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Vol. 4 No. 89 – MAY 9, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-8840 Steven C. Faltermayer v. Andrew K. Ruotolo Jr., et al., App. Div. (2 pp.) Trial judge did not abuse his discretion in denying request for adjournment of malpractice trial requested on the eve of long-scheduled trial date. ATTORNEYS FEES — FRIVOLOUS LITIGATION 04-2-8841 Leon T. Hill, et al. v. Twp. of Lower Alloways Creek, App. Div. (10 pp.) Trial judge’s finding that township did not act in bad faith in defending against plaintiffs’ action — which sought to have township connect plaintiffs’ premises to public sewer system at no additional cost pursuant to a written agreement — is supported by the record, and denial of plaintiffs’ counsel fee application under the frivolous litigation statute is affirmed. DEBTOR/CREDITOR 15-2-8842 Cecil R. Naraine v. Barry Smith, App. Div. (6 pp.) Where trial judge improperly expressed his frustration with two pro se litigants, ordered defendant’s prior lawyer to appear and made his decision to dismiss suit based on the influence of the lawyer’s unsworn, hearsay testimony, the matter must be remanded for a new trial. EDUCATION — RETIREMENT BENEFITS 16-2-8843 Charlotte Wagner, etc. v. Bd. of Trustees, Teachers’ Pension and Annuity Fund, App. Div. (7 pp.) Because decedent died within less than 30 days of the date of Board approval of her retirement, and also within 30 days of her retirement date, and because the case does not fall within either of the two statutory exceptions, decedent was properly considered an active member on the date of her death by virtue of N.J.S.A. 18A:66-47. [Approved for publication May 9, 1996.] FAMILY LAW 20-2-8844 Arlene Griebell v. Ronald Griebell, App. Div. (5 pp.) Although trial judge may have been frustrated by defendant’s lack of response to plaintiff’s initial service of motion, the record reflects absolutely no substantive reasons for granting the plaintiff’s motion, and denial of defendant’s motion for reconsideration is reversed. INSURANCE — VERBAL THRESHOLD 23-2-8845 Donald Nelson v. Suzanna M. DuPuis, et al., App. Div. (2 pp.) Doctor’s opinion — that the accident giving rise to this case was the cause of plaintiff’s injuries — was inadequate to show injury and causation after doctor stated that he was unaware of plaintiff’s prior or subsequent injuries in forming that opinion. NEGLIGENCE 31-2-8846 Carmen Feliciano v. St. Mary’s Roman Catholic Church, App. Div. (4 pp.) Where plaintiff fell on an exposed pipe in sidewalk abutting church property, and sued church for her injuries, judge correctly granted church’s summary judgment motion, finding that the pipe was exposed not because of any act of the church, but due to the sidewalk’s natural deterioration, and the church had no duty to maintain the sidewalk in a safe condition. NEGLIGENCE — ICY SIDEWALKS 31-2-8847 Barbara Walcheski, et al. v. Stanley Feit, et al., App. Div. (3 pp.) Summary judgment in favor of defendants was correct based on the current state of the law adhering to the absence of a duty on the part of residential property owners to remove or reduce the hazard of ice from the abutting sidewalk either under common law or by municipal ordinance. PRODUCT LIABILITY 32-1-8848 Gerardo Zaza, et al. v. Marquess and Nell Inc., et al., Supreme Ct. (52 pp. — includes partial concurring and dissenting opinion) Sheet metal manufacturer which manufactured a tank that was a component part of processing system built in accordance with owner’s specifications and assembled by the owner’s subcontractor cannot be held strictly liable for providing a defective product to an employee of the owner where the component part was not itself defective and so long as the specifications were not obviously dangerous. TAXATION 35-2-8849 Stanwick E.A. Investors Inc., et al. v. Director, Div. of Taxation, et al., App. Div. (3 pp.) Although real estate conveyances were rendered void ab initio by order of a federal district court, the sellers were not entitled to refund of realty transfer taxes paid to county and state pursuant to N.J.S.A. 46:15-8. WORKERS’ COMPENSATION 39-2-8850 Blanche Smith v. Edison Products, et al., App. Div. (3 pp.) Judge’s award of $39,000 fee to petitioner’s attorney — to be paid by respondent — was proper in light of the difficulty and length of completely successful and unusually protracted representation. CRIMINAL LAW AND PROCEDURE — JUVENILES 14-2-8851 State, in the Interest of M.R., App. Div. (6 pp.) Although juvenile’s adjudication is not reversed, matter is remanded for a hearing on the admissibility of a statement he made to officer in a police car on the way to the station house. FEDERAL COURT CASES DEBTOR/CREDITOR — TRUTH-IN-LENDING 15-7-8852 Zeffrey Rodrigues v. Consortium Financial, U.S. Dist. Ct. (9 pp.) Plaintiff’s federal action — alleging that defendant committed various truth-in- lending violations — is barred by the entire controversy doctrine and claim preclusion as a result of plaintiff’s receipt of a “no cause” decision in a similar case in state court, and also by the expiration of the statute of limitations. ENVIRONMENT — IMMUNITIES — WAIVER 17-7-8853 State, DEP v. Gloucester Envtl. Mgmt. Servs. Inc., et al. v. Ancora Psychiatric Hosp., et al., U.S. Dist. Ct. (33 pp.) Where New Jersey has acted in its sovereign capacity to invoke the federal court jurisdiction to assert state law claims against a waste hauler and many of its customers, it has waived its Eleventh Amendment immunity with respect to claims brought by others, as third-party plaintiffs, seeking contribution for the same liability against state agencies that also allegedly were customers contributing to the same waste stream through the same waste hauler. [For publication.] INTELLECTUAL PROPERTY — PROTECTIVE ORDERS 53-7-8854 Am. Home Products Corp. v. The Upjohn Co., U.S. Dist. Ct. (14 pp.) Where non-party to this patent infringement suit had provided confidential documents to plaintiff in other infringement litigation, those documents are governed by a protective order entered into by the plaintiff and the non-party in that other litigation, and, by the express terms of the protective order, this Court may not order production of those documents in the instant litigation, and the magistrate judge erred in ordering such production. LABOR AND EMPLOYMENT — APPOINTMENT OF COUNSEL 25-7-8855 Justin H. Jia v. The Merit Corp., U.S. Dist. Ct. (6 pp.) Since plaintiff has failed to present facts sufficient to support a prima facie case of employment discrimination, his case lacks the merit necessary to warrant the appointment of counsel; in addition, plaintiff is competent and literate and not incapable of presenting his case before the court. LABOR AND EMPLOYMENT — REMOVAL AND REMAND 25-7-8856 Oliver Pierce Jr. v. Int’l Bhd. of Teamsters, Local 863, et al., U.S. Dist. Ct. (11 pp.) Although federal preemption of plaintiff’s state suit against union — alleging emotional distress as a result of union’s determinations regarding plaintiff’s seniority status — serves as a basis for removal of the action, under principles of res judicata, such claims must be dismissed since two prior federal suits involving the same issues were previously dismissed; therefore, plaintiff’s motion to remand the matter to state court is granted. LABOR AND EMPLOYMENT — EARLY SOCIAL SECURITY BENEFITS 25-8-8857 Herman Edelman v. Comm’r of Social Security, Third Cir. (11 pp.) In analyzing the 1981 amendments to the Omnibus Budget Reconciliation Act affecting the Social Security Act, 42 U.S.C. 301, et seq., the district court correctly held that plaintiff was not entitled to early benefits within the month in which he turned 62, but his entitlement began in the following month, after he had met the eligibility requirements for a full month. LANDLORD/TENANT — CONDEMNATION 27-7-8858 Host Marriott Corp. v. Fast Food Operators Inc., U.S. Dist. Ct. (30 pp.) Tenant’s breach of sublease is not excused because of frustration of purpose or because it became impracticable to operate its fast-food restaurant in the demised premises — when state condemned a portion of the ingress and parking area for road widening — since tenant knew of the proposed condemnation at the time it entered into the sublease, and it was tenant’s responsibility to evaluate the impact of the taking prior to entering into the sublease. LANDLORD/TENANT — RECONSIDERATION 27-7-8859 The Stop & Shop Cos. Inc. v. Louis Cyktor Jr., et al., U.S. Dist. Ct. (6 pp.) In previously holding that sublease is an assignment as a matter of law, and that plaintiff/assignor, therefore, had no standing to object to assignee’s proposed expansion, the court overlooked plaintiff’s amended complaint, which asserted claims for reformation or rescission of the sublease agreement, and, therefore, plaintiff’s motion for reconsideration is granted. (For prior opinion, see DDS No. 27-7-7386 in the Dec. 19, 1995 Alert.) PENSIONS — E.R.I.S.A. 56-7-8860 Robert B. Reich, etc. v. Charles V. Giordano, et al.; Joseph A. D’Orazio, et al. v. Oransky, Scaraggi, et al., U.S. Dist. Ct. (13 pp.) The motion for leave to file a fourth-party complaint against union defendants, brought by law firm which represented pension fund at the time of the making of a disputed loan, is denied, since the proposed claims — that the union failed to supervise and remove the fund trustees — must refer back to the fund itself, and are therefore preempted by ERISA. A Daily Reporter of N.J. Court Decisions

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