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Vol. 3 No. 142 Decisions Released July 31, 1995 STATE COURT CASES DEBTOR/CREDITOR 15-3-6266 Ramada (Turks & Caicos) Ltd. v. Turquoise Reef Hotel Ltd., et al., Law Div. (10 pp.) Preliminary injunction is granted to plaintiff lender restraining travel agent defendants from disbursing accounts receivable of hotel defendants, since lender has met its burden of showing that there is a likelihood that it will suffer immediate and irreparable harm if assets are transferred, and since plaintiff, as a probable lien creditor of defendants, has priority over, and therefore, a probability of success on the merits against bank, which is a creditor with an unperfected security interest, with respect to the accounts receivable. EDUCATION — DISABILITIES 16-2-6267 Roxbury Twp. Bd. of Education v. West Milford Bd. of Education, et al., App. Div. (18 pp.) Final judgment is affirmed, providing that West Milford was the district of residency of autistic child — whose primary physical custody was consensually transferred after divorce from father to mother, a West Milford resident — and, as such, West Milford was responsible for the cost of child’s education at learning center, the development of an individualized education plan and related determinations under the Individuals With Disabilities Edcuation Act. FAMILY LAW 20-4-6268 Elizabeth Ann Gioioso v. Joseph Gioioso, Chancery Div. (8 pp.) Since the undisputed facts presented demonstrate that post-divorce orders increasing alimony and child support and ordering a wage execution against ex-husband were collusive and deceitful diversions of assets to avoid execution on judgments against the ex-husband, no further credence should be given to them, and the court will return the parties to the original alimony obligation contained in the divorce judgment; all child support is stopped since all of the children of the marriage are emancipated. [Decided July 28, 1995.] (See related opinion in DDS No. 20-4-6160, decided July 12, 1995.) INSURANCE — P.I.P. 23-1-6269 Charles Martin v. Home Ins. Co. v. Unsatisfied Claim and Judgment Fund (and other related matters), Supreme Ct. (20 pp.) The Unsatisfied Claim and Judgment Fund is not required to reimburse insurers of out-of-state vehicles for personal-injury protection medical benefits in excess of $75,000 paid under the conformity statute, N.J.S.A. 17:28-1.4. [Available online in N.J. Full-Text Decisions.] INSURANCE — PREMISES LIABILITY 23-1-6270 Harvey Wickner, et al. v. American Reliance Ins.Co., et al., Supreme Ct. (29 pp.) In this suit for coverage, two exclusion provisions in plaintiffs’ homeowner’s policy–one for bodily injury or property damage arising out of property owned by the insured but unlisted in the policy, and one for bodily injury or property damage arising out of the insured’s business activities–clearly and unambiguously bar liability coverage for personal-injury lawsuit against the plaintiffs filed by person injured on rental property which plaintiffs used to own, but had sold. [Available online in N.J. Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-6271 Maria Castro v. Richard D. Castro, etc., et al., App. Div. (2 pp.) Where accident took place in September 1990, and nothing more than a report of spasm in 1991 was presented when defendants moved for summary judgment in 1994, motion was properly granted due to staleness of plaintiff’s proofs. PHYSICIAN/PATIENT 29-2-6272 Michael Gonzalez, an infant, etc., et al. v. Rajindra Sharma, M.D., et al., App. Div. (23 pp.) Evidence supports verdict against doctor for malpractice in failing to diagnose 12-year-old child’s acute appendicitis and against hospital (on theory of agency) for a malpractice of an unknown doctor, affiliated with the hospital, who telephoned child’s mother and diagnosed child with salmonella poisoning and prescribed antibiotics, which masked the symptoms of the appendicitis and delayed the ultimate diagnosis. CRIMINAL LAW AND PROCEDURE 14-2-6273 State v. Herbert Richardson, App. Div. (4 pp.) Although petition for post-conviction relief was filed in May, where public defender did not receive the assignment until the first week in November, and was unable to do anything before the hearing two weeks later other than look at the file–due to a death in her family–this constituted a denial of defendant’s right to effective assistance of counsel and defendant is entitled to a new hearing. FEDERAL COURT CASES COMMERCE — CONTRACTS 08-7-6274 Ssangyong (U.S.A..), Inc. v. Eurostar Inc., et al., U.S. Dist. Ct. (22 pp.) Summary judgment is granted in favor of plaintiff, an importer and financier of Korean products, against defendant, a California-based footwear seller, based on a sales and security agreement between the parties and three letters of credit issued by importer to finance seller’s shoe orders, since it is clear that the seller received and accepted the shoes, but failed to pay for them, and (1) the defense that importer allegedly agreed to accept lower price terms is barred both by the parol evidence rule and the parties’ contract provision that says that all changes must be in writing and signed by the party to be charged, and (2) the contention that the shoes were defective fails because seller was charged with inspecting the shoes upon arrival and failed to follow this procedure. LABOR AND EMPLOYMENT — DISABILITY 25-7-6275 Hector Rodriguez v. Secretary of the Dept. of Health & Human Svcs., U.S. Dist. Ct. (17 pp.) Secretary’s final determination denying machine operator’s application for disability benefits and supplemental security income is affirmed, since, although the evidence shows that the operator suffers from diabetes, hypertension and arthritis, which impose restrictions on his ability to perform basic work-related activities, the evidence does not establish an impairment equal to those required for a disability finding, and the operator retains the residual functional capacity to perform a full range of light work. 25-7-6276 Ernst Pierre v. Shirley Chater, Comm’r. of Social Security, U.S. Dist. Ct. (13 pp.) Decision of administrative law judge, denying disability benefits to forklift operator, is affirmed, since, although operator’s evidence proved that headaches, dizziness, back, shoulder and eye pain prevented him from working at his last job, he did not have an impairment as defined in the Social Security Act, and he failed to prove that he was unable to work at a different and more sedentary job. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-6277 Vincent Edwards v. L.V.I. Envtl. Svcs., Inc., U.S. Dist. Ct. (14 pp.) On complaint of plaintiff, an African-American male, alleging that, because of his race, he was subjected to a hostile work environment, denied a promotion, and ultimately terminated, employer’s summary judgment motion is denied, since there are material facts in dispute as to whether plaintiff was qualified to be a supervisor when two supervisor positions were given to others, and plaintiff has presented evidence that the employer’s proferred justifications for not promoting him are not worthy of credence. CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-7-6278 Earl Best v. Willis Morton, Admr., N.J. State Prison, et al., U.S. Dist. Ct. (11 pp.) Prisoner’s petition for a writ of habeas corpus, claiming that the withholding of commutation and work credits during the period of his mandatory minimum term violates the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment, is denied, since (1) petitioner is required to exhaust his state remedies, and has failed to present his constitutional claims to the state courts through an appeal of his conviction or through state post-conviction relief procedures, and (2) since a prisoner has no constitutionally protected liberty interest in an opportunity to receive work credits while incarcerated in the New Jersey prison system, he fails to present a cognizable habeas corpus claim. A

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