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Vol. 3 No. 130 Decisions Released July 13, 1995 STATE COURT CASES AUTOMOBILES 05-2-6132 Salvatore Donatacci v. State, Dir. of the Div. of Motor Vehicles, App. Div. (4 pp.) Under the Interstate Drivers License Compact, defendant’s license suspension under N.J.S.A. 39:4-50 following his New York drunken driving conviction was mandatory, and since there was no disputed issue of fact, the New Jersey DMV was not required to hold an evidentiary hearing, and the 10-year suspension is affirmed. ENVIRONMENT — CLOSED BUILDING AIR QUALITY 17-2-6133 Suzanne Kuehm v. Hearnen Air Conditioning, et al., App. Div. (14 pp.) In office worker’s suit against owner of building and air conditioner maintenance company alleging negligent maintenance of air system in 1989 contributing to her asthma and allergies, summary judgment was proper against defendants because 1989 test results showed that air quality was acceptable under government standards, worker’s 1993 evidence did not refute the 1989 data, and, even if the air quality did not meet government standards, it would not necessarily indicate negligence by the building owner or system maintenance company. FAMILY LAW 20-2-6134 Jo Ann M. Kull v. Eric M. Kull, App. Div. (4 pp.) Order granting wife day-care expense arrearages and unreimbursed health-care costs for her child, to be paid by the husband, is affirmed, since, despite questions raised by husband about wife’s record-keeping practices, judge simply believed her testimony that she had, in fact, incurred the costs, which he found reasonable, and that she had submitted the medical bills to the husband for payment. 20-2-6135 Karen A. Mazurek, n/k/a Cosgrove v. Ronald H. Mazurek, App. Div. (8 pp.) Order requiring husband to reimburse wife for certain expenses primarily related to their three children’s college education is affirmed, and the order’s requirement that wife should consult husband for his approval before incurring such expenses related to significant matters, such as choice of schools, and support obligation was not invalidated because wife did not consult husband for every book or line item expense. INSURANCE 23-2-6136 Gerald Zaborowski, et al. v. Estate of John Zaborowski, et al., App. Div. (6 pp.) On plaintiff’s claim that insurer had acted in bad faith in handling certain claims arising from the deaths of his parents and that such bad faith estopped insurer from asserting that plaintiff’s claims were time-barred, summary judgment was properly entered against plaintiff, since the only reason the claims were not timely filed was plaintiff’s failure to exercise his rights to sue in a timely manner. INSURANCE — P.I.P. BENEFITS 23-3-6137 Michele Lumpkins v. Market Transition Facility of N.J., et al., Law Div. (8 pp.) Considering the broad and liberal interpretation given to PIP statutes, an automobile qualifies under N.J.S.A. 39:6A-4 as an “object” which may be “propelled by or from [another] automobile,” and, since it is undisputed that an insured automobile struck and thereby propelled the automobile insured by the MTF into plaintiff, both insurers would be obligated to make PIP payments to the plaintiff. [Approved for publication July 12, 1995.] [Available online in N.J. Full-Text Decisions.] LABOR AND EMPLOYMENT — RETALIATORY DISCHARGE — L.A.D. 25-1-6138 William Craig, et al. v. Suburban Cablevision Inc., et al., Supreme Ct. (16 pp.) Coworkers and co-employed relatives of a plaintiff, who filed a discrimination action against an employer, have standing to pursue claims of retaliatory discharge under the Law Against Discrimination when they allege having been discharged because of their relationship with the original plaintiff. [Available online in N.J. Full-Text Decisions.] LAND USE — SPECIAL REASONS VARIANCES 26-2-6139 Charles Labash, et al. v. Dover Twp. Bd. of Adjustment, et al., App. Div. (10 pp.) Law Division judge correctly reversed the municipal board’s granting of a special reasons variance for the construction of a McDonald’s restaurant in a residential zone since the landowner failed to satisfy the negative criteria and enhanced standard pronounced in Medici v. BPR Co., 107 N.J. 1 (1987), noting that the governing body had not adopted an ordinance re-zoning the site since 1986, and therefore, absent any other proof, the assumption must stand that the governing body intended to maintain the property as a residential zone. NEGLIGENCE — ASBESTOS 31-2-6140 John C. Higgins v. Owens-Corning Fiberglas Corp., et al., App. Div. (18 pp.) In personal injury case against certain asbestos manufacturers, molded verdict in plaintiff’s favor is reversed and remanded since (1) the trial judge deprived plaintiff of his right to obtain a full recovery by improperly permitting the jury to apportion a share of liability to a company that was not a party to the lawsuit, and (2) the judge also erred in limiting plaintiff’s expert testimony about the nature and extent of probable future progression of his asbestos disease. [Approved for publication July 13, 1995.] [Available online in N.J. Full-Text Decisions.] PRODUCT LIABILITY 32-2-6141 Richard David Hume, et al. v. Caterpillar Inc., et al., App. Div. (12 pp.) Jury verdict in favor of plaintiff, for injuries received while he was working alongside a Caterpillar profiling machine, is reversed as to liability because the trial judge incorrectly excluded substantial alteration evidence from the jury’s consideration. REAL ESTATE — MORTGAGES — GUARDIANS/INCOMPETENTS 34-3-6142 In the Matter of the Sale of Lands of Rose M. Castner, an adjudicated Incompetent, Law Div. (13 pp.) Although, under an analysis of the new probate law, read in conjunction with the old, the court holds that a guardian is not required to obtain court approval before mortgaging his ward’s lands, where now-deceased husband and guardian of incompetent mortgaged their residence to provide funds solely for his own business purposes, mortgage transaction is voidable by the incompetent’s current guardians, since guardian’s use of mortgage funds was solely for his own interest, a conflict was created that should have been addressed by guardian and bank’s counsel, and incompetent should have had independent legal representation. [Approved for publication July 12, 1995.] [Available online in N.J. Full-Text Decisions.] WORKERS’ COMPENSATION 39-2-6143 Regina McClammy v. Thurston T. Frink, et al., App. Div. (4 pp.) The trial judge correctly ruled that worker’s claim against the Unsatisfied Claim and Judgment Fund for disability income-continuation PIP benefits is barred by N.J.S.A. 39:6-86.2a because such benefits were “collectible” by worker from her employer’s temporary disability benefits health plan. CRIMINAL LAW AND PROCEDURE 14-2-6144 State v. Victor Otero, App. Div. (10 pp.) In a case where the critical trial issue was defendant’s mental capacity, reversible error was committed when the prosecution did not disclose that one of its medical expert witnesses had pled guilty to medical fraud in California and was on probation at the time of trial, since such evidence affects the witness’s credibility and may have influenced the jury’s view of his testimony. FEDERAL COURT CASES ARBITRATION 03-7-6145 JNESO – District Council 1, IUOE, AFL-CIO v. United Hosps. Medical Center, U.S. Dist. Ct. (11 pp.) Where a post-award dispute arose as to whether employer had complied with the reinstatement portion of an arbitration award, employee’s motion to confirm the award is denied, and employer’s motion to dismiss the complaint is granted, since the post-award issue is new and distinct, neither covered nor contemplated by the original award, and must be settled by arbitration. COMMERCE — CHANGE OF VENUE 08-7-6146 MacDermid, Inc. v. Polakovic, U.S. Dist. Ct. (6 pp.) Where discovery in two cases involving misappropriation of trade secrets and unfair competition (one in New Jersey and one in Ohio) revealed information that indicates that the issues in each case are more related than previously suspected, plaintiff has shown the required change of circumstances necessary to justify its request for a venue change, and, further, the likelihood that the matters can be consolidated in Ohio furthers the interests of justice, despite the inconvenience to certain parties and the limits of the Ohio court’s subpoena power. IMMIGRATION 51-7-6147 Mircea Marincas v. Warren Lewis, et al., U.S. Dist. Ct. (12 pp.) Although a hearing before an immigration judge and the accompanying panoply of procedures arguably should be applied to those seeking political asylum, since plaintiff came to this country as a stowaway, he is not due those procedural protections, and his claims that the process due and provided to him was unfair are meritless and his deportation is affirmed.

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