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Vol. 4 No. 93 – MAY 15, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-8906 Richard D. Bloom v. Barry H. Evenchick, Esq., App. Div. (11 pp.) Motion judge properly granted summary judgment to attorney in legal malpractice case, concluding that client had no claim, since client’s underlying action against the N.J. Housing and Mortgage Finance Agency was barred by specific Tort Claims Act immunities. 04-2-8907 In the Matter of Shaka Taylor, Atty. at Law, App. Div. (2 pp.) A $300 sanction against a criminal defense attorney for failing to conclude a matter expeditiously is affirmed, since attorney allowed other matters to prevent the expeditious resolution of the charges against his client, which caused his client to linger in the county jail. CONTRACTS — CONSUMER PROTECTION — EQUITABLE FRAUD 11-2-8908 Barbara Anderson v. Daniel Bachrach, App. Div. (11 pp.) Special Civil Part judge properly concluded that Consumer Fraud Act did not apply to the private sale of automobile through newspaper advertisement, but erred in finding mutual mistake of a material aspect of the transaction — the true condition of the car — since the seller was at least guilty of equitable fraud since the seller was told that there were problems with the car when he bought it. LABOR AND EMPLOYMENT — OVERTIME 25-3-8909 Gloria DiMiro v. Twp. of Montclair, Law Div. (12 pp.) In a case where retired plaintiff seeks unpaid overtime compensation, the court finds that the plaintiff — employed by the township for more than 26 years as court clerk/court administrator — was employed in a bona fide executive capacity and therefore, pursuant to section 213(a) of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., is exempt from receiving overtime compensation under the provisions of 29 U.S.C. 207, and the township’s motion for summary judgment is granted. [Approved for publication May 9, 1996.] PRODUCT LIABILITY 32-2-8910 Donald W. Johnson v. General Motors Corp., App. Div. (7 pp.) In a case dealing with the alleged failure of a seat belt in a collision, since paralyzed plaintiff’s expert may not have had the opportunity to explain fully the factual basis for his opinion because plaintiff improvidently pursued this matter pro se, summary judgment should not have been granted to defendant and matter is remanded. TAXATION 35-5-8911 Mega Care Inc. v. Union Twp., Tax Ct. (10 pp.) The court affirms the taxing district’s denial of exemption claimed by nursing home under N.J.S.A. 54:4-3.6 — dealing with entities organized exclusively for hospital purposes — since the certificate of incorporation of the entity that owned and operated the nursing home did not limit the entity’s operations to those undertaken in support of and integration with those of a hospital. [Approved for publication.] 35-5-8912 Richard J. Ehrlich, et al. v. Passaic City, Tax Ct. (7 pp.) The court affirms the taxing district’s denial of exemption for property claimed to be used as a parsonage where the property was owned by claimant clergyman and his wife as individuals, since N.J.S.A. 54:4-3.6 is concerned exclusively with institutional uses of property that is both owned and used by nonprofit organizations. [Approved for publication.] CRIMINAL LAW — DOMESTIC VIOLENCE 14-2-8913 State v. Brian P. Hoffman, App. Div. (35 pp. — includes concurring/dissenting opinion) Complaining witness’s receipt from defendant by mail of two copies of the parties’ child support court order that had been ripped into pieces did not constitute (1) “harassment” within the meaning of N.J.S.A. 2C:33-4(a) nor (2) an “impermissible contact” in violation of N.J.S.A. 2C:29-9(b). [Approved for publication May 15, 1996.] CRIMINAL LAW — DOMESTIC VIOLENCE — WEAPONS FORFEITURE 14-2-8914 In the Matter of Return of Weapons of J.W.D., App. Div. (14 pp.) Weapons need not be returned under N.J.S.A. 2C:25-21d(3), even though no criminal or domestic violence charges remain and the domestic violence situation has abated, where the court finds that the owner poses a threat to the public or any person in particular; in the case at bar, because there was insufficient credible evidence to support the judge’s forfeiture order, appellant’s weapons should be returned to him. [Approved for publication May 15, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-7-8915 In re: Hyuk Rae Kim, Debtor, Mathilda Benatar, Appellant, U.S. Dist. Ct. (6 pp.) Although appellant’s failure to file an objection to debtor’s discharge does not preclude her from seeking redress against the trustee, the bankruptcy judge’s order denying appellant’s motion to reject the trustee’s report of no distribution is affirmed, since the question of trustee’s disposition of estate is a fact question, and the bankruptcy judge’s finding may not be disturbed unless it was clearly erroneous, which it was not. 42-6-8916 In re: Landmark Distrib. Inc., Alleged Debtor, U.S. Bankruptcy Ct. (44 pp.) Since the financial demise of the alleged debtor’s business was caused by the filing of an involuntary bankruptcy petition, combined with ample evidence of bad faith on the part of the petitioning creditors, an award of attorney’s fees calculated in the opinion to the alleged debtor against the petitioning creditors is justified under Code sections 303(i)(1) and -(2), and, in assessing the reasonableness of fees requested by the alleged debtor’s co-counsel, the court will deny such fees in their entirety where co-counsel’s role was that of an overseer for a related non-debtor entity and a principal of the debtor. (For prior decision in this matter, see DDS No. 42-6-7169 in the Nov. 29, 1995 Alert.) ENVIRONMENT 17-7-8917 Interfaith Community Org., et al. v. Allied-Signal Inc., et al., U.S. Dist. Ct. (45 pp.) (1) Defendants’ motion to dismiss count I of plaintiff’s complaint — alleging that defendants violated sec. 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) because the chromium-bearing waste present at the subject site presents an imminent and substantial endangerment to health or the environment — is denied, since the claim is not precluded by ongoing remediation and is ripe for adjudication. (2) Defendants’ motion to dismiss count II — alleging that defendants violated the RCRA by storing and disposing of hazardous waste at the site without a permit — is granted, since permits are not required for inactive hazardous waste disposal sites that stopped accepting such waste before RCRA was enacted. (3) Defendants’ motion to dismiss count III — alleging that defendants violated sections of the Federal Water Pollution Control Act by discharging hazardous waste into the Hackensack River without a permit — is granted, since the complaint fails to allege an actionable “discharge” as defined under the applicable law, which does not include the mere continued leaching or escaping of contaminants into water. ENVIRONMENT — ASBESTOS 17-8-8918 Robert A. Georgine, et al. v. Amchem Prods. Inc., et al. v. Admiral Ins. Co., et al., Third Cir. (84 pp. — includes concurring opinion) In a class action seeking to settle the claims of individuals who have been exposed to asbestos products against the 20 companies known as the Center for Claims Resolution, which settlement is objected to by the N.J. “White Lung Group,” the court finds that the class meets neither the R. 23(a) requirements of typicality and adequacy of representation, nor the R. 23(b)(3) requirements of predominance and superiority, and disbands the class, intimating that the Legislature should enact compensation-like statutes to deal with mass torts. EVIDENCE 19-7-8919 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (7 pp.) Although the Office of Thrift Supervision’s investigatory report regarding a savings and loan association and its former officers and directors — including defendants — is relevant to the instant action, defendants’ motion in limine to preclude plaintiffs’ introduction of the report into evidence is granted, since the report is untrustworthy — because of the absence of an evidentiary hearing on its conclusions and its lack of finality — and therefore the report does not satisfy all of the requirements to constitute a hearsay exception. INTELLECTUAL PROPERTY — RIGHT TO JURY TRIAL 53-7-8920 Hoechst Marion Roussel Inc. v. Par Pharmaceutical Inc., U.S. Dist. Ct. (7 pp.) Order denying the plaintiff’s motion to strike the defendant’s demand for a trial by jury will not be reconsidered, but plaintiff’s motion to certify the order as final for appeal purposes is granted, since a controlling question of law exists as to whether a jury trial is available on issues of noninfringement and invalidity, an issue over which a difference of opinion exists, and the immediate appeal may materially advance the ultimate termination of the litigation. A Daily Reporter of N.J. Court Decisions

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