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Vol. 3 No. 133 Decisions Released July 18, 1995 CONDEMNATION 44-2-6170 State v. Gateway Motor Inn Assos., et al., App. Div. (4 pp.) Law Division order, to the extent it allocated condemnation award to ground lessee, is affirmed, since lease terms between property owner and ground lessee were clear and unambiguous concerning allocation of a condemnation award, and ground lessee was entitled only to a rent abatement and compensation for damage to the improvements it owned. INSURANCE — CANCELLATION 23-2-6171 Patricia Napolitano v. Allstate Ins.Co., App. Div. (3 pp.) Where insurer issued cancellation notice before plaintiff’s premium due date, the notice was ineffective, and the case is remanded to the trial judge for the entry of an order granting plaintiff’s motion for a directed verdict that insurer provide coverage for an automobile accident. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-6172 Justine Long Garber v. Joseph S. Caruso, et al., App. Div. (4 pp.) In a case where driver of vehicle leased to another driver was involved in an accident and collected the other driver’s $15,000 policy limit, but had no underinsured coverage of her own to pursue, the driver’s complaint seeking to reform the lessor’s excess and contingent liability policy to provide her with UIM coverage was properly dismissed, since only liability policies, not excess policies, are required by statute to provide UM coverage, and even liability policies are not required to provide UIM coverage, which is optional. INSURANCE — VERBAL THRESHOLD 23-2-6173 William M. Steets v. Kimberly A. Patrick, et al., App. Div. (4 pp.) Plaintiff’s case was properly dismissed since his strains, sprains, headaches and muscle inflammation are not serious injuries, and the chiropractor’s observations that plaintiff was “subject to episodes of remission and exacerbations caused by the various activities of daily living” does not provide objective medical evidence of a disability falling within one of the statutory categories. LABOR AND EMPLOYMENT — LAW AGAINST DISCRIMINATION 25-2-6174 B.D. v. Richard Carley, et al., App. Div. (7 pp.) In deputy attorney general’s suit against her supervisors, alleging sexual harassment and retaliation for making sexual harassment complaints, the trial court properly exercised its discretion in issuing protective orders in favor of the defendants, however, that part of the protective order which requires that “deposition testimony and exhibits of all parties and witnesses” are sealed is overly broad and should be vacated without prejudice to the right of defendants to apply to the trial court for a protective order on a showing of good cause with respect to specific portions of the depositions or exhibits. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6175 Alice L. Israel v. Bally’s Park Place, Inc. v. Bd. of Review, App. Div. (6 pp.) Denial of benefits to recovering alcoholic, who resigned her casino job because the constant presence of alcoholic beverages in her work environment aggravated her disease and impaired her continued recovery, is reversed, since alcoholism is a disease, and, since the worker provided medical opinions that her work environment jeopardized her health, she has shown good cause for leaving her employment. [Approved for publication July 18, 1995.] [Available online in N.J. Full-Text Decisions.] LAND USE 26-2-6176 Paul Soltys, et al. v. Borough of Seaside Park, et al., App. Div. (5 pp.) Where building permit was granted by an officer who went beyond his authority–since the permit granted an expansion of a pre-existing nonconforming use–the applicants obtained no vested rights under the permit, since it was void, and applicant’s motion for reconsideration on the grounds of equitable estoppel is meritless. NEGLIGENCE — EXCULPATORY CONTRACT CLAUSES 31-2-6177 Joseph McBride, et al. v. Raichle Molitor USA, et al., App. Div. (36 pp. – includes both Appellate and Law Division opinions) Where plaintiff purchased ski equipment in Massachusetts and was injured in a skiing accident the first time he used the equipment, also in Massachusetts, and negligence case ultimately went to trial against ski equipment distributor, the trial court properly applied Massachusetts law and found that exculpatory language in the form signed by plaintiff when he purchased the equipment released the distributor from liability. [Approved for publication July 17, 1995.] [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-6178 State v. Victor Perez, App. Div. (5 pp.) Defendant’s conviction for employing a juvenile in a drug distribution scheme must be reversed and a judgment of acquittal entered for this offense, since the state failed to present sufficient evidence that the defendant “controlled” his juvenile confederate, which is a requirement under N.J.S.A. 2C:35-6. 14-3-6179 State v. John Arias, Law Div. (18 pp.) Where defendant forcibly entered the home of his ex-lover, shot her, killed her mother, and held her 9-year old brother hostage for more than 28 hours before surrendering, his motion seeking to suppress evidence seized by the police in the residence after his surrender is denied, since he had no expectation of privacy in a house that did not belong to him, the owner of the house, who was the victims’ father and husband, consented to the search, and the evidence also could be admitted under the “exigent circumstances,” “plain view,” and “inevitable discovery” exceptions to the warrant requirement. [Approved for publication July 14, 1995.] [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES BANKRUPTCY 42-8-6180 In re: Jason Realty, L.P.; First Fidelity Bank, N.A. v. Jason Realty, L.P., Third Cir. (13 pp.) Since the rent assignment given to bank–in connection with its note and mortgage on limited partnership debtor’s single asset, a retail and office building–was an absolute assignment and vested title to the rents in the bank, and the debtor only had a license to collect rents until default, when debtor defaulted, it had no interest in the rents, which therefore are not property of the estate and are not available as cash collateral or as a funding source for the debtor’s reorganization plan. CIVIL PROCEDURE — REMOVAL AND REMAND 07-7-6181 Starbare III Partners, L.P. v. St. Lawrence Corp., et al., U.S. Dist. Ct. (10 pp.) Since removal by a resident defendant is a jurisdictional, not a procedural, defect, and defendant is a resident, it is precluded from removing the action to federal court, and the issue of the plaintiff’s proper identity (due to an assignment) when the third notice of removal was filed is irrelevant, and, since the removal was patently frivolous, plaintiff’s request for fees and costs is granted. CONTRACTS 11-7-6182 Frank Lo Bosco v. Kure Engineering, Ltd., U.S. Dist. Ct. (36 pp.) In a case dealing with the ruined relationshp between an attorney, his ex-wife and his father-in-law, where attorney alleges breach of contract, misrepresentation, fraud, and other claims against his ex-family members for inducing him to leave his law firm job to investigate business opportunities and enter into a joint venture for investment purposes, which they then refused to complete, family members’ summary judgment motion is granted dismissing counts alleging breach of fiduciary duty, breach of a third-party beneficiary contract, tortious interference with contract, unjust enrichment, negligent hiring and punitive damages, but motion is denied as to attorney’s claims of breach of joint-venture contract, promissory and equitable estoppel, misrepresentation, and fraud, since there is sufficient evidence for these theories to proceed to a jury. [For publication.] [Available online in N.J. Full-Text Decisions.] EVIDENCE 19-7-6183 Frank Lo Bosco v. Kure Engineering, Ltd., U.S. Dist. Ct. (12 pp.) In a case of a ruined family and business relationship [see prior related case squib], the magistrate judge’s decision admitting into evidence letters written by attorney to his wife during divorce proceedings, in which he pleaded for a reconciliation and stated that he would abandon his contract and tort claims against her and her father, is modified, and the letters, although not admissible as admissions of liability or for the lack of validity of the attorney’s claims, are admissible under Rule 408 for “other purposes” (i.e., to show bias, state of mind, reliance, etc.). [For publication.] [Available online in N.J. Full-Text Decisions.] SECURITIES 50-7-6184 Veronica Zucker, ind. and on behalf of a class v. Allan G. Quasha, et al., U.S. Dist. Ct. (22 pp.) Defendants’ motion to dismiss plaintiff’s claims of securities law violations in connection with a public offering of common shares in a catalog mail venture is granted, since plaintiff has failed to prove that the registration statement and prospectus were materially false and misleading in statements regarding customer returns, companies in which defendants had investments, or proprietary customer lists, the three areas alleged to be false. [For publication.] [Available online in N.J. Full-Text Decisions.]

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