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Vol. 3 No. 185 Decisions Released Sept. 29, 1995 STATE COURT CASES CONSTITUTIONAL LAW — TAXATION — EDUCATION 10-2-6633 Lester M. Ayars, etc. v. State of New Jersey, et al., App. Div. (3 pp.) Plaintiff’s complaint–against the state and public officials who collect taxes and implement the funding of public education, for a refund of taxes “erroneously or illegally assessed”–was properly dismissed, since plaintiff confused the constitutionality of taxation statutes with the constitutionality of statutes that deal with tax funds distribution. ENVIRONMENT — CORPORATE OFFICER’S LIABIILTY 17-2-6634 State, Dept. of Envtl. Protection v. Standard Tank Cleaning Corp., et al., App. Div. (34 pp.) (1) The trial court did not abuse its discretion in permitting the DEP to amend its complaint to add corporate officers as defendants in a suit for corporation’s Water Pollution Control Act violations, but the trial procedures under which the officers were found personally liable violated the rules of evidence and were fundamentally unfair, requiring reversal. (2) The court properly dismissed the complaint against the corporation’s parent organization, but improperly dismissed counts against other corporate officers, and retrial is required against these officers. (3) The DEP’s counsel fees application, for handling the enforcement litigation, was properly denied. (4) The trial court erred in refusing to impose additional penalties for WPCA violations that also constituted violations of administrative and/or court orders. [Approved for publication Sept. 29, 1995.] INSURANCE 23-2-6635 Ronald R. Ferro, et al. v. Jt. Underwriting Assn., App. Div. (7 pp.) The insurance commissioner’s adoption of a regulation mandating the inclusion of extended medical expense benefits coverage in policy forms or endorsements for automobiles as defined in N.J.S.A. 39:6A-2 contemplates that the same statute of limitations be applied to those benefits as other PIP benefits, and, therefore, plaintiff’s claim, not filed within that two-year period, was properly dismissed as time-barred. LAND USE 26-2-6636 Paul Kruger, et al. v. Bd. of Adjustment of Verona Twp., et al., App. Div. (5 pp.) Where homeowners added a second, kosher kitchen to their single-family house, the second kitchen was properly found not to violate the single-family zoning regulations, since the occupants of the premises lived together as an integrated family unit. NEGLIGENCE — SNOW REMOVAL — COMMERCIAL PROPERTY 31-2-6637 Dianne Kelly, et al. v. Nat’l Realty & Development, etc., et al., App. Div. (5 pp.) No cause verdict is affirmed in plaintiff’s negligence suit against shopping center owner (for injuries plaintiff sustained when her car slid on ice and struck a pillar in defendant’s parking lot), since a jury could reasonably have concluded that defendant was not negligent in failing to remove the .03 inches of snow before plaintiff’s arrival at the mall, while the snow was still falling. PHYSICIAN/PATIENT 29-2-6638 Elizabeth Pagan v. Mahadevan Krishnan, M.D., etc., et al., App. Div. (8 pp.) The trial court did not err when it permitted doctor’s expert to express an opinion at trial that was different from that which he had previously rendered, since plaintiff made no objection during the expert’s testimony, made no attempt to limit the expert’s testimony, and since plaintiff’s counsel cross-examined the expert on the differences in his opinions; verdict for doctor is affirmed. FEDERAL COURT CASES CONTRACTS — ROYALTIES 11-7-6639 Frederick F. Buechel, M.D., et al v. DePuy, Inc., U.S. Dist. Ct. (9 pp.) Where defendant filed a federal complaint in Indiana, and plaintiff filed a federal complaint in New Jersey, both of which involved the calculation of royalties from certain licensing agreements and additional breach of contract claims, defendant’s motion to dismiss the New Jersey action is granted under the first-filed rule, which provides that, absent special circumstances, the court that first has possession of the subject must decide it. CORPORATIONS 12-7-6640 William F. Coyer Sr., et al. v. John W. Hemmer, et al. v. Innovative Design Products Inc., et al., U.S. Dist. Ct. (39 pp.) In a dispute arising out of a series of business transactions and financial plans involving three corporations, the court grants in part and denies in part a motion to dismiss the counterclaims and third-party complaint of the defendant, one of the employees, directors, and shareholders, against other employees, directors, and shareholders, discussing shareholder derivative suits, and issues of breach of fiduciary duty, breach of employment contracts, securities violations, economic duress and RICO claims. [For publication.] INSURANCE — AGENTS 23-7-6641 Countryside Oil Co. v. Travelers Ins. Co., U.S. Dist. Ct. (25 pp.) Although agent had advised hauler that its insurance policies covered accidental oil spills, when in fact such claims were barred by the policies’ pollution exclusions, the insurance company is granted summary judgment on hauler’s complaint for coverage, since, the agent’s actions were beyond the agency agreement’s express terms, and there was no evidence in the record that the insurance company misrepresented anything to either the agent or the hauler, such that equitable estoppel could be applied.

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