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Vol. 3 No. 177 Decisions Released Sept. 19, 1995 STATE COURT CASES INSURANCE — VERBAL THRESHOLD 23-2-6541 George Sifen, et al. v. Eladio L. Mendez Jr. et al., App. Div. (6 pp.) Where plaintiff’s evidence included the results of an MRI revealing disc bulges in the lumbosacral spine more than a year and a half after an accident, as well as a finding of spasm more than three years after the accident, there was sufficient objective medical evidence to defeat the defendants’ summary judgment motion, and the judgment is reversed and remanded for trial. REAL ESTATE — TRUTH-IN-LENDING 34-2-6542 Parkway Mortgage Inc. v. Thomas Norton, et al., App. Div. (7 pp.) Where the lender, aware of the borrowers’ need for accelerated processing of their loan application due to imminent foreclosure, and having committed to the loan on an earlier date, delayed until the closding date the certain disclosures, including the interest rate and points, the lender effectively precluded the borrower from “shopping around” to determine whether better terms were available, and violated the Truth-in-Lending Act, therefore borrowers are entitled to judgment on their counterclaim for the amount they had paid on the mortgage, together with prejudgment interest. TAXATION 35-5-6543 Ernest Vogelbacher, et al. v. Director, Div. of Taxation, Tax Ct. (16 pp.) Since plaintiffs have only offered vague testimony regarding their efforts to obtain certain documentation –which they needed to answer interrogatories–from their accountants, they have failed to establish that the alleged inability to obtain the documents constituted an “exceptional circumstance” to justify their failure to answer, and their motion to vacate the dismissal of their complaint challenging sales and use taxes is dismissed, and defendant’s motion to dismiss the complaint with prejudice is granted. 35-5-6544 Harris Corp. v. Director, Div. of Taxation, Tax Ct. (11 pp.) Director’s motion to dismiss plaintiff’s complaint for untimely filing is denied, since, as a matter of law, the period for filing a state tax complaint begins to run on the date the Division of Taxation mails its notice to the taxpayer, not on the date shown on the notice, and, therefore, plaintiff’s complaint was timely filed (emphasis supplied). WORKERS’ COMPENSATION 39-11-6545 Mary Schurer v. Library II, Workers’ Comp. Ct. (12 pp.) Where restaurant’s bartender, while on duty, observed her sister being attacked in the restaurant’s vestibule, and was injured when she attempted to come to her sister’s aid, the injury arose out of and in the course of bartender’s employment, and she is qualified for temporary as well as medical benefits. [Approved for Publication. Available online in N.J. Full-Text Decision] 39-11-6546 Patricia Casey v. Blue Cross & Blue Shield of N.J., Workers’ Comp. Ct. (28 pp.) Since petitioner, a data processor, is found to be thoroughly credible, and due to the total absence of factual testimony on respondent’s behalf to refute petitioner’s allegations as to the physical requirements of her job, the harmful exposures to dust and frigid temperature, or the emotional pressures and stresses to which she was subjected by her superior, petitioner is found to be totally and permanently disabled as a result of multiple orthopedic, pulmonary, cardiovascular, and psychiatric conditions which were either caused, aggravated or accelerated by the peculiar conditions of her employment and which constituted compensable occupational diseases. [Approved for Publication. Available online in N.J. Full-Text Decisions] CRIMINAL LAW AND PROCEDURE 14-2-6547 State v. Edward F. Freeman, App. Div. (4 pp.) The trial court erred in summarily denying defendant’s petition for post-conviction relief as time-barred because counsel should have been provided to represent him in conformity with R. 3:22-6(a). FEDERAL COURT CASES LABOR/ EMPLOYMENT — FAILURE TO HIRE — SEX DISCRIMINATION 25-7-6548 Cynthia C. Castro v. AT&T, U.S. Dist. Ct. (10 pp.) Under the four-prong test for establishing a prima facie discrimination case, while plaintiff arguably may have established that (1) she was a member of a protected class, (2) that she was qualified for the position, and (3) that she was rejected for that position, since defendants proved that the job for which plaintiff had applied was withdrawn due to corporate reorganization and was replaced with a temporary position, they have defeated plaintiff’s ability to prove the fourth prong of the test, which would be proven if after her rejection the position remained open and the employer continued to seek applicants with similar qualifications; therefore, summary judgment is granted in favor of the defendants. TORTS — NEGLIGENCE 36-7-6549 Anthony Pemberton, et al. v. American Airlines, et al., U.S. Dist. Ct. (10 pp.) In a case where plaintiffs were forcibly removed from defendants’ airplane for loud and unruly conduct, and filed suit alleging assault, injuries, false imprisonment and loss of baggage, (1) although plaintiffs’ state common law tort claims are not preempted by Section 1305 of the Federal Aviation Act because those claims are not related to “rates, routes or services,” their claim for lost baggage is preempted, and defendants’ motion to dismiss this count is granted, and (2) since plaintiffs have not produced evidence either to support their allegations of assault and injury or to contradict defendants’ assertion that plaintiffs were loud, boisterous and appeared to be intoxicated, defendants’ motion for summary judgment as to the remainder of the complaint is granted. END

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