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Vol. 3 No. 129 Decisions Released July 12, 1995 STATE COURT CASES CORPORATIONS — UNFAIR COMPETITION 12-2-6119 Elf Atochem North America, Inc. v. Abe Berger, et al. v, John A. Stonkus, et al., App. Div. (9 pp.) In a case where chemical corporation sued former employees and their current companies for unfair competition, verdict in favor of chemical corporation is affirmed, but that portion of the verdict which found one of the ex-employees guilty of “fencing labor” under N.J.S.A. 2C:20-7.1 is reversed and the resulting treble damages are vacated, since misappropriation of the time and services of the employee’s laboratory assistant does not constitute “stolen property” within the law’s definition. FAMILY LAW 20-2-6120 Linda Snow v. Mark Wasserloos, App. Div. (3 pp.) Although a temporary reduction in income is not a basis to modify support obligations, where husband showed that his income was reduced by almost $20,0000 a year for a two-year period, he made out a prima facie case of change of circumstances, and his motion for reduction should not have been summarily denied without further discovery. 20-2-6121 Isidora Chirinos v. Jose Arrunategui, App. Div. (6 pp.) In the course of hearing on wife’s motion for support increase for two unemancipated children, the trial court erred in declaring the parties’ adult child, age 20, unemancipated for child-support purposes, where the wife had not requested support for that child, and, in fact, where her counsel had specifically stated during argument that she was not seeking such support. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-6122 Joyce Ross, et al. v. Federal Ins. Co., et al., App. Div. (16 pp.) Where plaintiff and her daughter were injured while on vacation when their rental car was hit by an uninsured vehicle, the trial judge correctly found that the UM coverage of plaintiff’s automobile policy was primary, but also correctly found that an umbrella policy was available, since UM language ambiguities must be resolved in favor of the insured. INSURANCE — VERBAL THRESHOLD 23-2-6123 Stephen G. Levinson v. Janina Roguz, et al., App. Div. (8 pp.) The trial judge incorrectly granted summary judgment to the defendants since plaintiff’s objective medical evidence, showing reversal of the normal cervical lordosis both after the accident and many months following, with continued spasm, was sufficient to meet the threshold, but the matter must be remanded for a hearing on the “serious impact” prong of the test, since the record was not developed on this issue. LABOR AND EMPLOYMENT — RETALIATORY TRANSFER 25-2-6124 H. Ian Wachstein v. Alfred A. Slocum, et al., App. Div. (7 pp.) Jury verdict awarding attorney no damages on his adjudicated case of retaliatory transfer to Atlantic County from Camden County is reversed, since the judge erred in admitting defendants’ evidence regarding non-reimbursement policies for expenses applicable to lawfully transferred employees, and this evidence, not applicable to the attorney, could have influenced the jury to believe that it would somehow be illegal or improper to award plaintiff damages for travel and overtime. PARENT/CHILD 28-2-6125 N.J. Div. of Youth and Family Services v. T.C.N., et al., App. Div. (10 pp.) Where birth mother had been involved with DYFS since she was 6 years old, and resisted all of DYFS’s attempts to help her prepare and plan for caring for her child, and where child had bonded with his foster mother for more than five years and separation would be harmful, the fact that birth mother was making a current attempt to improve her situation would not prepare her to help child deal with the trauma he would suffer after being removed from his foster mother, and the judge properly terminated birth mother’s rights to child. REAL ESTATE — CONTRACTS — LIQUIDATED DAMAGES 34-2-6126 Gregory Senkevitch, et al. v. Granville Builders, Inc., et al., App. Div. (13 pp.) In an action for the return of a deposit on a construction contract for defendants to build a custom house, the trial judge properly entered judgment in favor of builders since evidence showed that former purchasers waived the contract’s mortgage contingency provision, although the deposit may not be retained in full if the deposit provides more compensation than the actual damages caused by the default, and the matter is remanded for a hearing on this issue. TAXATION 35-2-6127 General Bldg. Products Corp. v. Director, Div. of Taxation, App. Div. (6 pp.) Tax Court judgment dismissing corporation’s complaint, seeking a refund of tax that was incurred as a result of a “deemed asset sale” of the stock in a wholly-owned New Jersey subsidiary of another corporation is affirmed, since New Jersey does not recognize a corporation’s federal election under IRC Sec.338(h)(10) which permits the buyer and the parent corporation jointly to make the election to avoid double taxation, and, instead, the state applies N.J.A.C. 18:7-11.15 to tax the New Jersey entity on the seller side of such transactions. WILLS, TRUSTS AND ESTATES 38-2-6128 In the Matter of the Estate of William O. Corbin Sr., deceased, App. Div. (6 pp.) Where decedent had entered into a 1961 stipulation declaring that he had no “present intention of making any change in the exercise of powers of appointment which he held under the wills of his parents” and where that stipulation was attached to a Florida divorce decree ordering that “each and every aspect of that agreement was approved and confirmed” and the parties were ordered to comply, but where decedent later changed his exercise of the appointment power and cut out the children of his first marriage from participation in certain trusts, the Chancery Division judge erred in dismissing application of those children for a portion of the trust funds without making a thorough exploration through discovery and a plenary hearing regarding the circumstances surrounding the Florida stipulation. CRIMINAL LAW AND PROCEDURE 14-2-6129 State v. Demetrios Damplias, App. Div. (11 pp.) An interlocutory order suppressing a blanket taken from the murder scene by the police during the execution of a search warrant for other evidence is reversed, since the taking satisfies all of the requirements of the “plain view” doctrine, including the fact that the discovery of the blanket was “inadvertent.” [Approved for publication July 12, 1995.] [Available online in N.J. Full-Text Decisions.] 14-1-6130 State v. Joseph Harris, Supreme Ct. (87 pp.) In affirming defendant’s convictions and death sentence, (1) state’s offer of a plea to a life sentence did not demonstrate that the death penalty was inappropriate and the state’s decision to proceed with the matter as a capital case when defendant refused the plea was proper; (2) although one juror’s skepticism about psychiatric evidence and another juror’s statement regarding convicted murderers “rotting” in jail were troublesome, the trial court did not err in refusing to dismiss those jurors, and (3) any error in the judge’s instructions was harmless. [Available online in N.J. Full-Text Decisions.] 14-1-6131 State v. Rigoberto Mejia, a/k/a Martin Gamez, Supreme Ct. (77 pp.) The trial judge committed reversible error in failing to instruct the jury that it need not be unanimous on whether the defendant intended to kill his victim or to cause him serious bodily injury, but that if the jury was not unanimous on defendant’s intent, then he could not be subject to the death penalty. [Available online in N.J. Full-Text Decisions.]

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