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Vol. 4 No. 84 – MAY 2, 1996 STATE COURT CASES CONTRACTS 11-2-8763 Garibaldi Realty Corp., etc. v. Hartz Mt. Industries, Inc., etc., et al., App. Div. (7 pp.) Since brokerage agreement unambiguously entitled plaintiff to a commission if, as here, the procured tenant purchased the premises, and since the agreement’s plain terms did not support defendant’s contention that the commission was only due under the particular circumstances of an option, summary judgment for plaintiff was proper. CONTRACTS — FRANCHISES 11-2-8764 Dirk Kuyk, et al. v. Karastan Bigelow, etc., App. Div. (11 pp.) In suit alleging wrongful severance of a business relationship, (1) a home is not a “place of business” under the Franchise Practices Act, (2) parol evidence rule bars testimony that one party’s representatives orally advised the other party that contract’s termination provisions would not be exercised absent good cause, but (3) a triable issue is raised as to breach of implied covenant of good faith and fair dealing where plaintiff produces sufficient evidence to create a question of fact whether defendant delayed shipment of orders. DEBTOR/CREDITOR 15-2-8765 Licette Music Corp., et al. v. A.A. Records, Inc., et al., App. Div. (5 pp.) Denial of debtors’ motion to deem judgments against them satisfied was error, since there is evidence that master recordings against which creditors levied were worth far in excess of judgment amount, and debtors are entitled to a fair market value hearing. DEBTOR/CREDITOR — FORECLOSURES — SHERIFF’S SALES 15-2-8766 Dime Savings Bank of N.Y., F.S.B. v. Onik Kaloian, et al.; Not Just for Athletes, Inc., et al, Intervenors, App. Div. (9 pp.) Although mortgagees did not have statutory notice of sheriff’s sale, they had actual notice of the sale, and therefore their application to set aside the sale was time-barred under R.4:65-5. FAMILY LAW 20-2-8767 Joanne Ribner v. Chester David Ribner, App. Div. (13 pp.) (1) Absent sufficient medical information about the status of a child’s obsessive compulsive disorder, court’s deeming child emancipated was error.(2) Wife’s income should have been considered in court’s determination of whether support should be modified. (3) Court erred in fixing arrears and ordering payment thereof without stating reasons for the amount or the basis for the payments. [Approved for publication May 2, 1996.] 20-2-8768 Diane H. Fulton, etc. v. Robert H. Leffingwell, App. Div. (6 pp.) Ordering wife to split husband’s business debts equally was error since wife, although a shareholder in the company, played only a minor role in running it, and case is remanded for hearing on the exact meaning of the divorce judgment as to business debts which may be attributable to wife as shareholder. INSURANCE 23-2-8769 Corey Ragin, etc., et al. v. Judith Orabona, et al., App. Div. (5 pp.) Since mere ownership of uninsured but inoperable car did not preclude recovery from the Unsatisfied Claim and Judgment Fund, and since Fund did not act with reasonable diligence in investigating the claim, application to set aside judgment due to plaintiff’s misrepresentations about her ownership of an automobile are without merit. INSURANCE — ADMINISTRATIVE 23-2-8770 In the Matter of the Appeal of Schuller Intl., Inc., etc., App. Div. (4 pp.) N.J. Self-Insurers Guaranty Association came into existence on April 16, 1993, the date on which the legislation was enacted, not July 7, 1994, when the Insurance Commissioner approved its plan of operation, and employer self-insured as of the enactment date was properly held liable for a member assessment for the year 1994. INSURANCE — FIRE — APPRAISALS 23-2-8771 Delvin Associates, Inc. v. Farmers Mutual Fire Assurance Association of N.J., App. Div. (12 pp.) Appraisal award of a fire loss by a court-appointed umpire acting with another appraiser pursuant to a standard fire insurance policy was properly affirmed, and plaintiff’s contentions that insurer waived its right to demand submission to the appraisal process, that the court appointed an inappropriate umpire, and that the award was both procedurally defective and unreasonable are without merit. INSURANCE — P.I.P. 23-2-8772 George Mayers, et al. v. Hanover Ins. Co., etc., App. Div. (6 pp.) Judgment is affirmed in favor of plaintiff, awarding him PIP benefits for medical expenses incurred following a multi-vehicle accident, since the evidence supports the judge’s finding that the stress from the accident converted “a relatively stable anginal pattern pre-accident to an unstable one,” establishing the required nexus between accident and injury. LAND USE 26-2-8773 Bergen Metals v. Bergenfield Bd. of Adjustment, App. Div. (5 pp.) Plaintiff’s storage of scrap metals in connection with its recycling business did not constitute a use which was substantially similar to any valid non-conforming uses existing at the time the ordinance in question was passed, and the judge correctly affirmed the building inspector’s determination that plaintiff’s use of leased land was illegal. 26-2-8774 Intervine Outdoor Advertising, Inc. v. City of Gloucester City Zoning Bd. of Adjustment, et al., App. Div. (11 pp.) Although ordinance is constitutional to the extent it regulates commercial speech with respect to outdoor signs, it is unconstitutional to the extent it limits noncommercial speech in signs to a temporary period not to exceed sixty consecutive days in any calendar year.[Approved for publication May 2, 1996.] PARENT/CHILD 28-2-8775 In the Matter of the Guardianship of N.M.W., et al., App. Div. (5 pp.) In light of the mother’s long history of alcohol and drug abuse, her borderline personality disorder and her incapacity to function as a parent to her children, mother’s parental rights were properly terminated. REAL ESTATE — E.C.R.A. — I.S.R.A. 34-2-8776 Duro-Test Corp. v. Jose Nodar, et al., App. Div. (9 pp.) The parties’ intent at the time they executed a purchase agreement, as well as whether a subsequent change in the applicable statutory and regulatory environmental standards should be incorporated into the agreement, are issues that cannot be decided on summary judgment on the basis of the contract language cited by the trial court. TAXATION 35-5-8777 Norman Appel v. City of Englewood, App. Div. (14 pp.) (1) Subject property, improved as a residence but deemed obsolete and suitable for demolition, was properly assessed as vacant rather than improved land because its value as vacant land, on which a new residence could be erected, exceeded its improved value. (2) No increase in assessment is permitted where municipality has failed to file a counterclaim in a revaluation year when no discrimination is alleged, even if the court finds that the true value of the property exceeds the assessment. [Approved for publication.] WRONGFUL DEATH 40-2-8778 Amalia Ramirez, etc. v. N.J. Transit, et al., App. Div. (7 pp.) Where decedent was killed by a train while walking on railroad tracks, summary judgment to defendants was properly granted as to claim under N.J.S.A. 59:4-2 — that a dangerous condition existed because of defendant’s failure to erect a fence to prevent pedestrians on the tracks — but claims against public employees based on traditional common-law negligence theories should not have been dismissed. CRIMINAL LAW 14-2-8779 State v. Joseph S. Maduri, App. Div. (4 pp.) Where arresting officer never intended to perform a Breathalyzer such a test, but instead intended to determine defendant’s blood alcohol level by obtaining blood samples, which he did not do, conviction for refusal to submit to a Breathalyzer test was improper. 14-2-8780 State v. Bruce Johnson, App. Div. (9 pp.) The import of the reliability hearing testimony of the apparently-intended victim entitles defendants to a new trial. 14-2-8781 State v. Anthony Mastapeter, App. Div. (11 pp.) Defendant is not entitled to “jail time” credit, pursuant to R.3:21-8, for the time he was required to participate in an electronic monitoring wristlet program as a condition of his pretrial release. [Approved for publication May 2, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-8-8782 In re: Ralph E. Taylor, Debtor, Third Cir. (10 pp.) District Court properly held that the pendency of debtor’s prior bankruptcy in another state tolled the three-year nondischargeability period for unpaid taxes. INSURANCE — INTELLECTUAL PROPERTY — DUTY TO DEFEND 23-7-8783 Schreiber Foods, Inc., etc. v. American National Fire Ins. Co., etc., et al., U.S. Dist. Ct. (12 pp.) Since defendant’s insurance policy covers only injuries causally connected to plaintiff’s advertising activities, defendant has no duty to defend plaintiff in underlying patent infringement action in which the allegations are not as to injuries arising from the face of any advertisement itself or from the message it conveys. PENSIONS — E.R.I.S.A. 56-7-8784 Bruce L. Crumley v. Stonhard, Inc., et al., U.S. Dist. Ct. (22 pp.) In suit for pension benefits, defendant is granted summary judgment since (1) plan satisfies the criteria for exemption from ERISA’s fiduciary duty requirements because it is undisputedly unfunded and exists for the purpose of providing deferred income for select employees and (2) ERISA preempts state law claims regarding breach of fiduciary duty, intentional and intentional misrepresentation or omission, and breach of implied covenant of good faith and fair dealing. [For publication.] A Daily Reporter of N.J. Court Decisions

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