of Trustees of the Public Employees’ Retirement System, App. Div. (4 pp.) Upon the death of a school district employee who had exhausted his sick leave, did not request a leave of absence and was removed from the payroll, survivors were properly denied life insurance benefits from PERS, since the employee was not “in service” at the time of his death. WORKERS’ COMPENSATION — ORTHOPEDIC INJURY 39-11-6745 Karen E. Carpenter v. Yockey Enterprises, t/a McDonalds, Workers’ Comp. Ct. (9 pp.) Where petitioner slipped and fell on the job and injured her knee but did not lose any time from work at either of her two jobs, sought no medical treatment for the injury from the day after the accident until the day of her testimony in court and climbed three flights of stairs at least three times a day, she failed to prove that the residual effects of the injury are serious enough to interfere substantially with other aspects of her life, and compensability is denied. WORKERS’ COMPENSATION — LYME’S DISEASE 39-11-6746 James W. Smart v. Asbersite, Inc., Workers’ Comp. Ct. (12 pp.) Where petitioner allegedly encountered ticks while inspecting, for his employer, a vacant building surrounded by overgrown grass, and later allegedly contracted Lyme’s Disease, his motion for medical and temporary benefits is denied for failure to establish causation, since there is no evidence that petitioner was bitten by the ticks, which he washed off soon after the inspection, and petitioner’s symptoms, though consistent with Lyme’s disease, are not exclusive to that disease. CRIMINAL LAW AND PROCEDURE 14-2-6747 State v. Craig Simmons, App. Div. (6 pp.) Where defendant was a passenger in the rear seat of a car occupied by two other persons, and where the car was observed and later stopped by police, after a package containing drugs was thrown from the passenger side window, this did not constitute sufficient evidence that defendant “possessed” the drugs, and his conviction is reversed. FEDERAL COURT CASES CIVIL PROCEDURE — SERVICE IMMUNITY 07-7-6748 American Centennial Ins. Co. v. Juan Manuel Handal, et al., U.S. Dist. Ct. (19 pp.) Panamanian defendant who traveled to N.J. specifically to be deposed in another action involving plaintiff was immune from service in this action, and since plaintiff has failed to show that a grant of immunity will in any way interfere with or jeopardize its rights in the first lawsuit, motion to quash service is granted. [For publication. Available online in Third Circuit Library.] CIVIL PROCEDURE — SETTLEMENTS 07-7-6749 U.S.A. v. Oscar Kim, etc., U.S. Dist. Ct. (6 pp.) Defendant’s motion to vacate consent decree, under which his laboratory was enjoined from analyzing any drugs until it conformed with federal regulations, is denied since it is untimely, the proffered defenses are faulty, and defendant’s bald allegations that the majesty of the U.S. government somehow overcame his will to not make out a prima facie case of duress. CIVIL RIGHTS — DISCRIMINATION — TITLE VII 46-7-6750 Ann F. McNierney v. N.J. Dept. of Education, U.S. Dist. Ct. (3 pp.) Where plaintiff’s counsel attempted — through statements in depositions, trial brief, proposed voir dire, jury interrogatories and request for jury instructions — to assert claims not in the complaint or pretrial order, defendant’s motion to preclude the assertion of the claims is granted. LABOR AND EMPLOYMENT — REMAND 25-7-6751 Guadelupe Gomez v. Healthcare Services Group, et al., U.S. Dist. Ct. (6 pp.) In retaliatory discharge suit, plaintiff’s motion to remand is granted since the first-served defendant’s removal was untimely, and subsequently-served defendants therefore cannot remove the action. NEGLIGENCE — AUTOMOBILES 31-7-6752 Leida Perez v. U.S. Postal Service, et al., U.S. Dist. Ct. (7 pp.) Where plaintiff failed to show evidence that the vehicle that side-swiped her, causing the subject accident, was a U.S. postal truck or was operated by a federal employee, the government’s motion to dismiss the complaint is granted.

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