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Vol. 3 No. 135 Decisions Released July 20, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE 01-2-6198 In the Matter of David Keith Nelson, App. Div. (10 pp.) Since questions of compliance with Bureau of Securities’ discovery orders by applicant for registered-agent status were genuine issues of material fact, it was improper for administrative law judge to grant Bureau’s motion for summary decision denying registration without an evidentiary hearing. 1-2-6199 In the Matter of the Application of Robert Lueder License No. 59985 to Practice Nursing in the State of New Jersey, App. Div. (7 pp.) Applicant who served 12-year prison term is entitled to Board of Nursing’s review of two psychiatric reports it had received in support of his application that his moral character was rehabilitated, and the case is remanded to the Board to determine if those reports would affect its finding to reject his application. ALCOHOLIC BEVERAGES–DRAM SHOP 47-2-6200 Louise Gilbert v. Compton’s Log Cabin, Inc., App. Div. (5 pp.) Defense counsel’s summation remark that jurors should “send a message to…many other people [that] if you drink and you know you’re going to drive, it is your responsibility” is not a “clarion call” and any error was harmless. ATTORNEY/CLIENT — MALPRACTICE 4-2-6201 Sheila Dardik v. Gene Schiffman, et al., App. Div. (6 pp.) There is nothing inconsistent with plaintiff having alleged in her matrimonial action that her former husband’s conduct was the cause of her dire financial straits and contending in this malpractice action that her attorneys and accountants negligently represented her in the matrimonial action and failed to protect her against her former husband’s defalcations, and trial judge wrongly granted summary judgment to defendants. CIVIL PROCEDURE 9-2-6202 Marie Henderson v. Griffin Construction Co., et al., App. Div. (15 pp.) (1) Trial judge properly prohibited plaintiff’s expert from testifying where written report was served on the eve of the adjourned trial date in violation of R. 4:17-7, because there was no explanation for the delay and the testimony would have been cumulative; (2) plaintiff’s claim against John Doe apartment maintenance company was properly dismissed where plaintiff failed to make adequate investigation of its existence and any claim against the maintenance company would be as agent and was therefore barred by the verdict in favor of the building owner (principal). CONDEMNATION 44-2-6203 State by Comm’r of Transportation v. John Van Nortwick et al. (20 pp.) In determining severance damages for a partial taking of land in which access is diminished, court should show latitude in admitting evidence of fair market value, including all relevant facts and circumstances, past and present, that may have a bearing on the available future use of the property; however, condemnee can recover only the on-site damages occasioned by limitation of access, not damages incidental to the taking and not speculative damages. GOVERNMENT 21-2-6204 Statewide Hi-Way Safety Inc. v. New Jersey Department of Transportation et al., App. Div. (13 pp.) Although appeal from award of bid is moot since highway project is substantially completed, in future cases the Department’s failure to total the bid awarded or to read it aloud, as required by N.J.S.A. 27:7-29, will not be excused on the theory that expeditious posting of the figures on an electronic bulletin board forecloses the ability to amend them and thus that there can be no fraud or impropriety. [Available online in N.J. Full-Text Documents.] INSURANCE — VERBAL THRESHOLD 23-2-6205 Jane E. Caines, et al. v. Joseph R. Henry, App. Div. (6 pp.) Physician’s certifications that plaintiff suffered carpel tunnel syndrome as a result of the accident satisfied Oswin’s objective prong, and plaintiff’s certification that she was unable to perform basic household duties, including making clothing for herself, coupled with doctors’ corroboration that this “serious impact” was the result of carpel tunnel syndrome, satisfies “serious impact” prong of Oswin. INSURANCE 23-2-6206 In the Matter of First Trenton Indemnity Company Termination of City Line Insurance, Inc., App. Div. (6 pp.) Commissioner need not resolve all disputes between insurers and their assigned agents under the Producer Assignment Program, and the parties are free to seek redress in court for breach of contract or other wrongful conduct. LABOR AND EMPLOYMENT 25-2-6207 Christine Buccilli v. Timby, Brown & Timby, App. Div. (13 pp.) Damage claim of a New Jersey resident for her allegedly wrongful dismissal from out-of-state employment is governed by the law of Pennsylvania, the state in which she was employed, and Pennsylvania law does not prevent New Jersey from applying that state’s law in appropriate cases. [Available online in N.J. Full-Text Documents.] 25-2-6208 Lance Hamilton v. William Parcells, et al., App. Div. (8 pp.) Trial judge properly allowed cross-examination of plaintiff and his father with respect to their views on institutional racism in American society where plaintiff claimed he was denied an assistant coach position with the New York Giants due to his race and in violation of a commitment made to him by the Giants’ head coach. However, the case is remanded for reconsideration of the attorneys’ fees award in favor of defendants in view of the narrow confines of the frivolous-litigation statute and the policy in federal civil rights cases. 25-2-6209 Paul Jurkiewicz v. Borough of Sayreville Dept. of Road and Sanitation, App. Div. (2 pp.) Merit System’s decision, sustaining employee’s dismissal from employment by borough is affirmed, since there was sufficient credible evidence to prove that employee ignored repeated requests to appear for work or present evidence as to his continued disability. 25-2-6210 Johanna L. Wright v. Robert C. Curcio, et al., App. Div. (6 pp.) Plaintiff made a prima facie showing through her own testimony that she was not reappointed as varsity cheerleading coach after she refused to add Caucasian students to the cheerleading squad in order to remedy what defendants characterized as its unacceptable racial composition, and defendants’ motion to dismiss at the conclusion of plaintiff’s case was properly denied. TORTS 36-2-6211 Kathleen Clark et al. v. Robert Rademacher, et al., App. Div. (4 pp.) Plaintiffs’ claims for emotional stress were properly dismissed on summary judgment where the police had lost a needle that they were holding for testing, since plaintiff failed to establish an issue of fact as to the existence of a causal relationship between the needle’s loss and her being required to undergo testing, and further failed to show any “permanent loss of a bodily function” under N.J.S.A. 59:9-2d. CRIMINAL LAW AND PROCEDURE 14-1-6212 State v. Patrick Ball, Sup.Ct. (58 pp.) Trial court adequately instructed the jury as to the proper understanding and application of the “pattern of racketeering activity” and conspiracy provisions of the state Racketeer Influenced Corrupt Organizations Act, namely that (1) the primary criterion of a “pattern” is relatedness, which calls for a broad standard involving the totality of all relevant circumstances and (2) general conspiracy law applies to prosecutions for conspiracy to violate RICO. [Available online in N.J. Full-Text Documents.] 14-2-6213 State v. Jessie Sharp, App. Div. (12 pp., incl. Law. Div. opinion) Defendant was properly convicted on two counts of attempted murder since, although he possessed only one gun and pulled the trigger only once, he was shooting at two people standing shoulder-to-shoulder only five feet from him, which could justify a finding that he acted with a purpose to kill both and that his action constituted a substantial step toward that result. [Approved for publication June 13, 1995.] [Available online in N.J. Full-Text Documents.] FEDERAL COURT CASES LABOR AND EMPLOYMENT — DISCRIMINATION 25-7-6214 Farid S. Khair v. Campbell Soup Co., App. Div. (12 pp.) On employee’s motion for reconsideration of court’s dismissals of his (1) Patterson-based discriminatory transfer/failure to promote claim, (2) national origin and age discrimination claims for failure to promote in 1992, and (3) retaliation claims (see DDS No. 25-7-5974), because plaintiff has presented facts not known to the court before it rendered its order, plaintiff’s 1992 failure to promote and retaliatory failure to promote claims are reinstated, but the motion is denied as to the other claims. [Available online in N.J. Full-Text Documents.]

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