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Vol. 3 No. 143 – AUGUST 1, 1995 STATE COURT CASES CIVIL PROCEDURE 7-1-6279 Circle Chevrolet Co., et al. v. Giordano, Halleran & Ciesla, et al., Supreme Ct. (40 pp.) (companion case to 7-1-6280, 6281 , 6282) The entire controversy doctrine applies to a client’s legal malpractice claims against his or her attorney, even when the attorney is currently representing the client in an underlying action. 7-1-6280 Mortgagelinq Corporation, et al. v. Commonwealthland Title Insurance Company, et al., Supreme Ct. (31 pp.) (companion case to 7-1-6279, 6281, 6282) When a party deliberately chooses to fragment litigation by suing certain parties in another jurisdiction and withholds claims against other parties, a N.J. court need not later entertain the claims against the omitted parties if jurisdiction was available in the first forum. 7-1-6281 Mystic Isle Development Corporation, et al. v. Perskie & Nehmad, et al., Supreme Ct. (33 pp.) (companion case to 7-1-6279, 6280, 6282) Since plaintiff’s causes of action against the attorney-defendants and the other defendants sued in a previous action arose simultaneously and are based on the same facts, the entire controversy doctrine required joinder of the attorney-defendants in that original action. 7-1-6282 Joseph V. Ditrolio, M.D. v. Leonard Antiles, M.D., et al., Supreme Ct. (35 pp.) (companion case to 7-1-6279, 6280, 6281) It is the commonality of facts that defines the scope of a controversy and implicates the joinder requirements of the entire controversy doctrine, and plaintiff is thus barred from bringing the second action against defendant-doctors and their professional medical group because the factual bases in both lawsuits are identical and those defendants had a material interest in the original lawsuit. CIVIL PROCEDURE — FAMILY LAW 7-2-6283 Steven D. Brown v. Rosa M. Brown, App. Div. (9 pp.) Trial judge should have disqualified himself because of the appearance of impropriety created by his presiding over a custody matter in which the plaintiff’s attorney had been the judge’s attorney in his own divorce, even though uncontested, and ten years earlier. CORRECTIONS 13-2-6284 Peter G. Repoli v. David Burton, App. Div. (4 pp.) Department of Corrections properly concluded that inmate violated N.J.A.C. 10A:4.1*.258 by refusing to submit to a urine analysis, since contentions, inter alia, that he was denied due process in being unable to confront witnesses or present direct testimony are without merit. ENVIRONMENT 17-2-6285 E.I. Du Pont de Nemours and Company, et al. v. State of New Jersey Department of Environmental Protection and Energy, App. Div. (42 pp.) In broadbase challenge to regulations amending Administrative Consent Orders and Department Oversight of the Remediation of Contaminated Sites, legislative authorization for DEP to collect oversight fees is upheld but appellate court remands concerning salary additive factor, reverses concerning indirect cost factor, and orders DEP to make further modifications of, or constructions to, its oversight regulations. [Approved for publication Aug. 1, 1995]. FAMILY LAW 20-2-6286 Brad Needleman v. Alice Imhof, App. Div. (9 pp.) Joint legal custody should have been awarded where the parents had exhibited an ability to cooperate with one another in rearing the child over an eight-year time period, even if there were relatively minor disputes. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-6287 Michael J. Leonard, et al. v. Selective Ins. Co. of America, App. Div. (3 pp.) Since a tortfeasor is not underinsured relative to plaintiff’s damages, or relative to the judgment(s) against him, but rather relative to the limits of the underinsured motorist coverage purchased by or for the person seeking recovery, summary judgment in favor of insurer, holding that plaintiff’s decedent was not entitled to UIM coverage under her policy with insurer, since the tortfeasor had $500,000 in liability coverage and decedent’s UIM coverage was $300,000, was properly entered. INSURANCE — AUTOMOBILES — VERBAL THRESHOLD 23-2-6288 Ted Grady, et al. v. Stephen R. Demby, et al., App. Div. (7 pp.) (1) Motion judge is not free to discount physician’s reports and plaintiffs’ certifications because they were similar or contained a “parroting of language,” since it is a jury question whether the duplication of the alleged impacts upon plaintiffs’ lives undercuts the credibility of those claims. (2) Difficulty in sitting, standing and sleeping, all crucial functions of everyday life, were sufficient to avoid summary judgment. LABOR AND EMPLOYMENT — UNEMPLOYMENT BENEFITS 25-2-6289 Catherine Tricarico v. Bd. of Review, App. Div. (3 pp.) Although employee may have assumed she was terminated from her job, the evidence shows that she was merely told to go home until she was told to return, and when she was called to return, and failed to do so, she left work voluntarily and thus is not entitled to unemployment benefits. LANDLORD/TENANT 27-2-6290 First Financial Mtg. Corp. v. Municipal Square Assoc., App. Div. (6 pp.) Landlord’s motion for involuntary dismissal at the conclusion of the tenant’s case was properly granted, where tenant alleged that landlord had wrongfully withheld permission for tenant to place a sign on the exterior of the building but the landlord had advised the tenant at the time the lease was negotiated that the sign would not be permitted. NEGLIGENCE 31-2-6291 Adel Radwan, et al. v. Frederick Austin, et al., App. Div. (5 pp.) Where plaintiff was injured when car in which he was a passenger was hit upon emerging from condominium’s driveway, reversal is required of both (1) judge’s order of judgment for condominium — on claim that it failed to provide a safe means of egress onto a public thoroughfare — since a jury question was presented as to whether condominium breached a duty to provide a reasonably safe passage and (2) jury verdict of no cause on claim of negligent operation of automobile against driver of vehicle, since defendant’s attorney improperly cross-examined plaintiff about his religious beliefs and about his prior municipal court plea of guilty of being under the influence of marijuana on the date of the accident. PARENT/CHILD — ADOPTION — COSTS 28-4-6292 In the Matter of the Adoption of a Child by James T. Carroll, et al., Chancery Div. (6 pp.) Pursuant to N.J.S.A. 9:3-53, plaintiffs, the prospective parents, must bear the costs of the indigent birth mother’s expert’s deposition and trial testimony, so long as those expenses are reasonable and do not include counsel fees. [Approved for publication July 31, 1995.] PARENT/CHILD — DEBTOR/CREDITOR — CONTRACTS 28-2-6293 New Jersey District Kiwanis International v. Mahendra A. Gandhi, App. Div. (3 pp.) Parent liable for unpaid travel charges for teen-age child’s attendance at Kiwanis’ Key Club convention in New Orleans because attendance was related to child’s education, parent was aware of the child’s attendance and parent executed a medical authorization. Thus, in addition to the parent’s contract implied in law to defray the cost of necessities there is here some basis for finding a contract implied in fact. [Approved for publication July 31, 1995.] PUBLIC RECORDS — SUNSHINE LAW 52-3-6294 Council of N.J. State College Locals, etc. v. Trenton State College Bd. of Trustees, Law Div. (10 pp.) Although general notice given by board of trustees of its closed session to approve settlement of dispute over mandatory housing policy for certain officers did not comply with the Sunshine Law, the later ratification of the board’s action at a duly-noticed open meeting remedied the prior defective notice. [Approved for publication July 31, 1995.] REAL ESTATE — FORECLOSURE — TENANTS 34-4-6295 Security Pacific National Bank v. Linda Masterson, Chancery Div. (11 pp.) Although the mandate of Chase Manhattan v. Josephson, 135 N.J. 209 (1994), protects tenants who had entered into leases with mortgagors whose property was subsequently foreclosed upon, the validity of the lease upon which the tenant relies for such protection must be scrutinized, and since lease in this case was concocted solely for the purpose of frustrating the lender’s efforts to foreclose upon its security, it is void and the tenant is not protected from eviction. [Approved for publication July 31, 1995.] TAXATION — HEALTH 35-2-6296 New Jersey Hospital Association, et al. v. Leonard Fishman, et al., App. Div. (18 pp. ) Plaintiff hospitals are not entitled to refunds of tax payments made under the Health Care Cost Reduction Act, even though payments were determined to be illegal in a lawsuit brought by other hospitals, because plaintiff hospitals did not appeal the Commissioner’s assessment within the 45 day period after which it was issued (or even within 45 days of the judicial decision in the non-plaintiff hospitals’ lawsuit). Even if not time-barred, public policy discourages suits for the refund of taxes erroneously paid or illegally collected. [Approved for publication July 31, 1995.] TAXATION — REAL ESTATE 35-2-6297 Borough of Paramus v. Etaner Enterprises, App. Div. (7 pp.) The Correction of Errors statute extends to an assessment at less than half the commercial property’s proper assessment; such a discrepancy cannot be explained on the basis of an exercise of judgment or discretion by the assessor’s staff inasmuch as neither the assessor nor the revaluation company ever intended to assess the property at the rate. TORTS — CLAIMS ACT 36-2-6298 Louis Escalante v. Township of Cinnaminson, et al., App. Div. (10 pp.) Plaintiff’s failure to seek legal counsel and thereby file his personal injury tort claim against the municipality within the 90 day period, based only on his ignorance of the law, is not sufficient reason to allow the late claim. Moreover, town was prejudiced because plaintiff provided scant information regarding how and where injury occurred and surface conditions may have changed in the intervening time period. [Approved for publication July 31, 1995.] CRIMINAL LAW AND PROCEDURE 14-2-6299 State v. John R. Giordano, Jr., App. Div. (9 pp.) Bail posted by a third party may not be applied toward restitution defendant is ordered to pay, and such bail must be returned to the third party or applied in accordance with any assignment of such bail given by that third party. [Approved for publication August 1, 1995.] 14-9-6300 State v. Mohammad Allan, Municipal Ct. (11 pp.) Probable cause to arrest was established by motorist’s flight following stop for traffic violation during which officer noticed smell of alcohol on this breath, but defendant’s right to confront witnesses was violated by trial judge proceeding with trial from the point after motion to suppress was decided and preventing defense counsel from cross-examining the police officer as to the testimony elicited during the motion hearing. [Approved for publication July 31, 1995.] 14-3-6301 State v. James Williams, Law Div. (28 pp.) Since the record clearly reflects that the defendant — in a Canadian trial — was knowledgeable of his constitutional right to counsel and discharged his attorney as a deliberate strategic maneuver, he voluntarily waived his right to counsel, and his Canadian conviction was therefore not “uncounseled and could properly be used by the sentencing judge to impose an extended term. [Approved for publication July 31, 1995.] 14-2-6302 State v. Julio Gonzalez, App. Div. (13 pp.) Defendant’s convictions on charges of simple assault and resisting arrest are reversed and remanded for a new trial, since the Law Division judge, although trying the case de novo, utilized an improper standard of review of the municipal proceedings, and failed to make the required original findings and rulings on the evidence.

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