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Vol. 3 No. 190 Decisions Released Oct. 6, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE 01-2-6670 Joseph A. Benintente v. State, Dep’t of the Treasury, Div. of Pensions, Pub. Employees’ Retirement Sys., App. Div. (3 pp.) Plaintiff’s disability claim against PERS, filed more than two years after he ceased membership, is properly denied administratively without an evidentiary hearing, since plaintiff does not allege that he suffered from a mental disability that prevented him from filing within the statutory two-year period. ATTORNEY/CLIENT 04-1-6671 In the Matter of Louis DiLieto, Sup. Ct., (25 pp.) Attorney’s knowing misappropriation of client funds triggered the Wilson automatic disbarment rule.[Approved for Publication. Available online in NJ Full-Text Decisions.] CIVIL PROCEDURE 07-2-6672 Nat’l State Bank v. Tewksbury Dev. Corp., et al., App. Div. (6 pp.) Settlement should not be set aside as unauthorized because evidentiary hearing failed to establish that defendants, who are guarantors of a bank loan, had disputed the settlement or challenged their attorney’s authority to settle within a 60-day time period in which the settlement allowed for paying over the funds, where defendants’ counsel had timely sent them letters correctly summarizing the statement. CIVIL PROCEDURE — REAL ESTATE 07-2-6673 John B. Porter, et al. v. Cifelli Assocs., App. Div. (6 pp.) Summary judgment was properly entered on a verfied complaint to quiet title where, in response to an order to show cause, the defendant submitted an affidavit, but did not argue to the Chancery Division court the procedural deficiency which it now raises. FAMILY LAW 20-2-6674 Adelaide M. Saraiva v. Jose M. Saraiva, App Div. (5 pp.) Trial judge properly awarded primary residential custody to father after an extensive in camera interview of the parties’ 12-year-old daughter, since the father, who worked two part-time jobs, was relatively more available during the daytime hours to care for the children, and the daughter’s preference for the father tipped the balance in his favor. TORTS 36-2-6675 Jose Piza, et al. v. El Oso Blanco, App. Div. (5 pp.) Jury charge that plaintiff business invitees had to prove that defendant supermarket had actual or constructive notice of a dangerous condition caused by rainy weather is correct because neither the nature of the business, the premises’ general condition, or a pattern of recurring incidents created a reasonable probability that a dangerous condition could occur. CRIMINAL LAW AND PROCEDURE 14-2-6676 State v. Kevin Graham, App. Div. (6 pp.) Crime of “absconding from parole” requires poof of both abandonment of a place of residence and the intent to avoid parole supervision or apprehension; adequate proof was presented to the grand jury and accordingly indictment was reinstated [Approved for Publication. Available online in NJ Full-Text Decisions.] 14-2-6677 State v. Alexander J. Rutledge, App. Div. (15 pp.) Defendant police officer’s confession was voluntary despite a promise by the interrogator to try to reduce bail if the defendant told the truth, in the light of all the surrounding circumstances, because defendant was a seasoned police officer, had signed a Miranda waiver form, and agreed that no one had threatened or treated him improperly; therefore, confession can properly go to the jury. FEDERAL COURT CASE BANKRUPTCY 42-6-6678 In re Lifestyle 80′s Inc., U.S. Bankruptcy Ct. (6 pp.) Where third party sent a check and a solicitation letter, which offered to buy creditor’s claim for the amount of the accompanying check, and where the check included a specific endorsement stating that endorsement made a final and unconditional transfer by assignment of the creditor’s claim, the fact that creditor’s employee thought the check was merely a partial payment of the claim does not invalidate the transfer. BANKRUPTCY — CIVIL PROCEDURE 42-6-6679 In re Robert E. Brennan, et al., U.S. Bankruptcy Ct. (3 pp.) Bankruptcy judge recuses himself because he is an adjunct law professor at Seton Hall University–which is now a creditor’s committee member in one of two related cases– in compliance with decisions of the Committee on Codes of Conduct of the Judicial Conference, but orders entered before recusal need not be vacated. END

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