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Vol. 3 No. 195 Decisions Released Oct. 16, 1995 STATE COURT CASES BANKING — VACATING DEFAULT 06-2-6726 Fred W. Hotz v. First Fidelity Bank, N.A., N.J., App. Div. (4 pp.) Where bank’s in-house attorney — responsible for reviewing complaints and referring them to outside counsel –was on a brief vacation, and therefore could not review and refer a Special Civil Part complaint before the 20 days to answer had elapsed, excusable neglect exists to vacate the default entered. CONTRACTS 11-2-6727 Edward Ullrich v. Callaremi Pontiac-Buick-Cadillac-GMC Inc., App. Div. (3 pp.) Judgment is affirmed for plaintiff in car repair case — despite the fact that he did not produce expert testimony — since the complaint did not allege defective repairs, but, instead, sounded in breach of contract based on the repair shop’s breach of its promise that the automobile would run after the repair, which it did not. EDUCATION — STANDING 16-2-6728 Ridgewood Educ. Assn., et al. v. Ridgewood Bd. of Educ., App. Div. (7 pp.) The Commissioner of Education erred in determining that plaintiff education association did not have standing to challenge board of education’s policy — limiting employment of supplemental teachers to two consecutive years — on the basis that no current employee or member was affected by the policy, since the association had an interest in protecting its prospective members’ employment status. [Approved for publication Oct. 16, 1995. Available onlin in NJ Full-Text Decisions.] ENVIRONMENT 17-2-6729 Joseph Laezza, et al. v. Exxon Co. U.S.A., et al., App. Div. (26 pp.) On reconsideration of case where judgment was entered in favor of all defendants on all causes of action in gas station owners’ contribution action for spill remediation costs, judgment in favor of all defendants is affirmed, except as to the issue of the ownership of the underground lines and piping, and matter is remanded for that determination. (See Alert opinion dated Sept. 1, 1995 under DDS No. 17-2-6468.) FAMILY LAW — PENSIONS 20-2-6730 Kevin J. Hayden v. Julia C. Hayden (now Connolly), App. Div. (11 pp.) While post-retirement cost-of-living increases can be considered in equitable distribution pension valuation, the trial judge erred in holding that the cost-of-living component of any pre-retirement salary increases could be included in such an analysis. [Approved for publication Oct. 16, 1995.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6731 Robert J. Rowson v. Bd. of Review, App. Div. (3 pp.) Where employer requested, in a letter, a rescheduling of unemployment compensation hearing without explaining its failure to appear at the original hearing, the review board erred in ordering a new hearing, and any consideration given to the employer should have been limited to the record previously established. LABOR AND EMPLOYMENT — UNFAIR COMPETITION 25-3-6732 Platinum Management Inc., etc. v. Brian Dahms, et al., Law Div. (43 pp.) Employee who left plaintiff to work for competing toy manufacturer was guilty of breach of restrictive covenant in his contract, violated the duty of loyalty, and tortiously interfered with plaintiff’s economic advantage, and, since the competitor was the aggressor in inducing the employee to leave plaintiff and come work for it, it is also liable. [Approved for publication Oct. 12, 1995.] LANDLORD/TENANT — COMMERCIAL LEASES 27-2-6733 Five Century Assocs. v. TRW Inc., App. Div. (13 pp.) Judgment of trial court — awarding landlord damages for unpaid rent, holdover rent and cost of the removal of tenant’s alterations, and dismissing holdover tenant’s counterclaim — is affirmed, as the evidence supported the court’s finding that the tenant’s conduct amounted to willfulness, justifying the award. NEGLIGENCE — AUTOMOBILES 31-2-6734 Frank Campione v. Eric M. Jensen, et al., App. Div. (8 pp.) In reconsideration of case involving double-impact accident, the trial judge erred (1) in determining that one defendant was solely responsible for the first impact, (2) in failing to instruct the jury to compare the liability of all negligent parties, and (3) in making this comparison himself, and matter is remanded for a new trial on liability only. (See original opinion in the June 14, 1995, Alert under DDS No. 31-2-5866.) PUBLIC EMPLOYEES — PENSIONS 33-2-6735 In the Matter of Eligibility of Certain Assistant … Prosecutors, etc., App. Div. (4 pp.) Since the membership eligibility determination in the Police and Firemen’s Retirement System hinges upon a functional analysis of work duties and requirements rather than reference to a list of descriptive job titles, the case is remanded for an evidentiary hearing to determine whether an assistant prosecutor’s duties would qualify those holding that office for enrollment in PFRS. TAXATION — SCHOOL EXEMPTION 35-2-6736 N.J. Carpenters Apprentice Training and Educ. Fund v. Borough of Kenilworth, N.J., App. Div. (11 pp.) The Tax Court erred in holding that N.J. Carpenters Apprentice Training and Education Fund’s building for training carpenters did not qualify as a tax-exempt school under the law, since it is beyond doubt that the public benefits from the fund’s training programs. [Approved for publication Oct. 16, 1995.] WORKERS’ COMPENSATION 39-2-6737 Kevin Fallon v. Day’s Fence Co. v. Textile Deliveries Inc., et al., App. Div. (12 pp.) Since laborer met his burden of proving that his back condition and other medical problems were causally related to his employment with respondent, judgment against respondent is affirmed. CRIMINAL LAW AND PROCEDURE — ADMISSIONS — SETTLEMENTS 14-3-6738 State v. Franz Szawronski, Criminal Div. (9 pp.) Since nothing in N.J.R.E. 408 specifically prohibits the receipt of evidence in criminal proceedings regarding any admissions and/or statements made at a conference to settle civil claims of private parties, and the public interest in the criminal prosecution is greater than the public interest in the civil dispute settlement, statements made by the defendant –that he issued two bad checks to retaliate against victim — are admissible. [Approved for publication Oct. 12, 1995.]

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