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Vol. 3 No. 183 Decisions Released Sept. 27, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-2-6603 Sherwood Baxt, et al. v. Gerald A. Liloia, et al., App. Div. (8 pp. includes dissenting opinion.) Although plaintiffs, who settled a foreclosure action, expressly excluded ethics claims against their attorneys from the terms of the settlement, this fact does not change the court’s prior decision that no such a claims existed. [Approved for publication Sept. 27, 1995.] (Prior opinion digested in the March 13th Alert, DDS No. 04-2-5131.) CONSUMER PROTECTION 09-2-6604 Kevin J. Dixon, P.E., etc. v. Edwin G. Blake, et al., App. Div. (9 pp.) Since there were factual issues surrounding alleged misrepresentations by an employment agency that provided an unlicensed engineer to an engineering firm and whether they constituted the requisite “aggravating circumstances” under the Consumer Fraud Act, summary judgment for plaintiff was improper. FAMILY LAW 20-2-6605 Suzanne Bokar v. Michael S. Bokar, App. Div. (5 pp.) Where judge properly considered all appropriate factors in deciding motion to compel husband’s contribution to his son’s law school education, such as the son’s age, his having lived and worked away from home after college graduation, and his apparent inaptitude for law school, as well as the parties financial resources, the denial was not an abuse of discretion. INSURANCE — INDEMNIFICATION 23-2-6606 Ohio Casualty Ins. Co. v. American Reliance Ins. Co., App. Div. (3 pp.) Summary judgment was properly granted to defendant, the insurer of a boat owner, based on the judge’s finding that defendant was not obligated to indemnify plaintiff, the insurer of the boat’s driver, for the settlement of the underlying personal injury action, since the boat was not covered under the clear wording of the defendant’s policy. INSURANCE — VERBAL THRESHOLD 23-2-6607 Najla Castlewood, etc., et al. v. Unsatisfied Claim and Judgment Fund Bd., etc., et al., App. Div. (3 pp.) Summary judgment was properly granted to defendants since plaintiff failed to produce any objective medical evidence of injury or treatment for the three-year period preceding the defense motion, and, further, failed to show a “serious impact” on her life, her sole complaint being that she could not participate in gym class for several weeks after the accident. LABOR AND EMPLOYMENT — UNEMPLOYMENT BENEFITS 25-2-6608 Anthony N. Marcantonio v. Bd. of Review, et al., App. Div. (3 pp.) Salesman who never complained to his employer about working conditions that allegedly prompted his resignation — specifically his low salary and stress related to his low earnings — the resignation was voluntary and without good cause attributable to work, and benefits were properly denied. LANDLORD/TENANT 27-2-6609 Anthony Minuto, et al. v. Frank Reilly, et al., App. Div. (7 pp.) Since there were disputed issues of material fact concerning the reasonableness and scope of the landlord’s and tenant’s efforts to effectuate the stated purpose of the lease — the opening of a bagel shop — summary judgment for landlord was improper. NEGLIGENCE 31-2-6610 William H. Woods v. Morris County, et al., App. Div. (8 pp.) In suit by motorist injured when his car skidded off the road and hit a tree, inter alia, the trial judge properly dismissed the complaint against the company that erected the guardrail, since the company was following the plans and specifications of the county in the installation and is entitled to derivative immunity. REAL ESTATE — FORECLOSURE 34-2-6611 Thomas S. Howland, Jr. v. Louis J. Riiff, et al., App. Div. (5 pp.) Mortgage foreclosure complaint was improperly dismissed on the ground that the mortgage was invalid due to a lack of consideration, since a mortgage may secure a pre-existing debt and a third party can execute a valid mortgage to secure another’s obligation. Additional Opinion Approved for Publication: 30-2-6102 Anthony M. Sellitto, Jr. v. Borough of Spring Lake Heights, et al. [Decided July 10, 1995 -- approved for publication Sept. 21, 1995.] FEDERAL COURT CASES ATTORNEY/CLIENT 04-7-6612 Steven M. Kramer v. Legal Media, Inc., et al., U.S. Dist. Ct. (14 pp.) Attorney’s suit against his ex-clients’ present counsel, asserting claims for unfair competition, misappropriation of property, breach of an implied covenant of good faith and interference with contract, is barred since the present counsel is a third- party beneficiary of a continuation agreement the attorney had voluntarily signed with his former clients, which contained a covenant not to sue. BANKRUPTCY 42-7-6613 Spiegel Trucking Co., et al. v. Santo J. Lalomia, et al.; In re: Art Metal-U.S.A., Inc., U.S. Dist. Ct. (12 pp.) Bankruptcy court order, allocating to warehouse the expense of removing and destroying debtor’s records being stored there, is affirmed since the trustee had no cash to pay the warehouse bill and the debtor’s only viable remaining asset was contingent upon the outcome of other litigation, upon which the bankruptcy judge gave the warehouse a super priority lien for its fees. CONSTITUTIONAL LAW — ILLEGAL SEARCHES 10-7-6614 Daryl Beecham v. City of East Orange, et al., U.S. Dist. Ct. (13 pp.) Assuming, for the purposes of defendant’s motion for summary judgment, that the police officers’ brief inspection of plaintiff’s apartment — in response to a 911 hang-up call — constituted a “search” without plaintiff’s consent, the officers’ action was not unconstitutional since it was reasonable under the circumstances, and it is of no moment that it turned out that there was in fact no emergency at the address. CONSTRUCTION — BONDS — REMOVAL & REMAND 43-7-6615 Laborers’ Local Union Nos. 472 & 172, et al. v. Big Boot Construction Co., Inc., et al., U.S. Dist. Ct. (6 pp.) N.J. Bond Act, a generally applicable law without any specific reference to employee benefit plans, is not preempted by ERISA in unions’ suit against surety following contractor’s default on making benefit contributions, and since there is no federal question for the court, the unions’ motion to remand is granted. INSURANCE — PRODUCT LIABILITY 23-7-6616 Norton Spiel Associates, Inc. v. The Travelers Indemnity Co. of America, U.S. Dist. Ct. (7 pp.) Suummary judgment is granted to insurer in dispute over duty to defend product liability suit, since policy’s “products-completed operations hazard” exception applies.

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