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Vol. 4 No. 86 – MAY 6, 1996 STATE COURT CASES NEGLIGENCE 31-1-8791 Cidalina O. Carvalho, etc. v. Toll Bros. and Developers, et al., Supreme Ct. (19 pp.) Although engineer hired by township to monitor the progress of work on sewer construction project was not contractually responsible for safety conditions, he was aware of working conditions on the site that created a serious risk of injury to workers and so had a legal duty to exercise reasonable care for the workers’ safety, and summary judgment in his favor was improvidently granted. CRIMINAL LAW AND PROCEDURE — SENTENCING 14-2-8792 State v. Barnabas Davis, App. Div. (6 pp.) Judgment of conviction by which defendant was ordered to pay penalties for each of two offenses that had been merged for sentencing, was erroneous since even though both convictions survive the merger, only one sentence may be imposed. FEDERAL COURT CASES ADMIRALTY — LOSS OF CARGO — RELIEF FROM JUDGMENT 54-7-8793 Hyundai Corp., U.S.A., et al. v. The Hull Ins. Proceeds of the M/V Vulca, et al., U.S. Dist. Ct. (15 pp.) Defendant charterer which failed to exercise due diligence to provide a seaworthy vessel, in violation of the Carriage of Goods by Sea Act, 46 U.S.C. 1300, et seq., was properly found liable for lost cargo but is entitled to an offset under equitable principles, since insurance payment plaintiff had received to cover the loss would otherwise represent a windfall. ATTORNEY/CLIENT — BANKRUPTCY — ENTIRE CONTROVERSY 04-6-8794 In re: Hudsar, Inc., Debtor; Mary Ellen Paterson, et al. v. Everett M. Scherer, et al., U.S. Bankruptcy Ct. (42 pp.) (1) Because of attorney’s prior relationship with plaintiff, there is a genuine issue of material fact as to whether the attorney and his law firm knew, or should have known, that plaintiff would rely on the representations made to her regarding her loan to debtor, and, therefore, summary judgment cannot be granted on plaintiff’s malpractice claim on the ground that plaintiff was not the firm’s client, however, (2) under the entire controversy doctrine, plaintiff should have brought the factually- and transactionally-related malpractice claim in either of her prior proceedings in the matter — dealing with the extent and validity of her lien, and seeking law firm’s disgorgement of fees — and summary judgment dismissing the malpractice claim is granted on that basis. CIVIL PROCEDURE — EXCUSABLE NEGLECT 07-7-8795 Jacob Goldfarb, et al. v. Cunard Lines, et al., U.S. Dist. Ct. (3 pp.) Attorney’s excuse that “the holidays and his work schedule” prevented him from filing a timely notice of appeal are not sufficient to constitute excusable neglect, nor are plaintiffs without fault, since they failed to supply the attorney with opposition to the motion for summary judgment against them, therefore plaintiffs’ motion to extend the time to file the notice of appeal is denied. CIVIL RIGHTS — IMMUNITIES 46-7-8796 Janice Puttorak Hendler, etc. v. Essex County Dept. of Public Safety, et al., U.S. Dist. Ct. (5 pp.) Division of Youth and Family Services’ motion to dismiss is civil rights claims against governmental agencies for the arrest and subsequent death of decedent in jail is granted, since the Division is an agency of the State government, the State has not waived its immunity, and Section 1983 does not provide for suits against states or their agencies. CONTRACTS — WARRANTIES 11-7-8797 R.J. Longo Constr. Co., Inc., etc. v. Transit America, Inc., et al., U.S. Dist. Ct. (44 pp.) Although there is no contract document between designer of specialized rail cars and plaintiff, which ordered rail cars from co-defendant, the record reveals a series of representations, assurances, promises, undertakings and inducements by designer, acting together with co-defendant, on which plaintiff relied to its detriment and which could support a promissory estoppel or implied-in-fact contract claim, as well as plaintiff’s contention that it was a third-party beneficiary of the agreement between designer and co-defendant. [For publication.] DEBTOR/CREDITOR — GUARANTIES 15-7-8798 Ware Industries, Inc. v. Twin County Steel Service, Inc., et al. v. Edward DiGirolamo, et al., U.S. Dist. Ct. (16 pp.) (1) Where contract, which was the result of equal bargaining power and not of any coercion, clearly stated that plaintiff’s liability to defendant was limited to the replacement of noncomplying goods or repayment of or credit for the purchase price upon plaintiff’s being notified of any defects, the court grants plaintiff summary judgment on the outstanding book account balance, together with finance charges and reasonable attorneys’ fees, since defendant cannot prove it notified plaintiff of any defective materials beyond those for which it did receive credit. (2) Since the individual defendants’ guaranty clearly states that it may be pursued without the necessity of action first being taken against the business entity, summary judgment against the individual defendants is granted as well. INSURANCE — ATTORNEYS — ENTIRE CONTROVERSY 23-7-8799 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (30 pp.) (1) Attorney’s answer to question on application for professional liability insurance, regarding the existence of possible claims against the law firm, consituted equitable fraud and the insurer is entitled to reformation and (2) reformation claim is not barred by the entire controversy doctrine since, although insurer’s prior declaratory judgment action and current action share the same set of core facts concerning attorney’s misrepresentations, the dual purposes of the doctrine — fairness and judicial efficiency — would not be served by its application in this case. [Related case: 36-7-8803, below.] Approved for publication. LANDLORD/TENANT — COMMERCIAL LEASES — PARENT COMPANIES 27-7-8800 Jack LaLanne Fitness Centers, Inc., et al. v. Jimlar, Inc., et al., U.S. Dist. Ct. (18 pp.) Parent corporations of tenants not parties to lease are not liable for payment of retroactive rent adjustments, since the landlord has not shown requisite fraud or injustice committed by the corporate parent through the subsidiary tenants to warrant piercing of the corporate veil. NEGLIGENCE — SELLERS OF PROPERTY — TORT CLAIMS ACT 31-7-8801 Latanya Moss v. U.S.A., U.S. Dist. Ct. (6 pp.) Where the Veterans’ Administration 10 years earlier sold property that purchaser accepted “as is” and assumed responsibility for, government is granted summary judgment on claim of plaintiff injured thereon, since it did not create a condition that caused the alleged injury nor did it have an obligation to maintain the property subsequent to its sale. TELECOMMUNICATIONS — DECEPTIVE ADS — FEDERAL CLAIMS 57-7-8802 Marvin Weinberg, etc. v. Sprint Corp., U.S. Dist. Ct. (26 pp.) Federal jurisdiction is lacking and remand is appropriate, since the plaintiff class’s complaint — that defendant’s “dime-a-minute” promotion constitutes deceptive and misleading advertising — is based on state common and statutory law and does not implicate federal telecommunications laws. [For publication.] TORTS — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 36-7-8803 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (4 pp.) (1) Although plaintiffs, in their suit for malpractice, may claim emotional damages, they may not assert it as the separate tort of intentional infliction of emotional distress, since it is time-barred. (2) Although defendants did not plead the statute of limitations as a defense in their answer, several other defendants did, and the court finds defendant did not waive the defense. [Related case: 23-7-8799, above.] A Daily Reporter of N.J. Court Decisions

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