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Vol. 3 No. 141 Decisions Released July 28, 1995 STATE COURT CASES ATTORNEYS — ETHICS 04-1-6260 In the Matter of Michael D. Kasson, An Atty. at Law, Supreme Ct. (11 pp.) For failure to maintain a bona fide New Jersey office, an attorney who supposedly operated the New Jersey office of a Pennsylvania attorney is reprimanded, but, since ethical standards requiring that attorneys maintain a bona fide office in this state apply to both the attorney-employer as well as the attorney-employee, the Pennsylvania attorney must bear the administrative costs of the appeal. CONTRACTS — BAILMENTS 11-2-6261 Charlie Xie v. J.P. Anthony’s, App. Div. (4 pp.) Where plaintiff placed his cigarette vending machines in defendant’s premises, a bailment was created, and there was a presumption of negligence on the part of the defendant when one of the machines was missing; but since the judge did not address or consider the presumption in her decision for plaintiff, the matter must be reversed and remanded for a new trial. MUNICIPAL LAW — ENVIRONMENT 30-2-6262 Holgate Property Assoc., etc. v. Twp. of Howell, et al., App. Div. (14 pp.) Since neither Monmouth County nor the DEP has adopted an amendment to the Monmouth County solid waste management plan, or taken any other action in conformity with the procedures and criteria of the state Solid Waste Management Act that designates plaintiff’s property as a suitable sludge processing and storage site, the trial court erroneously concluded that municipality’s zoning ordinance–and the stop-work order that was issued to enforce it–were preempted by the DEP permit issued to allow such processing and storage. [Approved for publication July 28, 1995.] TORTS — FALSE IMPRISONMENT — ABUSE OF PROCESS 36-2-6263 Don Barton v. Dennis De Clemente, et al., App. Div. (3 pp.) The judge properly denied plaintiff’s motion for a new trial after dismissal of plaintiff’s false arrest case and a verdict against him on his abuse of process claim, since, although plaintiff was advised by a juror that the verdict was based exclusively on the finding that he had not been arrested as claimed, and plaintiff then produced an arrest report with his motion papers, it did not constitute newly discovered evidence because plaintiff could have obtained this report during discovery or trial; in addition, there was insufficient proof of abuse of process. FEDERAL COURT CASES ATTORNEY/CLIENT — PUBLIC DEFENDERS 04-7-6264 Barbara Kostrzewa v. Lorraine M. Augostini, U. S. Dist. Ct. (15 pp.) Where homeopathic practitioner was represented by a public defender–in a criminal case for practicing medicine without a license–practitioner’s subsequent Section 1983 case against the public defender, alleging that the public defender violated practitioner’s constitutional rights in her representation, is dismissed as frivolous, since a public defender does not act under color of state law when performing a lawyer’s proper and traditional functions as counsel to a criminal-proceedings defendant. WRONGFUL DEATH — ADMIRALTY — AVIATION 40-7-6265 Joan Palischak, Co-Executor, etc. v. Allied Signal Aerospace Co., et al.; Joan Palischak, Co-Executor, etc. v. U.S.A., U. S. Dist. Ct. (25 pp.) Where plaintiff’s decedent was killed in an ocean plane crash off Florida’s east coast, and plaintiff filed a suit against the Federal Aviation Administration pursuant to the Federal Tort Claims Act and a negligence suit against both the manufacturer of the plane — on product liability grounds — and the federal government for the actions of its air traffic controllers, and both cases were filed within the applicable statutes of limitations, (1) the government’s motion to dismiss the tort claims suit is denied, although the two cases are consolidated, (2) the defendants’ motion for partial summary judgment is granted in part because the Death on the High Seas Act is the exclusive remedy when a death occurs in a high-seas aviation accident, so New Jersey wrongful death remedies are preempted and plaintiff’s claims for non-pecuniary wrongful death damages must be stricken, and (3) plaintiff shall be allowed to supplement her Death on the High Seas Act claims and proceed with her survival action claims. Additional Opinion Approved for Publication: 20-2-6257 Nicholas Jutchenko v. Anthony Jutchenko (July 27, 1995).

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