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Vol. 4 No. 91 – MAY 13, 1996 STATE COURT CASES CONTRACTS 11-2-8873 James A. Jordon v. Tony’s Auto Body and Towing Serv., App. Div. (3 pp.) Where the parties had agreed that defendant would repair plaintiff’s car “when he got to it” and that, if plaintiff did not want to wait, he was free to take the car back at any time, when plaintiff left the car with defendant for more than two years, judge properly dismissed plaintiff’s complaint for damages to the car as a result of its being left outside and exposed to the elements. LABOR AND EMPLOYMENT 25-2-8874 Thomas DeFosse v. New Brunswick Scientific Co. Inc., App. Div. (4 pp.) Plaintiff’s relocation from his former home was not, in itself, adequate consideration to support the employer’s alleged oral promise of continuing employment absent “just cause” for termination. LABOR AND EMPLOYMENT — CONSCIENTIOUS EMPLOYEES 25-1-8875 Robert N. Barratt v. Cushman & Wakefield of N.J., Inc., Supreme Ct. (21 pp.) The Conscientious Employee Protection Act protects an employee who reports an illegal act of a partner in a partnership that has a business relationship with the employee’s employer, and employee-plaintiff has submitted sufficient evidence of the business relationship to withstand a motion for summary judgment. WILLS, ESTATES AND TRUSTS — INCOMPETENTS 38-2-8876 In the Matter of Helen Darnsteadt, an Incompetent, App. Div. (6 pp.) Evidence supports judge’s finding that the inter vivos deed transfer of house by now-incompetent was valid, and that she understood the nature and effect of the transfer at the time; the confidential relationship between the now-incompetent and her son/grantee did not evidence duress or coercion; and that she had the advice of independent counsel in the transaction. WORKERS’ COMPENSATION 39-2-8877 Vella M. Ashmon v. Bell Atlantic Mobile Sys., App. Div. (3 pp.) Where one witness supported petitioner’s version of accident and four testified differently for respondent, and where petitioner only lost one half-day of work about 11 weeks after the alleged accident, judge properly dismissed her petition for failure to prove that she was injured in an accident arising out of and in the course of her employment. 39-2-8878 Charles Green v. Babcock & Wilcox Constr. Co., et al., App. Div. (6 pp.) Judge’s finding that petitioner’s last employer was liable for petitioner’s compensable injury, under Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308 (1964), did not constitute res judicata or an adjudication on the merits regarding the liability of the petitioner’s other employers; judge properly ordered a new trial as to the liability of those other employers when the last employer won appeal dismissing petitioner’s claims against it. WORKERS’ COMPENSATION — NOTICE OF CLAIM 39-2-8879 Arthur Brock v. Public Serv. Elec. & Gas Co., App. Div. (13 pp. — includes dissent) The trial judge erred in dismissing petitioner’s claim as untimely and holding that N.J.S.A. 34:15-33 — which provides that notice of claim must be given to employer within a certain time frame — is jurisdictional, since the statute is intended to avoid prejudice to the employer, and, where an employer is not prejudiced by late notice, there is simply no reason to bar consideration of an injured employee’s claim. [Approved for publication May 13, 1996.] CRIMINAL LAW AND PROCEDURE — JUVENILES — WAIVER 14-2-8880 State v. Aquil Hakim Onque, App. Div. (12 pp.) Although the Family Part judge determined that juvenile was capable of being rehabilitated by age 19, he did not abuse his discretion in waiving jurisdiction over the juvenile and referring the matter to the Law Division, Criminal Part, since the juvenile had not carried his burden of proving that the probability of rehabilitation substantially outweighed the reasons for the waiver. [Approved for publication May 13, 1996.] FEDERAL COURT CASES ADMIRALTY — JURISDICTION — ARBITRATION 54-7-8881 Nissho Iwai Corp., et al. v. Mizushima Marinera S.A., et al., U.S. Dist. Ct. (13 pp.) Since the court clearly has admiralty jurisdiction over this case involving breach of a maritime charter, defendants’ Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is denied, however, pursuant to the charter, the plaintiffs’ claims against the defendants should be resolved by arbitration in New York City. CIVIL RIGHTS — SETTING ASIDE DEFAULT 46-7-8882 Mario A. Carvajal v. Transport Workers Union Local 1400, U.S. Dist. Ct. (8 pp.) In a racial discrimination case — where plaintiff alleges that union’s representation violated Title VII of the Civil Rights Act — default judgment entered against union is set aside, since plaintiff would not be prejudiced, defendant’s affirmative defenses are facially meritorious, and the default was not willful nor in bad faith. IMMIGRATION 51-7-8883 Evergreen Am. Corp. v. Janet Reno, etc., et al., U.S. Dist. Ct. (5 pp.) The court dismisses the remaining counts of plaintiff’s complaint — challenging the Immigration User Fee Statute and certain INS regulations — since it is bound by the Third Circuit’s ruling in Dia Nav. Co. v. Pomeroy, 34 F.3d 1255 (3d Cir. 1994), which stated that the Immigration User Fee Statute did not relieve carriers of responsibility for costs of the detention of stowaways who apply for political asylum and that the INS policy imposing such costs on commercial carriers does not violate INS regulations. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-8884 Alvin Silverman v. Noritsu Am. Corp., U.S. Dist. Ct. (23 pp.) Where plaintiff established a prima facie age discrimination case that employer rebutted by giving nondiscriminatory reasons for plaintiff’s termination, although plaintiff’s evidence that the employer’s reasons were pretextual is circumstantial and skimpy, it is sufficient to establish a genuine dispute of material fact with regard to whether employer’s proffered reasons for firing plaintiff were not the actual motivation behind the employment action, and summary judgment to employer is denied. LABOR AND EMPLOYMENT — O.S.H.A. — REMOVAL AND REMAND 25-7-8885 Mariann A. Kozar v. AT&T, et al., U.S. Dist. Ct. (15 pp.) In a case where plaintiff contacted federal OSHA office regarding alleged eye irritations sustained as a result of airborne irritants in the workplace, and contends that her employer terminated her in violation of the Worker Health and Safety Act, N.J.S.A. 34:6A-1, et seq. and the N.J. Public Employees’ Occupational Safety and Health Act, N.J.S.A. 34:6A-25, et seq., employer’s removal of the action to the federal district court was improper, since OSHA does not completely preempt plaintiff’s state law claims, and plaintiff’s motion to remand is granted. [For publication.] A Daily Reporter of N.J. Court Decisions

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