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Vol. 3 No. 181 Decisions Released Sept. 25, 1995 STATE COURT CASES WORKERS’ COMPENSATION 39-2-6578 John F. Hanrahan v. Twp. of Sparta, App. Div. (12 pp.) Judge of compensation correctly granted petitioner, a police officer injured in an automobile accident in the course of his employment, continuation of medical treatment that had been effective in relieving petitioner’s symptoms and improving function, and such palliative relief is not limited to cases of total disability, as argued by respondent. [Approved for publication Sept. 25, 1995.] CRIMINAL LAW AND PROCEDURE — D.W.I. — SENTENCING 14-2-6579 State v. William R. Seylaz, III, App. Div. (6 pp.) Since defendant had three prior DWI convictions more than 10 years before his current conviction, two which were without representation by counsel, he was properly treated as a second offender for the custodial aspects of his sentence but as a third or subsequent offender for the non-custodial aspects. CRIMINAL LAW AND PROCEDURE — SUPPRESSION OF EVIDENCE 14-2-6580 State v. Raymond Arias, App. Div. (3 pp.) The trial judge properly granted the defendant’s motion to suppress drug evidence because the search warrant, authorizing a search of the “front apartment on the second floor” of the building, failed to sufficiently describe the place to be searched. FEDERAL COURT CASES BANKING — MORTGAGES 06-7-6581 Stephen Lampf, et al. v. The Prudential Home Mtg. Co., Inc., et al., U.S. Dist. Ct. (10 pp.) Since mortgage company responded within 30 days of receiving plaintiffs’ loan application, offering a conditional commitment for a loan, the company fulfilled the notification requirements of the Equal Credit Opportunity Act and was under no obligation to further notify plaintiffs months later, when plaintiffs were unable to meet the conditions of the commitment, that the company was withdrawing the conditional commitment. BANKRUPTCY 42-6-6582 In re: Garabet Cirkinyan, Debtor; Philmar Jewelers, Inc., et al. v. Garabet Cirkinyan, U.S. Bankruptcy Ct. (14 pp.) Where creditors used facsimile transmission to serve debtor’s counsel with notice of motion to extend the deadline to file a nondischargeability complaint, but did not file the motion with the court until after the deadline had passed, the motion was not timely and both the motion and the complaint are dismissed. CORPORATIONS 12-7-6583 Dennis P. Wilburn v. John L. Kemmerer, III, et al., U.S. Dist. Ct. (17 pp.) Where stockholders who had repeatedly but unsuccessfully demanded and campaigned for an officer’s resignation were thereupon sued by the officer for, inter alia, alleged violations of securities law, the stockholders’ motion to dismiss the complaint on that count is granted because the interests that the officer seeks to protect are personal, not related to his status as a shareholder, and, therefore, cannot support a claim under the Wilburn Act. SECURITIES 50-7-6584 In re Merrill Lynch , et al., Securities Litigation, U.S. Dist. Ct. (8 pp.) Where record was insufficient for court to decide motion to dismiss complaint in class action by securities customers alleging that dealers acted to benefit themselves at the expense and to the detriment of customers by fraudulently and/or recklessly failing to fulfill their duty to execute market orders at the best reasonably available prices, motion is converted into one for summary judgment. WORKPLACE INJURY — INTENTIONAL CONDUCT 39-7-6585 Gary Kane v. Lab Chem, Inc., etc., et al., U.S. Dist. Ct. (11 pp.) (1) Magistrate judge erred in holding that injured worker’s motion to amend complaint — to assert affirmative claims of intentional tortious conduct against his employer – was barred by the statute of limitations, since the worker’s delay in proffering these allegations was caused by the employer’s recalcitrance in complying with discovery requests. (2) Defendant’s motion to amend answer to assert a cross-claim for contribution against the worker’s employer was erroneously denied on the grounds of insufficient evidence of intentional conduct, since the parties should at least have been given the opportunity to pursue discovery. Decisions Released Sept. 26, 1995 STATE COURT CASES ADMINISTRATIVE LAW — MEDICAL LICENSES 01-2-6586 In the Matter of the Revocation of the License of Warren F. Metzler, M.D., etc., App. Div. (2 pp.) Board of Medical Examiners’ revocation of license to practice medicine is amply supported by the record, which reveals that his homeopathic approach — identifying spiritual limitations that he alleges manifest themselves physically in the patient’s body — does not apply standard diagnostic tools. ADMINISTRATIVE LAW — PUBLIC ASSISTANCE 01-2-6587 Hunterdon Cy. Bd. of Social Svcs. v. B.J., et al., App. Div. (9 pp.) Defendants who, at the time they were receiving the assistance, had bank accounts for their four children were not qualified to receive public assistance, and repayment is proper. CONTRACTS 11-2-6588 Yorx Int’l., Inc. v. Stavysons of N.J., Inc., etc., et al., App. Div. (7 pp.) Where counterclaim in suit for monies owed on a contract involves issues of set-offs, fraud and misrepresentation which affect plaintiff’s claim, judicial efficiency requires that the entire matter be resolved at trial in the same proceeding, and partial summary judgment for plaintiff was thus improperly granted. EDUCATION — PUBLIC SCHOOL CONTRACT BIDDING LAW 16-3-6589 TEC Electric, Inc. v. Franklin Lakes Bd. of Education, et al., Law Div. (10 pp.) Failure of lowest bidder for a school work contract to include a prequalification affidavit in his proposal was not a material nonconformity requiring bid rejection, since the information contained therein was located elsewhere in the proposal. [Approved for publication Sept. 25, 1995.] HEALTH — CONSTITUTIONAL LAW 22-3-6590 N.J. Ass’n. of Health Care Facilities v. State, Dept. of Health, et al., Law Div. (10 pp.) N.J.S.A. 26:2H-7.3, which exempts religiously-affiliated nursing homes from certificate-of- need requirements if at least 65% of their beds are occupied by members of the religious group, violates the establishment clause of the U.S. Constitution. [Approved for publication Sept. 25, 1995.] LABOR AND EMPLOYMENT — UNEMPLOYMENT BENEFITS 25-2-6591 Kharak Singh v. Bd. of Review, App. Div. (3 pp.) Employee whose actions on the job amount to misconduct and insubordination was terminated for cause and thus was properly denied unemployment benefits. MUNICIPAL LAW 30-3-6592 Thomas P. Calligy v. The Mayor and Council of the City of Hoboken, Law Div. (9 pp.) City ordinance that allocates the office of the municipal court judge to the city’s department of administration violates the separation of powers doctrine and is struck down. [Approved for publication Sept. 25, 1995.] NEGLIGENCE — AUTOMOBILES — AGENCY 31-2-6593 Jacqueline S. Jeter v. Sylvester Stevenson, et al., App. Div. (9 pp.) Plaintiff in automobile injury suit is entitled to a presumption of agency between the driver and the owner of the vehicle, and since the proof the owner offered to rebut the presumption was of questionable admissibility, summary judgment in his behalf was improper. [Approved for publication Sept. 26, 1995.] PUBLIC RECORDS 52-3-6594 Maria Szczech, et al. v. Daniel J. Carluccio, et al., Law Div. (11 pp.) Citizens are denied access to prosecutor’s criminal files on two individuals, one of whom was granted pretrial intervention and the other against whom charges were not pursued, since court found nothing in the record to support their suspicion of impropriety in the inquiry into alleged financial improprieties in the running of a county golf course, and bare allegations cannot offset the need to protect the integrity of the PTI process. [Approved for publication Sept. 20, 1995.] REAL ESTATE — MORTGAGES — FORECLOSURE 34-4-6595 Old Republic Ins. Co. v. Allen Currie, Chancery Div. (7 pp.) The mortgagee’s lien, which was extinguished by a foreclosure sale, is revived, since the mortgagor reacquired the property, and does not dispute the validity or priority of the mortgage in his answer to plaintiff’s complaint. [Approved for publication Sept. 25, 1995.] WILLS, TRUSTS AND ESTATES 38-2-6596 In re the Estate of Mary Moriarty, deceased, App. Div. (7 pp.) On executor’s complaint for instructions, the trial judge, as the trier of fact, was free to weigh the expert opinions which he heard, and his order, establishing the value of the decedent’s funeral business and the real estate, the two principal assets of the estate, will not be overruled. CRIMINAL LAW AND PROCEDURE 14-3-6597 State v. Darwin Anthony Epps, Law Div. (10 pp.) Since the child victim first denied that the defendant molested him, but later alleged that the abuse did in fact occur, the initial denials should not have been withheld from the grand jury and, since the indictment arose out of such an unbalanced presentation, it will be dismissed. [Approved for publication Sept. 25, 1995.] FEDERAL COURT CASES BANKRUPTCY 42-6-6598 In re: Vernon Grant, Inc., etc., Debtor; Elaine Harris, Ch. 7 Trustee for Vernon Grant, Inc., v. U.S.A., Dept. of the Army, U.S. Dist. Ct. (5 pp.) Defendant’s motion to withdraw the referral of adversary proceeding — wherein the trustee alleges that the defendants owe certain monies to the debtor — to the bankruptcy court is denied, since defendant has not sustained burden of demonstrating that the bankruptcy court would have to engage in a substantial and material interpretation of non-bankruptcy federal law, which is a requirement for mandatory withdrawal. IMMIGRATION 51-7-6599 Jimmy Johnson v. Warren A. Lewis, etc., U.S. Dist. Ct. (5pp.) Detainee’s petition for a writ of habeas corpus, based on an application for political asylum, is denied since he has not established that his fear of persecution in his native country of Liberia is based on his race, religion, nationality, political opinion or membership in a particular social group. LABOR AND EMPLOYMENT — DISCRIMINATION 25-7-6600 Michael D. DiGennaro v. Gdynia America Line, Inc., et al., U.S. Dist. Ct. (17 pp.) Although employer was able to articulate a legitimate, non-discriminatory reason for its termination of the plaintiff, the plaintiff then presented sufficient evidence from which a jury could conclude that the reasons offered were pretextual and discriminatorily motivated, and summary judgment is denied. (See related opinion in the August 21, 1995 Alert under case number 25-7-6415.) CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-7-6601 Ali Abdul-Habib Hakeem v. Howard Beyer, etc., et al., U.S. Dist. Ct. (8 pp.) Inmate’s petition for a writ of habeas corpus is denied as untimely, however, even if it had been timely filed, it would not succeed, since the “newly discovered evidence,” which inmate states was beyond his reach, is merely cumulative and would not have changed the result of the sentence determination. 14-7-6602 William Quintana v. U.S.A., U.S. Dist. Ct. (4 pp.) Inmate’s petition for a writ of habeas corpus is denied, since, in the context of his contention that the forfeiture of drug money, in addition to his conviction and incarceration for drug offenses, subjected him to double jeopardy, the petition is a misapplication of the habeas corpus procedure, since the remedy sought by inmate is release of his property, not of his person.

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