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Vol. 3, No. 123 Decisions Released June 30, 1995 STATE COURT CASES ATTORNEYS — DISCIPLINE 04-1-6034 In the Matter of Stephen Pepe, Supreme Ct. (17 pp.) Where former judge not only used marijuana, but supplied it to others, and used the prestige of his office to advance private interests, he is guilty of ethical violations not only as a judge, but as an attorney as well, and is suspended from the practice of law for three months, despite the Disciplinary Review Board’s public-reprimand recommendation. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE — ENTIRE CONTROVERSY 07-2-6035 Scott Vance Pantisano, Executor v. Matteo Petrillo, et al., App. Div. (7 pp.) Where general contractor entered into a liquor store construction contract with a partnership, and where two of the partners later defrauded contractor into thinking that there was no more construction financing available to pay him and fraudulently induced him into accepting a promissory note for the balance due on the project, and where they later defaulted on the note and plaintiff recovered a judgment which could not be executed because the two partners filed for bankruptcy, general contractor s failure to join a third partner in the suit on the note did not preclude a later action against that partner, since at the time of the suit, contractor was unaware of the fraud and thought that the note was in full satisfaction of the construction contract, so contractor did not know that he had a claim against the third partner at the time of the first suit. ENVIRONMENT 17-2-6036 Astro Pak Corp. v. Fireman s Fund Ins. Co., et al., App. Div. (14 pp.) Declaratory judgment requiring two insurers to indemnify licensed hauler of liquid hazardous waste against claims of owner/operator of the Kin-buc disposal facility was proper since (1) hauler delivered waste throughout the period of one policy, when the EPA knew of pollutants’ escape but hauler didn’t, and since the hauler did not know of the pollution, the pollution exclusion, applicable only for intentional discharge, does not apply, and (2) there were also “occurrences” within the period of the other policy, since, even though the hauler did not make additional deliveries to the landfill during the policy period, the pollution continued during the policy period because previously-dumped waste leached into the landfill. 17-2-6037 George H. Sands, et al. v. Cigna Property and Casualty Ins. Co., et al., Ap. Div. (10 pp.) In an action by shopping-center owners against insurance companies seeking order that insurers defend them in a federal action for CERCLA remediation costs (in which the owners were joined as a result of alleged contamination by their tenants), judge erred in denying owners’ motion for partial summary judgment and granting partial summary judgment in favor of insurers, since he erroneously placed the burden on the owners to prove coverage applied when the insurers did not present any evidence why they should not defend the claims; since the insurers showed no proof that the owners knew of the contamination; and the judge should have entered a temporary order, pending the completion of discovery, for the insurers to provide a defense under a reservation of rights. 17-2-6038 In the Matter of Allegations of Violations of Law and the Administrative Code by Industrial and Commercial Refuse Removal Service Inc., et al., App. Div. (41 pp.) On the basis of the voluminous evidence presented regarding waste hauler s violation of solid waste statutes and regulations, the final order of the DEP imposing a $1.1 million penalty on company and its principals, ordering refunds to certain customers, revoking corporation s certificate of public convenience and necessity, and barring principals from participation in solid waste and regulated recycling industries in New Jersey was proper. INSURANCE — VERBAL THRESHOLD 23-2-6039 Johnnie Simmons v. Antonio Pereira, et al., App. Div. (7 pp.) Where 63-year-old plaintiff suffered back and knee injuries in an accident, and two years later fell and broke a leg, which his doctor attributed to knee problems residual to the accident, the trial judge should not have granted the defense’s summary judgment motion, notwithstanding the causality issues regarding the broken leg, since the record raised sufficient issues of fact to survive the motion. NEGLIGENCE 31-2-6040 CDS Computing Inc., et al. v. Curtiss-Wright Corp., et al., App. Div. (18 pp.) In a case seeking damages for personal injuries and economic loss as a result of chemical spill, even if the judge mistakenly exercised his discretion in excluding certain evidence, there was no prejudice to the plaintiffs in light of the jury’s finding of defendant’s negligence, and the plaintiffs’ claim that the excluded evidence prevented their recovery of more appropriate compensatory damages and a punitive damages award is without merit. PARENT/CHILD 28-2-6041 In the Matter of K.M., App. Div. (9 pp.) Because an order transferring custody of child to her maternal grandmother was entered over father’s vehement objection without a hearing and with only the barest notice to him, and because the record is bereft of any statement of reasons supporting the transfer, the matter is remanded for further proceedings. PRODUCT LIABILITY — ENTIRE CONTROVERSY 32-2-6042 William Frazier, et al. v. Weyerhaeuser Co., et al., App. Div. (12 pp.) Trial court should not have dismissed homeowners’ suit against installers of certain defective windows and doors on the ground that, under the entire controversy doctrine, these claims should have been brought in a federal class action suit against manufacturers of the same doors, since the two cases could not be joined because the federal court did not have federal question or diversity jurisdiction over the case against the installers. WILLS, TRUSTS AND DECEDENT’S ESTATES 38-2-6043 In the Matter of the Declaration of Death of Dominick Santos Jr., App. Div. (4 pp.) Where a man left his wife and disappeared, leaving her deeply in debt, and she obtained a divorce from him by publication in order to obtain sole title to their assets to pay some of the debts, she did not lose standing by virtue of the divorce to later have him legally declared dead, nor did she forfeit her right to receive the proceeds of the two life insurance policies on his life, for which she was named beneficiary, and claims of man’s heirs-at-law (children of first marriage) were properly dismissed. [Approved for publication June 30, 1995.] [Available online in N.J. Full-Text Decisions.] WRONGFUL DEATH 40-2-6044 Rodney R. Bialko, administrator, et al. v. Borough of Dumont, et al., App. Div. (9 pp.) In case where a child was killed by a train when she walked around a fence bordering part of a municipal park and played on railroad tracks, the fact that the park was not completely fenced in did not constitute a “dangerous condition” for which the municipality would be liable, and it was the decedent’s activities not the physical condition of the municipality’s property, that caused the accident. CRIMINAL LAW AND PROCEDURE 14-2-6045 State v. Cori Tetto, App. Div. (2 pp.) Where defendant served her appeal of conviction for failing to pay employees’ wages on the county prosecutor, rather than the state Attorney General, the error was not serious, and the judge should have relaxed the rules and not dismissed her appeal.

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