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Vol. 3 No. 184 Decisions Released Sept. 28, 1995 STATE COURT CASES DEBTOR/CREDITOR 15-2-6617 Gerard C. Fallon, et al. v. Midlantic National Bank/North, et al., App. Div. (7 pp.) Judge correctly dismissed debtors’ suit against bank alleging breach of confidentiality since, inter alia, any alleged confidential information concerning the debtors was disclosed for the purpose of protecting the bank’s claim in litigation. FAMILY LAW 20-2-6618 Patricia O’Byrne, etc. v. William O’Byrne, App. Div. (10 p.) Order denying wife a modification of her waiver of child support is reversed, since the motion judge failed to make findings of fact or conclusions of law that would permit appellate review. 20-2-6619 Karen A. Viola v. Richard A. Viola, App. Div. (6 pp.) Trial court’s failure to award child support is reversed, since the decision is not supported by the record and the rationale – that wife’s rehabilitative alimony may be both a resource reduction for the husband and an income source for the wife — is flawed. INSURANCE — VERBAL THRESHOLD 23-2-6620 Anne Marie Marchi v. Layne A. Simon, et al., App. Div. (3 pp.) Where plaintiff failed to show a nexus between the accident, her alleged injuries, and any resultant loss, she failed to meet the verbal threshold, and since she failed to show any permanent loss of a bodily function, permanent disfigurement or dismemberment, she also failed to satisfy the Tort Claims Act. LABOR AND EMPLOYMENT — DISABILITY BENEFITS — MATERNITY 25-2-6621 Christine A. Bianchi v. Bd. of Review, et al., App. Div. (3 pp.) Where plaintiff herself was medically recovered from the birth of her premature child but did not return to work because of her need to breast-feed the baby, she was properly denied further disability benefits because she was not disabled and there was no testimony that the child had to be breast-fed for medical reasons. LABOR AND EMPLOYMENT — UNEMPLOYMENT BENEFITS 25-2-6622 Leonard Lindsay v. Bd. of Review, App. Div. (3 pp.) Fact that worker had given his employer notice of his intention to leave his job within the month created a voluntary separation from employment, and the employer’s replacement of the worker, in reliance on the notice, prior to the termination date set by the worker does not amount to a firing. NEGLIGENCE — WORKERS’ COMPENSATION 31-2-6623 Alice Richter, et al. v. Ann Peters, App. Div. (3 pp.) One teacher’s personal injury suit against another, for injuries sustained in an accident which occurred in the school parking lot, was properly dismissed because the injury was incurred on the job and was compensable solely under the Workers’ Compensation Act. PARENT/CHILD 28-4-6624 R.K. and L.K. (maternal grandparents), etc. v. A.J.B. (legal father), etc., et al., Chancery Div. (12 pp.) Since the widening of the class of persons who may object to an adoption is discretionary, and since maternal grandparents’ claims for visitation are in the nature of objections to the step-mother’s adoption of their grandchild, the court denied the grandparents’ motion to consolidate their visitation claims with the adoption proceeding but allowed the grandparents standing to intervene in the adoption. [Approved for publication Sept. 27, 1995.] REAL ESTATE — EASEMENTS 34-2-6625 Robert F. Williamson, et al. v. Christina Ernst, App. Div. (4 pp.) Trial judge’s finding — that an easement existed in the alley between the houses of the parties — is amply supported by the record, which showed that the alley had been used for over 40 years by both homeowners as part of a recognized and acknowledged neighborhood scheme and that the use was within the reasonable expectation of the owners. REAL ESTATE — OPTION CONTRACTS 34-2-6626 Antonio Matinho, et al. v. EEC Investments, etc., et al., App. Div. (7 pp.) Where sellers granted to land buyers/developers the option of paying the balance of the purchase price by delivery of three condominium units on or before a date certain, this created an option contract in which, by definition, time is of the essence, and buyers’ failure to deliver the units was a default entitling sellers to judgment. TORTS — PUBLIC ENTITIES 36-2-6627 Rebecca Jackson v. Newark Housing Authority, et al., App. Div. (4 pp.) Tenant’s personal injury suit against public entity was properly dismissed, since she failed to show that the effect of the injuries on her life was serious enough to warrant liability for noneconomic losses. FEDERAL COURT CASES CONTRACTS — ERISA 11-7-6628 Robert Stires v. Sprint Corp., et al., U. S. Dist. Ct. (8 pp.) Summary judgment dismissing former employee’s complaint is granted since (1) breach of contract, breach of implied covenant and public policy claims — all relating to an employee benefit plan — are preempted by ERISA, (2) ERISA does not prohibit employer from using workers’ compensation payments to offset retirement pension benefits, (3) ERISA provides no substantive remedies for employer’s failure to adhere to procedural requirements and (4) there are no extraordinary circumstances that would support a claim for equitable estoppel. ENVIRONMENT — CLEANUP — LITIGATION COSTS 17-7-6629 Amland Properties Corp. v. Aluminum Co. of America v. Tri-Terminal Corp., et al., U.S. Dist. Ct. (29 pp.) Although third-party defendants won a judgment declaring plaintiff/property owner and defendant/prior owner responsible for releasing hazardous substances onto the property, they are directed to submit an amended verified bill of costs from which court can determine which costs are recoverable and which are not. REAL ESTATE — BROKERS’ COMMISSIONS 34-7-6630 Gebroe-Hammer Associates, etc. v. Home Savings of America, et al., U.S. Dist. Ct. (16 pp.) Where mortgagees took back commercial property from mortgagor through a deed in lieu of foreclosure and then marketed the property for sale through broker, but the sale to a buyer arranged by the broker fell through when mortgagor’s limited partners litigated the validity of the deed, the broker was not entitled to commissions, since there was no evidence that mortgagees acted fraudulently or intended to deceive realtor by concealing a cloud on the title. TORTS — CIVIL RIGHTS 36-7-6631 Anthony Barbee, et al. v. Edwin H. Englehardt, et al., U.S. Dist. Ct. (7 pp.) In suit alleging that sheriff’s officers beat plaintiffs, magistrate judge correctly excluded any reference in plaintiffs’ expert report concerning (1) prior incidents of the officers’ alleged misconduct, since any probative value would be substantially outweighed by the danger of unfair prejudice, and (2) the alleged strip and body cavity search of female plaintiff, since the complaint was insufficiently specific as to the search and did not provide notice that it would be an issue in the suit. CRIMINAL LAW AND PROCEDURE — FORFEITURE 14-7-6632 U.S.A. v. One Partially Assembled Drag Racer, etc., U.S. Dist. Ct. (20 pp.) Forfeiture complaint that fails to comply with the specificity requirements of Rule E(2)(a) is dismissed and the bond is ordered returned to claimant with interest, but the dismissal is without prejudice to government’s filing of an amended complaint conforming with the rules, and so claimant’s motion for return of the property is denied. [For publication.]

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