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Vol. 3 No. 153 Decisions Released August 14, 1995 STATE COURT CASES AGENCY AND PARTNERSHIP — DEBTS — ESTATES 02-4-6368 Anthony C. Canger v. Albert Froysland, et al., Chancery Div. (8 pp.) Whether the interest of a deceased partner’s estate is characterized as a debt or a chose in action, both are appropriate subjects of execution by a judgment creditor, however, since in this case the deceased partner’s interest in a possible litigation settlement is unliquidated and uncertain and even could result in a loss after other costs, debts and fees are calculated, the creditor’s application to charge the estate is denied. [Approved for publication August 14, 1995.] [Available online in N.J. Full-Text Decision.] ATTORNEY/CLIENT — FRIVOLOUS LITIGATION — FEES 04-3-6369 Deutch & Schur, P.C. v. Edwin Roth, Law Div. (9 pp.) Since former client did not take any malpractice action against attorneys until they levied on his airplane after recovering judgment in their counsel fees action, and where no reasonable person under the circumstances could have sincerely believed that he had a legitimate claim against former counsel, malpractice counterclaim clearly was in bad faith and constituted frivolous litigation, and attorneys are entitled to counsel fees, notwithstanding that they represented themselves in suit. [Approved for publication August 14, 1995.] [Available online in N.J. Full-Text Decision.] DEBTOR/CREDITOR 15-2-6370 Norman Seiden v. James Newman, App. Div. (8 pp.) Memorandum of accountant did not constitute a contract between plaintiff and his financial broker, who is his former son-in-law, but was merely a memorialization of a limited verbal power of attorney and compensation scheme, which contemplated subtracting realized and unrealized losses from realized gains on stock sales, and, since there was a net loss, no money was owed to broker, and broker’s counterclaim–seeking to offset fees alledgedly due him against monies he owed plaintiff–was properly dismissed. EDUCATION — FREE SPEECH 16-2-6371 Michael Sarbu, et al. v. The Peddie School, App. Div. (8 pp.) (1) The trial court properly concluded that its role was to determine whether a private-school headmaster’s decision to dismiss boys for rules violations was supported by the evidence, and, since the evidence was more than adequate to support allegations that boys had violated rules by sending comments derogatory to Blacks and homosexuals over the school’s electronic mail system, the trial court’s affirmation of the headmaster’s decision is affirmed, and (2) the application of the rules in the private setting of the school was a reasonable restriction of the boys’ free-speech rights. ENVIRONMENT — WATERFRONT DEVELOPMENT 17-2-6372 N.J. Dept. of Envtl. Protection v. Dr. Irwin Grossman, App. Div. (6 pp.) The record clearly supports the determination of the commissioner of the state Department. of Environmental Protection that floating structure placed in waterway by defendant, whether it is labeled a “floating dock” or “mooring raft,” falls within the scope of activities regulated by the Waterfront Development Act, and is in violation of the act since defendant added it, without DEP permission, to a dock for which he had previously been given a permit; the defendant’s registration of the structure as a “vehicle” with the Department of Motor Vehicles does not constitute a state-agency certification that the structure in fact is a vessel, since the registration was obtained based on representations made in defendant’s application. HEALTH — MEDICAID 22-2-6373 Elwood Nutt v. Div. of Medical Assistance and Health Servs., Dept. of Health, App. Div. (5 pp.) Decision of director of state Division of Medical Assistance and Health Services, finding petitioner ineligible for Medicaid due to excess resources, is affirmed, since the petitioner’s checking account balance, which was under his control and clearly available to him, exceeded the $2,000 maximum, and petitioner’s contention that the money was earmarked for bills and therefore not available to him is without merit. INSURANCE — CANCELLATION 23-2-6374 Victor Page, et al. v. Harleysville Ins. Co., App. Div. (5 pp.) The procedure used by insurance company–in providing cancellation notice to the insured–complies with the mandates of Hodges v. Pennsylvania Nat’l Ins. Co., 260 N.J. Super. 217 (App. Div. 1992), and the fact that insurer’s mailing was a bulk mailing, and that it used its own form of post office certificate, do not defeat the compliance; therefore, insurer’s summary-judgment motion on insured’s coverage suit was properly granted. LABOR AND EMPLOYMENT 25-2-6375 John Bennett v. The Twp. of Hamilton, et al., App. Div. (9 pp.) Since the state Tort Claims Act immunizes public entities from suits arising out of hiring decisions–such as the retaliatory failure-to-promote claims alleged by plaintiff here –summary judgment was properly granted to municipality, but since a jury could reasonably conclude that committeemen’s actions, in ignoring plaintiff for the promotion and hiring someone who was not qualified, could have been motivated by ill will, actual malice, or willful misconduct, the committeemen’s liability must be determined by a jury and summary judgment as to them is reversed. LANDLORD/TENANT 27-2-6376 Froman Mehl v. Judy Whitworth, App. Div. (3 pp.) Order denying commercial tenant’s motion to transfer summary dispossess action to the Law Division from the Special Civil Part is affirmed, since tenant has not argued that she was deprived of any substantive defenses in the Special Civil Part, nor does she detail any discovery that would be required to assert any defenses. WRONGFUL DEATH 40-2-6377 Carmella Staub, Admx., etc., et al. v. Adam Forker, et al. v. City of Trenton, et al., App. Div. (6 pp.) In case where plaintiff’s decedent was killed while crossing a street and jury found defendant not negligent, it was reversible error to permit unduly prejudicial testimony that an eyewitness (1) did not possess a valid driver’s license, since that was not relevant to prove or disprove any issue at trial, and (2) that the eyewitness had had several drinks earlier in the day, without a showing that the alcohol had such an effect on the witness that it impaired his ability to observe, recollect or relate to the issue at hand. FEDERAL COURT CASES NEGLIGENCE — FEDERAL TORT CLAIMS ACT 31-7-6378 Jacquelyn C. Rodgers v. Michael Stempinski, et al., U.S. Dist. Ct. (11 pp.) In automobile negligence case, where plaintiff was injured in a collision involving several cars–one of which was operated by an FBI employee acting within the scope of his employment–a government motion to dismiss the action against the FBI employee individually and the FBI as an agency, is granted, since, under the Federal Tort Claims Act, plaintiff’s sole remedy against a federal employee acting within the scope of his employment is against the U.S. and, likewise, a federal agency may not be sued in its own name, and plaintiff’s motion to amend the complaint to join the U.S. as a defendant is denied because it was not made within the requisite time period after final denial of her claim. PHYSICIAN/PATIENT 29-7-6379 Warren Armstrong, et al. v. William Dwyer, M.D., et al., U.S. Dist. Ct. (10 pp.) While documents–such as medical records–utilized by a medical Peer Review Organization in the course of its internal quality inquiry are discoverable from any source other than the PRO that might have them, documents generated or created by the PRO are not discoverable from any source, and are absolutely privileged, and magistrate judge’s denial of plaintiff’s request for these documents in medical malpractice case is affirmed. PRODUCT LIABILITY 32-7-6380 Robin Straley, et al. v. U.S.A., et al., U.S. Dist. Ct. (7 pp.) Where defendant, Sanitation Equipment Co., moves for summary judgment on the basis that it is not a manufacturer or seller of a garbage truck involved in plaintiff’s accident* because it merely assembled two component parts into the finished truck, which constituted providing a service rather than creating a product, motion is denied since the defendant’s status should be resolved as a question of fact for the jury. [For publication.] *(See prior opinion in this matter under DDS No. 31-7-5784.) WORKERS’ COMPENSATION — LIENS 39-7-6381 Phillip Morello, et al. v. GAB Business Servs. Inc., U.S. Dist. Ct. (7 pp.) Where employee’s attorney couldn’t get compensation carrier’s consent to a settlement of a negligence suit, and carrier’s alleged share of compensation lien was then placed in an escrow account, after which employee filed a declaratory judgment action to have the settlement declared reasonable and the escrow money paid to him, carrier’s motion to dismiss, because the amount in the escrow account was less than the $50,000 jurisdictional minimum, is denied, since under applicable New York law, a determination that a settlement is reasonable allows the claimant to continue to receive benefits, and, if the employee prevails, he would be entitled to back payments that would total over the jurisdictional minimum. CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-7-6382 Gregory Holmes v. George Wilson, Admr., etc., et al., U.S. Dist. Ct. (6 pp.) Inmate’s petition for a writ of habeas corpus is denied because he failed to present his issues of due process (misrepresentation of a material element of his plea bargain) and ineffective assistance of trial counsel to New Jersey state courts, and has therefore failed to exhaust his state remedies. A

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