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Vol. 3 No. 194 — October 13, 1995 STATE COURT CASES CIVIL PROCEDURE — SETTLEMENTS — REMEDIES 07-2-6713 Arthur Weintraub v. Richard Friedman, et al., App. Div. (5 pp.) Where plaintiff and defendant settled a dispute over vegetation the plaintiff removed by providing that plaintiff would “replace” the vegetation “to the extent reasonably possible,” and given the trial judge’s clear acceptance of the plaintiff’s description of the unremarkable vegetation and the judge’s rejection of defendant’s evidence that the vegetation was vastly superior and more expensive, the judge erred in awarding defendant with an amount equal to the cost of replacing the superior vegetation and the award is reversed. DEBTOR/CREDITOR 15-2-6714 Independence Bank of N.J. v. Larry McClure, et al., App. Div. (4 pp.) Where employer had paid a lump sum to debtor for accrued sick and vacation pay, the judge correctly denied creditor’s attempt to attach an alias writ of execution to this amount, in favor of increasing an existing wage execution, but the judge’s decision concerning the calculation of the amount is modified upward. EDUCATION 16-2-6715 Bd. of Education of the Borough of Ft. Lee v. Panagiotis Kintos, et al., App. Div. (11 pp.) Determination by the state Board of Education requiring couple to pay tuition to local school board, due to the ineligible enrollment of couple’s children, is affirmed, since the couple failed to prove domicile during the pertinent period; however, the order is modified to reduce the amount since the board is guilty of laches for not acting during the earlier portion of the time period. FAMILY LAW 20-2-6716 Lawrence J. Wolfe v. Susan C. Wolfe (now Judd), App. Div. (8 pp.) Where settlement agreement provided that wife would assume and satisfy the mortgage on the marital residence, and indemnify husband for mortgage payments he made, although the wife’s subsequent bankruptcy may have discharged the responsibility on the mortgage, since the husband is still liable, and has paid the bank on the note, the wife owes him indemnification. INSURANCE — VERBAL THRESHOLD 23-2-6717 Terry Goode v. Richard Hill, et al., App. Div. (4 pp.) Since the record is barren of objective medical evidence demonstrating plaintiff’s claimed injury, with the exception of spasm noted for only the first three months following the accident, and there is no showing of a nexus between the injury and the asserted disability, dismissal of the complaint was proper. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6718 John Charles Mullen v. Bd. of Review, App. Div. (2 pp.) Employee was properly denied unemployment benefits when he resigned from his position because he was unhappy about a warning he had received from his supervisor, and employee’s claim that his employer was duty-bound to accept his attempted retraction of his resignation is meritless. LAND USE 26-2-6719 Thomas Sarantos, et al. v. Shire Inn Inc., etc., App. Div. (15 pp.) Summary judgment in favor of neighboring property owners — determining that defendant had abandoned its right to continue the nonconforming use of its structure as a hotel — is reversed, since there are fact issues concerning the abandonment, and the matter is remanded for a hearing concerning whether defendant has been operating the structure as a hotel or as a boarding house, and, if the latter, whether defendant would be permitted to make further corrections in order to continue its prior nonconforming use. CRIMINAL LAW AND PROCEDURE 14-2-6720 State v. A.J.S., App. Div. (11 pp.) Since the trial court, in its jury instructions, inappropriately commented on defendant’s election not to testify, defendant’s Fifth Amendment rights were violated, and his conviction is reversed. FEDERAL COURT CASES IMMIGRATION 51-7-6721 Evans O. Ibe v. Warren A. Lewis, I.N.S. Director, U.S. Dist. Ct. (5 pp.) Immigrant’s petition for habeas corpus to stay his deportation is denied, since less than five years have elapsed since he was ordered deported, and he has alleged no exceptional circumstances to excuse his failure to appear for and flight from deportation, and therefore is not eligible to seek relief. INSURANCE — ARBITRATION 23-7-6722 Compania Agricola De Seguros, S.A., et al. v. American Centennial Ins. Co., U.S. Dist. Ct. (4 pp.) Since defendant has failed to establish that this matter involves only claims that are mandatorily arbitrable, its motion to compel arbitration of the claims is denied, and, since there are numerous unresolved material fact issues concerning the parties’ relationships, the plaintiff’s motion to resolve the issue of its relationship with the defendant is denied, and a fact-finding hearing is ordered. LABOR AND EMPLOYMENT — REMOVAL 25-7-6723 George M. Franklin v. Pennsylvania Truck Lines Inc., et al., U.S. Dist. Ct. (8 pp.) In multi-defendant cases, the 30-day removal period begins to run upon the receipt of the pleadings by the first defendant, and, when the first-served defendant here did not file a valid removal notice within the appropriate period, it lost its right to consent to the removal notices of the other defendants, even though they were timely, and, since the necessary unanimity is lacking, the action is not removable and the plaintiff’s motion to remand is granted. LABOR AND EMPLOYMENT — WHISTLEBLOWERS 25-7-6724 Laura Palesado v. Bio-Technology Gen.Corp., et al., U.S. Dist. Ct. (13 pp.) Plaintiff has failed to submit sufficient proof that directors and officers of her ex-employer could be held individually liable for discrimination or harassment under Title VII since her sole allegation against them was that they “acquiesced in, condoned and ratified” her supervisors’ actions, and since she has not made the required showing that the officers were personally involved in the wrongful conduct, the action is dismissed against them. NEGLIGENCE — WORKPLACE INJURY 31-7-6725 Michael Amadeo v. Consolidated Rail Corp., U.S. Dist. Ct. (7 pp.) Where freight trainman’s back was injured when he was following the proper procedure for coupling rail cars together but when one of the drawbars stopped abruptly, the issue of whether the drawbar was defective or not is a genuine issue of material fact, and defendant’s motion for summary judgment is denied.

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