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Vol. 4 No. 87 – MAY 7, 1996 STATE COURT CASES ALCOHOLIC BEVERAGES 47-2-8804 In the Matter of Richard T. Fleming, et al., App. Div. (9 pp.) Decision of Director of the Division of Alcoholic Beverages — denying realtors further authorization to apply for renewal of their liquor license after several extensions beyond the legal period of inactivity — was not arbitrary or capricious, since the realtors’ evidence of possible sale and reactivation of the license was speculative. [Approved for publication May 7, 1996.] FAMILY LAW — BANKRUPTCY 20-2-8805 Patricia Anne Giarratano v. Orrin Kenneth Gensinger Jr., App. Div. (7 pp.) Where wife filed bankruptcy and her 50 percent of a marital debt was discharged, leaving husband responsible for both his and the wife’s share of the debt, the trial court erred in granting husband a credit against child support for wife’s portion of the debt, since wife’s bankruptcy discharge operated as a bar to any later action which would have the effect of creating a liability against her, as the discharged debtor. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8806 Dianne M. Steele v. Bd. of Review, et al., App. Div. (4 pp.) Administrative agencies below were free to accept employer’s version of employee’s leaving company — that employee was unsatisfied with her position and chose to leave voluntarily — and such decision is neither arbitrary nor capricious; therefore denial of unemployment compensation benefits is affirmed. 25-2-8807 James Prunier v. Bd. of Review, et al., App. Div. (4 pp.) Unemployment benefits were properly denied because employee did not timely mail claim form, and did not give any reason for the delay other than to state that he had started a new job, which does not constitute “good cause.” LANDLORD/TENANT 27-2-8808 N.T. Hegeman Co. Ltd., etc. v. The Mall at IV Group, etc., et al., App. Div. (4 pp.) Court’s decision in landlord’s favor — as to leases’s use restriction issue and also as to the meaning and calculation of the term “gross revenues” in rent increase computation — is affirmed, and the court did not err in disallowing tenant to change its designated expert for the third time on the eve of trial. LAND USE 26-2-8809 Franklin 27 Dev., etc. v. Bd. of Adjustment of the Twp. of Franklin, etc., App. Div. (6 pp.) Board of Adjustment did not err in resolving inconsistency between master plan and zoning ordinance in favor of the zoning ordinance, and its denial of plaintiff’s residential subdivision variance is reinstated. NEGLIGENCE — CHARITABLE IMMUNITY 31-2-8810 Gertrude Sarno v. Spring Lake Community Theatre Ass’n, et al., App. Div. (12 pp.) Summary judgment on the basis of charitable immunity was properly granted to board of trustees of community house in plaintiff’s slip-and-fall case, since plaintiff, attending a play at the community house, clearly was a beneficiary of the charitable purpose of the community house. NEGLIGENCE — CONTINUING TORTS 31-1-8811 Russo Farms Inc., et al. v. Vineland Bd. of Educ., et al., Supreme Ct. (43 pp.) Summary judgment was wrongly granted to defendants in plantiffs’ case for water damage to farm crops — that allegedly resulted from the faulty design and construction of a new school — since the flooding constitutes a continuing tort with each incursion of water, and the dangerous condition claims against the city and the board of education, as well as the nuisance claims against the city, may be pursued to the extent that injury was suffered in the relevant limitations period; the nuisance claims against the board require further investigation into their continuing nature on remand. On a more complete record, plaintiffs also may pursue their inverse condemnation claim. Claims against architect and general contractor are time-barred, however, since there is no continuing tort relating to the building’s negligent construction. REAL ESTATE — BROKERS’ COMMISSIONS 34-2-8812 Estrella Piemontese v. Leonel Arboleda, et al., App. Div. (4 pp.) The evidence supports the trial judge’s findings that home buyers and sellers met through relatives after the listing agreement with the plaintiff had expired, and that, despite her assertions to the contrary, plaintiff did not show the premises to the buyers because they were not included on a list of people to whom plaintiff had reportedly shown the home; summary judgment denying plaintiff a commission is affirmed. WORKERS’ COMPENSATION 39-2-8813 Juan Quintana v. Coastal Storage Inc., App. Div. (5 pp.) The record contains sufficient credible evidence to support compensation judge’s finding that petitioner had not sustained his burden of proving permanent disability and had not presented proof that his dental problem was related to the disability of the compensable accident. CRIMINAL LAW AND PROCEDURE 14-2-8814 State v. Frederick White, App. Div. (14 pp.) Defendant’s right of confrontation and right to a fair trial were violated when the prosecution called the codefendant as a state’s witness, notwithstanding its foreknowledge that the witness intended to invoke his privilege against self-incrimination, and the error was compounded by the court’s failure to immediately end the testimony and provide the jury with a curative instruction. CRIMINAL LAW AND PROCEDURE — D.W.I. — SECOND OFFENDERS 14-2-8815 State v. Nelson Fielding, App. Div. (5 pp.) Where defendant had two prior DWI convictions, the last of which was more than 10 years old, he correctly received the benefit of one step-down, avoiding a 10-year license suspension, and was properly sentenced as a second offender for refusal to submit to a breathalyzer test. [Approved for publication.] FEDERAL COURT CASES CIVIL RIGHTS 46-7-8816 Rosetta Holmes, etc., et al. v. City of Paterson, et al., U.S. Dist. Ct. (15 pp.) In a case where plaintiffs sue for housing police officer’s killing of a 16-year old during a drug-related search, denial is required of municipal housing authority’s motions (1) to dismiss counts against it, since there is evidence that could sustain plaintiffs’ contention that housing authority exercised control over the subject officers, and, (2) to dismiss plaintiffs’ claim for punitive damages, because housing authority has not affirmatively established that it is a “municipality” entitling it to immunity from punitive damages. DEBTOR/CREDITOR — ENTIRE CONTROVERSY DOCTRINE 15-7-8817 Springfield Oil Drilling Corp. v. Charles McMahon; Springfield Oil Servs. Inc., et al. v. Robert D. Curran, U.S. Dist. Ct. (20 pp.) Plaintiff’s current claims — seeking to collect on various notes which defendants executed in connection with investments and limited partnerships which were the subject of prior litigation — are barred by the entire controversy doctrine. INTELLECTUAL PROPERTY 53-7-8818 Medi USA L.P. v. Aircast Inc., U.S. Dist. Ct. (20 pp.) In plaintiff’s suit seeking a declaratory judgment of non-infringement, (1) based upon the language of defendant’s patent and the court’s direct observations and application of the law, the court holds that the plaintiff’s ankle brace does not literally infringe on defendant’s patent, and summary judgment is granted to plaintiff on that claim, however, (2) there is not sufficient information in the record for the court to make a determination as to whether the ankle brace infringes under the doctrine of equivalents, and summary judgment on that claim is denied without prejudice. LABOR AND EMPLOYMENT — EQUAL PAY 25-7-8819 Bari M. Dubowsky v. Stern, Lavinthal, et al., U.S. Dist. Ct. (24 pp.) Female attorney has made out a prima facie case of gender discrimination under the Equal Pay Act, the New Jersey Law Against Discrimination, and the New Jersey equal pay statute, and law firm’s motion for partial summary judgment is denied. [For publication.] LANDLORD/TENANT 27-7-8820 Net Realty Holding Trust v. Consumers Discount Inc., et al., U.S. Dist. Ct. (14 pp.) The evidence supports the finding that landlord made all commercially reasonable efforts in good faith to locate a tenant for the premises which defendant had occupied prior to default, and, having thus mitigated its damages, landlord is entitled to recover damages from the tenant.

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