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Vol. 4 No. 74 – APRIL 18, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-8627 Martin Bader, et al. v. Daniel Amster, App. Div. (7 pp.) Since there exist many factual issues regarding attorney’s agreement with condominium owners, whom he represented in a tax appeal, as well as his agreement with the condominium management company who hired him, summary judgment was inappropriate in suit over the attorney’s fees. CONTRACTS — CAR REPAIR 11-2-8628 John P. Green v. Gibraltar Transmissions, App. Div. (3 pp.) The record supports the trial judge’s conclusions that plaintiff had been told by car repair shop that the removal of his transmission went beyond the advertised “free diagnosis” and that there was no agreement to repair the transmission. CONTRACTS — SETTLEMENTS 11-2-8629 Continental Medics Enterprises, Inc. v. King Manor Lodge, Inc., et al. v. Clapp & Eisenberg, P.C., et al., App. Div. (4 pp.) Trial judge did not err in ordering defendants’ attorney to sign settlement documents in the face of defendants’ objections, since the evidence shows that there was no mistake, that the settlement was understood and agreed to, and that it should be enforced. EDUCATION — LAW AGAINST DISCRIMINATION 16-2-8630 George W. Swope v. Westminster Choir College, et al., App. Div. (5 pp.) In affording the plaintiff the benefit of all favorable inferences, the court properly concluded, as a matter of law, that the uncontested evidence showed that plaintiff’s dismissal from college was for his refusal to withdraw from the church music education course and for his poor grades, not for his depression disability. FAMILY LAW 20-2-8631 Philip Abish v. Nancy Abish, App. Div. (3 pp.) Citing the entire controversy doctrine, the judge correctly held that plaintiff was required to raise for resolution in his divorce proceedings all issues then known to be in controversy between the parties, and denial of plaintiff’s motion to enforce litigant’s rights under a separation and property settlement agreement which predated the divorce proceedings was appropriate. 20-2-8632 John H. Landor v. Linda M. Landor, App. Div. (8 pp.) (1) Considering that the advantage to the retiring plaintiff did not substantially outweigh the disadvantage to the defendant — his ex-wife — the court correctly refused to view the plaintiff’s retirement as a change of circumstances and properly denied plaintiff’s request for termination of alimony. (2) The court correctly balanced the financial circumstances of the parties, and defendant’s bad faith abundant in the record, in denying defendant’s counsel fee application. INSURANCE 23-2-8633 New Brunswick Scientific Co., Inc., et al. v. The Continental Ins. Co., et al., App. Div. (12 pp.) The motion judge correctly ruled that coverage must be provided to plaintiff under its comprehensive general liability policy — for suit brought by plaintiff’s employee — since employee’s complaints, although largely “emotional,” include loss of appetite, weight loss, and a loss of sexual drive, which are physical manifestations of the emotional problems, and therefore qualify as “bodily injury” covered by the policy. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-8634 Liza Bianchi v. N.J. Manufacturers Ins. Co., App. Div. (7 pp.) Although the record does not support a conclusion that plaintiff was disabled after the accident such that she could not notify the police, the court nonetheless excuses plaintiff from strict compliance with the police notification requirement of the policy because compliance would not have served the purposes of the provision, and order declaring that plaintiff is entitled to UM coverage is affirmed. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-2-8635 John D. Cline v. Alden Leeds, Inc., et al., App. Div. (6 pp.) Arbitration of plaintiff’s wrongful dismissal claim under union bargaining agreement does not constitute res judicata against the subsequent submission of a claim, arising from the same circumstances, alleging racial discrimination under Title VII of the Civil Rights Act or under the N.J. Law Against Discrimination, and the court reverses its prior ruling that the claim was so precluded. LANDLORD/TENANT — CONDOMINIUMS 27-2-8636 J.S.B.G. Financial, Inc. v. Kevin McKenzie, App. Div. (3 pp.) Since landlord failed to properly serve tenant with the required notice of the building’s conversion to, or status as, a condominium, the regulations permit tenant to demand three years’ notice, and suit for possession based on 60 days’ notice was properly dismissed. NEGLIGENCE 31-2-8637 Guiseppe Conigliaro, et al. v. William S. Zbrozek, et al., App. Div. (4 pp.) The evidence supports the the trial judge’s finding that defendant was clearly negligent in hitting plaintiff’s car, despite the vision difficulties created by a nearby fire, and the judge’s grant of plaintiff’s new trial request after jury verdict in favor of defendant is affirmed. NEGLIGENCE — POLICE PURSUITS 31-2-8638 Tammi L. May v. Daniel S. Schmitz, et al., App. Div. (8 pp.) The immunity of a police officer for accidents which occur while the officer is in pursuit of an escaping driver is absolute, and the motion judge erred in denying summary judgment to the defendants. NEGLIGENCE — SELF-STORAGE FACILITIES 31-2-8639 Nadirah Shareef v. Clifton Self-Storage, Inc., et al., App. Div. (5 pp.) Defendant self-storage facility did not have a duty periodically to patrol its premises for the safety of persons renting storage units, and summary judgment in favor of facility — on plaintiff’s complaints for injuries sustained when she fell in her unit and was not discovered for 43 hours — is affirmed. PARENT/CHILD 28-2-8640 Richard Kenny v. Sheila Killion, App. Div. (9 pp.) Although the judge should have applied the changed- circumstances standard to father’s request for change in child custody because the mother had permanent custody under a former judgment, the trial judge nonetheless correctly considered the statutory criteria concerning child custody, and, irrespective of which standard he used, his findings and conclusion that it was in child’s best interest to reside with father were amply supported by the record. PRODUCT LIABILITY 32-2-8641 Bruce Iorio, et al. v. Wayne Dodge, et al., App. Div. (7 pp.) In a case concerning defects in a used car, the trial court correctly granted summary judgment to defendants since the plaintiffs needed expert evidence to establish liability and had refused to produce such evidence despite repeated opportunities and court directives to do so. CRIMINAL LAW AND PROCEDURE 14-2-8642 State v. Peter Robinson, App. Div. (16 pp.) Where the circumstances surrounding defendant’s unlawful entry do not give rise to any ambiguity as to defendant’s purpose in entering the structure without privilege to do so, the jury could reasonably have concluded that some unlawful act was intended to be committed inside, and the judge did not err in failing to delineate any specific and precise unlawful acts which defendant intended to commit. (Emphasis supplied by court.) [Approved for publication Apr. 18, 1996.] 14-2-8643 State v. Christopher Barbieri, App. Div. (14 pp.) There was sufficient testimony to require a charge on self-defense in connection with the charges of fourth degree aggravated assault and terroristic threats, and defendant’s convictions are reversed since the judge failed to give such a charge. 14-2-8644 State v. Michael Dent, App. Div. (5 pp.) On the evidence presented, the judge erred in failing to charge the jury on the lesser offense of “joyriding.” FEDERAL COURT CASES BANKRUPTCY 42-6-8645 In re: Charles Figlio, et al., debtors; Charles Figlio v. American Management Svcs., Inc., et al., U.S. Bankruptcy Ct. (11 pp.) The effect of the reopening of the bankruptcy case was to revive all of the substantive and procedural bankruptcy rights and to reinstate the administration of the estate, including the administration of the debtor’s disputed asset in this case — his cause of action against the defendant — and thus, the court finds that the case was never “closed” within the meaning of 11 U.S.C. 544(c) and the lawsuit was never abandoned. BANKRUPTCY — JURY TRIALS 42-6-8646 In re: Lands End Leasing, Inc., Debtor; Peggy E. Stalford, Trustee, etc. v. Blue Mack Transport, Inc., etc., et al., U.S. Bankruptcy Ct. (20 pp.) In an adversary proceeding, the defendants are not entitled to a jury trial on the trustee’s equitable claims seeking a turnover of property, and an accounting of estate assets, but they are entitled to a jury trial on the claims of fraud and breach of fiduciary duty, which request relief which is legal in nature. DEBTOR/ CREDITOR — D’OENCH, DHUME DOCTRINE 15-7-8647 Jupiter Development Corp. v. Federal Deposit Ins. Corp., etc., U.S. Dist. Ct. (21 pp.) (1) Since the court is aware of no case which applies the D’Oench, Dhume doctrine to bar a claim by a plaintiff based on a bond reflecting a liability, as opposed to an asset, of a failed bank — where the receiver defends by arguing that the underlying liability reflected in the bond is based on an alleged oral agreement — the court denies, without prejudice, the FDIC’s motion for summary judgment based on the D’Oench Dhume doctrine seeking to dismiss plaintiff’s complaint for monies owed under a bond posted with the FDIC’s failed bank, however (2) the court grants the FDIC’s motion insofar as it seeks to dismiss plaintiff’s claims for a general contractor’s fee and attorney’s fees. 15-7-8648 Network Technology Solutions, et al. v. Gene Belsole, et al., U.S. Dist. Ct. (9 pp.) Since creditor has failed to present any evidence that bank had knowledge of, or involvement with, any of the illegal enterprises characterized in creditor’s complaint against debtor and bank, or that bank made any misrepresentations to creditor or any representative of debtor, summary judgment dismissing conspiracy allegations against bank is appropriate. TAXATION — JEOPARDY ASSESSMENTS 35-7-8649 Reinhard Wolckenhauer v. U.S.A., U.S. Dist. Ct. (16 pp.) The I.R.S. reasonably made a “jeopardy assessment” — to expedite its collection of delinquent taxes against the taxpayer — since, after learning of the government’s investigation into his affairs, the taxpayer substantially mortgaged previously unencumbered properties, made loans to his corporations and proposed the liquidation of his pension, all of which appeared to jeopardize the government’s ability to collect the taxes. Additional Opinion Approved for Publication: 20-2-7925 James Moss v. Anne C. Nedas, etc. [Decided Feb. 20, 1996.] Vol.4 No.74 – April 19, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-1-8650 In the Matter of John L. Downer, Jr., an Attorney at Law, Sup. Ct. (24 pp. incl. dissent and opinion below.) The report of the Disciplinary Review Board is adopted and John L. Downer, Jr., is disbarred for the knowing misappropriation of escrow and trust account funds entrusted to him with respect to his failure to remit title insurance premiums and his misuse of client funds from a real estate closing matter. (Dissent by O’Hern, J.) CONSUMER PROTECTION 09-2-8651 Lemelledo v. Beneficial Management Corp. of America, et al, App. Div. (16 pp.) Where plaintiff alleged that defendant, a financial services company specializing in consumer loans, engaged in “loan packing” (the practice of selling credit insurance policies along with consumer loans through the use of deceptive or coercive marketing practices), the court held: (1) defendant is not exempt from the Consumer Fraud Act on the ground that it is highly regulated by the Department of Insurance and the Department of Banking, (2) defendant is not an insurance company and, therefore, it is not exempt from the Consumer Fraud Act, (3) the Consumer Fraud Act applies to the advertisement, sale and making of loans, and (4) the commissions earned by defendant on its sale of credit insurance are not interest for the purpose of New Jersey’s usury laws. [Approved for publication April 19, 1996.] CORRECTIONS 13-2-8652 Wakefield v. Pinchak, App. Div. (9 pp.)The determination by the Department of Corrections, that appellant, an inmate who sometimes functions as a “counsel-substitute” for other inmates, violated two disciplinary offenses based on allegations that he forged another inmates’ signature on two court documents, must be set aside because he had insufficient access to the proofs against him and, therefore, had no adequate opportunity to defend himself. [Approved for publication April 19, 1996.] ENVIRONMENT – UTILITIES 17-2-8653 In the Matter of the Petition of Bridgewater Resources, Inc. App. Div. (11 pp.) The DEP’s estimate of gross revenue for petitioner’s solid waste transfer station is flawed because it is based on a categorization of types of waste that is inconsistent with the categories established by the agency’s regulations, resulting in some customers being charged different rates for the same type of waste depending on which landfill the waste is sent to. FAMILY LAW 20-2-8654 Moss v. Nedas, App. Div. (11 pp.) Where plaintiff was not advised of his daughter’s decision to transfer from one college to another, despite plaintiff’s numerous requests to be involved in his daughters’ education and in contradiction of the court’s order, which specifically provided that plaintiff shall not be responsible for any further college costs unless compliance with the order is met, the trial judge did not abuse her discretion in eliminating plaintiff’s obligation to pay his share of his daughter’s tuition. [Approved for publication April 19, 1996.] FAMILY LAW 20-2-8655 Goettinger v. Goettinger, App. Div. (39 pp.) The trial judge’s finding that defendant had voluntarily changed his employment status was based on substantial credible evidence.(2) Since the increase in the value of defendant’s inherited asset had resulted in large part from his own time and effort, the trial judge erred in considering the asset as being subject to equitable distribution; however, the trial judge did not err in concluding that defendant was responsible for reimbursing the marital estate for money spent on himself for ordinary living expenses since the value of the marital estate was diminished because of defendant’s actions in voluntarily withdrawing from his job and spending most of his time managing his inheritance. (3) For the purpose of fixing alimony, the trial judge did not err in imputing income to defendant based on his last year of full-time employment prior to his decision to live off of the earnings of his inheritance. (4)since plaintiff can work part- time and has received substantial equitable distribution, unlike the situation presented in Jacobitti v. Jacobitti, the trial court should reconsider its requirement that defendant secure a life insurance policy for $500,000 for plaintiff’s benefit. FAMILY LAW – CRIMINAL LAW AND PROCEDURE 20-2-8656 State v. Bynes, App. Div.(8 pp.) Where an in-house restraining order was entered permitting the mother of defendant’s child to live in defendant’s house, the changing of the locks by defendant could reasonably be intended and understood as a threat constituting criminal harassment. NEGLIGENCE 31-2-8657 Taylor v. Montclair Community Hospital, et al, App. Div. (4 pp.) Where plaintiff experienced a burn injury when an unused instrument that was plugged into a generator which ran electrical current into all instruments whenever any single instrument was being used was placed upon a drape covering plaintiff’s body, the trial court erred in holding that plaintiff was required to produce an expert opinion on the design and operation of the devices that were being used; in this common knowledge res ipsa loquitur case, plaintiff is entitled to the benefit of the shift in the burden of producing evidence established in Anderson v. Somberg. PRODUCT LIABILITY 32-2-8658 Menaquale v. AC&S, Inc., et al., App. Div. (9 pp.)(1) Judgment n.o.v. was improperly granted in this asbestos exposure case where there was sufficient circumstantial evidence of exposure to the product Kaylo and the evidence met the standard set forth in Sholtis v. American Cyanamid Co. (2) Proof that decedent helped his father with household maintenance work and give him financial advice, together with the inference that decedent would have provided care for his aged parents, was sufficient to support the $75,000 wrongful death award, and the judge erred in granting remittitur. PUBLIC EMPLOYEES 33-2-8659 Brady v. Department of Personnel, App. Div. (11 pp.) Procedural fairness requires that a person who is entitled to appeal from the grade awarded him or her on a written civil service examination must be furnished with a copy of the questions and of his or her answers, and the Department of Personnel must provide a sufficient explanation for its grading decisions to enable a reviewing court to determine whether the agency’s decisions have a reasonable basis. Giving petitioner an hour to review a synopsis of the examination questions, his answers and cryptic comments from the grader was not much better than withholding all of the evidence on which the grading decision was based. [Approved for publication April 19, 1996.] PUBLIC EMPLOYEES 33-2-8660 Garcia v. City of Union City, App. Div. (8 pp.)The same policy considerations that led the Supreme Court in Abbamont v. Piscataway Bd. of Educ. to conclude that punitive damages are appropriate against public employees for claims under the Conscientious Employee Protection Act are applicable to claims brought against public employers under the Law Against Discrimination. FEDERAL COURT CASES EDUCATION 16-7-8661 Fuliniti, et al v. Roxbury Township Public Schools, et al, U.S. Dist. Ct. (15 pp.) The need of a full-time attendant to monitor a child’s tracheostomy tube and provide suctioning are medical services which a local school board is not required to provide under the Individuals with Disabilities Education Act. [For publication, filed April 17, 1996.]

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