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Vol. 3 No. 121 DECISIONS RELEASED JUNE 28, 1995 STATE COURT CASES ATTORNEY/CLIENT –FEE COLLECTION 04-2-6011 Philip K. Yachmetz v. Maria Yachmetz, a/k/a Maria Szczupak, App. Div. (5 pp.) Although attorney properly complied with N.J.S.A. 2A:13-5 procedures for enforcing a counsel-fee lien, his motion to intervene in his ex-client’s matrimonial proceeding and to have alimony payments due her escrowed while her appeal of fee arbitration award was pending is now moot, since she already has received the alimony payments, and, since the appeal of the fee arbitration award has been denied, and the attorney has reduced the award to a judgment, he can collect his fee through enforcement of the judgment. ATTORNEYS — CONTEMPT 04-2-6012 In the Matter of Matthew R. Kiffin, Esq., App. Div. (6 pp.) Where contumacious acts were repeated by the attorney, notwithstanding warnings and his apology, overzealousness or relative inexperience are not sufficient explanation for such conduct, and the judge was correct in holding the attorney in contempt as a matter of law. HEALTH — BENEFITS ELIGIBILITY 22-2-6013 J.S. v. Div. of Medical Assistance and Health Svcs., et al., App. Div. (3 pp.) Since regulations concerning benefits eligibility under the New Jersey Care program state in plain language that gross Social Security Assistance is to be considered as the eligibility determinant, applicant’s contention that, because he has to return part of his SSA each month due to an overpayment error, his gross income should be reduced by the amount he is required to refund in calculating his eligibility is erroneous, and his benefits claim was properly denied. LAND USE 26-2-6014 Nicholas Poulathas, et al. v. Atlantic City Zoning Bd. of Adjustment, App. Div. (6 pp.) While a complete change in the nature of the use of a protected nonconforming property constitutes an abandonment, where a property owner, as here, retains the protected nonconforming use but expands or extends the use illegally (increasing three apartments to five), there is no evidence of intent to abandon because the protected, nonconformed use is retained, and trial court’s reversal of municipality’s denial of landowners’ application for a certificate of nonconformance was proper. [Approved for publication June 28, 1995.] [Available online in N.J. Full-Text Decisions.] PARENT/CHILD 28-2-6015 N.J. Div. of Youth & Family Svcs. v. E.B., In the Matter of J.B. and C.B., App. Div. (5 pp.) Where it was undisputed that mother was incapable of caring for her two children without help, and the focus then became whether the grandmother, with whom mother lived, was a suitable parenting alternative, the judge’s finding that the best interest of the children required severance of parental rights is supported by substantial credible evidence in the record, since from the birth of the oldest child, when the termination of mother’s parental rights was a realistic possibility, the grandmother failed to show sufficient interest or motivation in providing suitable parenting for the grandchildren. CRIMINAL LAW AND PROCEDURE 14-2-6016 State v. Estrella Piemontese, App. Div. (3 pp.) Property owner’s conviction for violation of a municipal ordinance, which requires that landowners maintain their lawns, hedges and bushes, is reversed, since the ordinance is constitutionally infirm because of vagueness and overbreadth, and does not give sufficiently definite notice of the prohibited conduct to those who wish to avoid its penalties. [Approved for publication June 28, 1995.] [Available online in N.J. Full-Text Decisions.] 14-2-6017 State v. Jose L. Velez, App. Div. (8 pp.) Where trial judge observed a juror with his eyes closed, and defense counsel indicated concern with the juror’s attentiveness, the trial judge erred by not making an inquiry to determine if the juror had, in fact, been sleeping, or if the juror’s ability to render a fair decision had been impaired, and the matter must be remanded for a hearing on this issue if the juror can be located and, if he cannot be found, then the conviction must be reversed and a new trial ordered. 14-2-6018 State v. Tyrone Thompson, App. Div. (6 pp.) The trial judge mistakenly exercised her discretion in dismissing the indictment against defendant with prejudice, focusing exclusively on the delay in its disposition (six years) and not giving due consideration to the fact that defendant was a fugitive. 14-2-6019 State v. Sherry L. Spies, App. Div. (3 pp.) Where driver, operating her vehicle without a license, gave a fraudulent name to the police officer when stopped for speeding, and, because of the false identity, the driver was not correctly charged until 112 days later, her claim that the statute of limitations bars the charges is without merit, since the misrepresentation suspends the running of the statute. FEDERAL COURT CASES BANKRUPTCY 42-8-6020 Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies Inc., et al., Third Cir. (27 pp.) Denial of law firm’s counsel fees application is affirmed where the bankruptcy court found that plaintiff law firm, in the context of its client s Chapter 11 proceedings, had wrongfully represented the interests of the debtor’s president/principal shareholder and sought to further his interests over those of the debtor, and had made repeated and knowing misrepresentations to the court, motivated by subjective bad faith, since these findings were not clearly erroneous and were affirmed by the district court, which gave its own acceptable justifications for the decision. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-6021 Captain Tammy S. Blakey v. Continental Airlines Inc., U.S. Dist. Ct. (16 pp.) Where a female pilot alleged that she was subjected to pornographic material in and around the cockpit, some of which contained handwritten comments directed toward her, and also alleged different treatment than that received by her male counterparts with respect to access to information, discipline and leaves of absence, (1) airline’s motion to dismiss all of pilot’s state law claims, other than those brought under the Conscientious Employee Protection Act, is denied, since, while the CEPA precludes other causes of action arising out of the same allegations supporting the CEPA claim, it does not preclude claims that arise out of distinct allegations, and since pilot’s claims under the N.J. Law Against Discrimination arise out of the pornography and sexual harrassment allegations and her CEPA claims are based on the airline’s different treatment of her, she can simultaneously maintain both claims, and (2) pilot’s motion seeking reversal of magistrate judge’s order denying her access to information as to other complaints received by the airline from its employees regarding sexual harassment is granted, since the information is clearly relevant to a determination of the overall environment of being a female captain at the airline and, because of the relatively small number of female pilots, the request will not be burdensome on the defense.

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