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Vol. 4 No. 81 – APRIL 29, 1996 STATE COURT CASES ATTORNEYS 04-2-8716 In the Matter of Francis X. Moore, Esq., App. Div. (3 pp.) Where attorney was previously aware of scheduling conflict but did not advise municipal court until the morning of the trial, $500 sanction was appropriate when attorney failed to appear when conflict could not be resolved. BANKING 06-2-8717 Danco, Inc. v. Commerce Bank/Shore, N.A., et al., App. Div. (14 pp.) Motion judge properly granted summary judgment in favor of bank since checks drawn to plaintiff and third-party defendant jointly required only one valid signature, which was present, and the forgery of the second signature, being unnecessary, did not make the checks “paid on forged endorsements.” [Approved for publication Apr. 29, 1996.] DEBTOR/CREDITOR 15-2-8718 Peirce-Phelps, Inc. v. Lozetta P. Deangelo v. Robert A. Deangelo, App. Div. (5 pp.) Where plaintiff sued to enforce a suretyship agreement with full knowledge that the defendant was divorced from her husband and would not agree to continue to guarantee his business obligations, the plaintiff acted in bad faith and judgment in favor of plaintiff on suretyship agreement is reversed. EDUCATION 16-2-8719 G. Michael Nelson v. Bd. of Education of the Twp. of Old Bridge, App. Div. (12 pp.) Binding precedent requires that petitioner be appointed to the position of principal of elementary school over the non-tenured appointee, and the administrative determination to the contrary is reversed. LAND USE 26-2-8720 Robert J. Gilligan v. Zoning Bd. of Adjustment of East Amwell Twp., et al., App. Div. (10 pp.) The application of res judicata to preclude the convenience store/delicatessen use of plaintiff’s property was unreasonable, and changed circumstances were created as soon as the Board concluded that plaintiff had satisfied the positive and negative criteria for the granting of a variance for a broad spectrum of other general retail uses at the site; the board was obliged to make specific findings of fact regarding the permitted and prohibited uses. 26-2-8721 Mt. Hope Development Associates, etc. v. Rockaway Twp. Planning Bd., et al., App. Div. (18 pp.) Where developer and township had settled a Mt. Laurel action, and developer then attempted to comply with settlement by deeding a parcel to township, but realigned a road and boundary within the deed, not contemplated by the settlement, the judge properly dismissed developer’s complaint in lieu of prerogative writ and affirmed the planning board’s dismissal of developer’s variance application without prejudice, since, although the realignment of the road was part of plaintiff’s application before the planning board for several years before the boundary issue was raised, this did not bind the town to the altered boundary. NEGLIGENCE 31-2-8722 Frank Pannelli, et al. v. Astoria Bldrs. Corp., et al., App. Div. (21 pp.) In plaintiff’s action for injuries sustained on a construction site, although there was sufficient evidence to support the verdict in his favor on liability, the damages verdict must be reversed, since the trial court erred by permitting doctor to render a “net opinion” that related plaintiff’s alleged impotence to the accident. 31-2-8723 Shelly Triebel v. W.L. Goodfellows & Co., Inc., etc., et al., App. Div. (6 pp.) Since the record discloses no foreign substances or dangerous condition that arguably might have been considered a cause of plaintiff’s fall in defendant’s restaurant, summary judgment for defense was proper. PHYSICIAN/PATIENT 29-2-8724 Edward Potosnak v. Frank Iannetta, M.D., et al., App. Div. (10 pp.) Since plaintiff’s claim would require a jury to do no more than apply its collective common sense to determine whether the risk of fainting from having blood taken was such that it was unreasonable for the nurse to have left plaintiff alone, judge erred in dismissing malpractice case for failure to establish a standard of care. PRODUCT LIABILITY 32-2-8725 Innovative Lithographers, Inc., etc. v. Northern Adhesives, Inc., et al., App. Div. (10 pp.) In a case for damages caused by the failure of boxes to remain sealed, while plaintiff’s expert stated that defendant’s glue was not a proper adhesive for the paper boxes, he gave no reasons why, and, since his opinions are only net opinions, summary judgment for defense was proper. PUBLIC EMPLOYEES 33-2-8726 James Lovett v. Dept. of Personnel, App. Div. (7 pp.) Administrative Law Judge properly dismissed appeal of layoff, determining that Corrections Commissioner was not required to consult with appellant’s immediate supervisors in preparation of layoff plan, and, further, that appellant failed to support his contention that the layoff was motivated by bad faith. TAXATION 35-5-8727 TMC Properties v. Wharton Borough, Tax Ct. (12 pp.) Taxpayer’s unreturned phone calls to assessor and revaluation company did not constitute a sufficient “response” to Chapter 91 request to furnish income information, nor did they establish “good cause” to extend the 45-day time limit, and motion to dismiss tax appeal was properly granted even though the information ultimately supplied by the taxpayer was used in setting the revaluation assessment. [Approved for publication.] 35-5-8728 Jepson Refrigeration Corp. v. Trenton City, Tax Ct. (7 pp.) Where plaintiff chose to obtain a quick resolution of its case by filing appeal with the county board, rather than directly with the Tax Court, and then failed to abide by the county board’s rule that appraisal report be submitted at least seven days before hearing, even after it had been granted a liberal adjournment, board’s dismissal of appeal for failure to prosecute is affirmed. [Approved for publication.] TORTS 36-2-8729 Virginia Dalton, et al. v. Cesar Barone, et al., App. Div. (4 pp.) Dismissal of plaintiffs’ tort action for lack of prosecution was improper since plaintiffs’ appeal of their PIP matter — involving their religious objections to undergoing independent medical examinations — was unresolved at the time, and the tort action was supposed to be on the inactive list pending the PIP resolution, however, the court affirms the dismissal anyway, since the restoration of the matter will have no other result than continuing the litigation of the issue of the religious objections to the independent physical examination. FEDERAL COURT CASES CIVIL RIGHTS 46-7-8730 Shawn Hines v. Federal Bureau of Investigation, U.S. Dist. Ct. (7 pp.) The four counts of plaintiff’s “hodgepodge of incoherent and even delusional claims” against the federal government are barred by sovereign immunity, and are dismissed, and the other counts against individuals are also dismissed for plaintiff’s failure to exhaust administrative remedies. 46-7-8731 George Lahood v. Cynthia Smith, et al., U.S. Dist. Ct. (7 pp.) Plaintiff’s section 1983 claims against defendants are dismissed, inasmuch as the wrongful conduct alleged — including refusal to speak to plaintiff, refusal to direct that summonses be issued on plaintiff’s complaints, and failure to investigate plaintiff’s claims — do not rise to the level of deprivation of constitutional rights; plaintiff’s claims against judges are also barred by judicial immunity. CORRECTIONS — CLASS CERTIFICATION 13-7-8732 Darryl Rouse, et al. v. William Plantier, et al., U.S. Dist. Ct. (27 pp.) In a case where diabetic inmates seek declaratory and injunctive relief against prison officials for allegedly inappropriate medical treatment, since plaintiffs have met the factors of numerosity, commonality, typicality and adequacy of representation, class certification is granted. LABOR AND EMPLOYMENT 25-7-8733 Martha A. Wozniak v. Bristol-Myers Squibb Co., et al., U.S. Dist. Ct. (22 pp.) Since plaintiff has failed to present sufficient evidence to allow a trier of fact to determine that a causal link existed between plaintiff’s protected activity — complaining about her superior — and the adverse employment actions to which she was subjected — denial of promotion and discharge — her claims of retaliation are dismissed. NEGLIGENCE — SOCIAL GUESTS 31-7-8734 Joseph Vitiello, etc., et al. v. Tracy Paton, et al., U.S. Dist. Ct. (7 pp.) The placement of a cup of hot tea on a counter was not a breach of the duty of reasonable care owed by defendants to plaintiffs as social guests, since no reasonable factfinder could conclude that such a condition was unreasonably dangerous, even in the presence of plaintiff’s child, who was burned when he pulled the cup of tea down on himself, therefore summary judgment is granted to defendants. Editor’s clarification: In the Alert dated April 18th, a note was included indicating that DDS No. 20-2-7925 James Moss v. Anne C. Nedas, etc. (decided Feb. 20, 1996) was approved for publication. Due to a change of editors during vacation, the Alert dated April 19th inadvertently contained a new summary of the case under DDS No. 20-2-8654. These cases are one and the same. We regret any confusion. A Daily Reporter of N.J. Court Decisions

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