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Vol. 4 No. 71 – APRIL 15, 1996 STATE COURT CASES CONTRACTS — FRANCHISES 11-2-8582 Pro Line Boats v. Atlantic Yacht Sales, Inc., App. Div. (11 pp.) The judge correctly found that the contract between the parties simply permitted defendant to sell plaintiff’s products on a non-exclusive basis, and that there was no franchise created by the contract. FAMILY LAW 20-2-8583 Carolina Fraraccio v. Joseph M. Fraraccio, App. Div. (3 pp.) Since there is no evidence that the parties or the court were impeded in their review of the financial aspects of the case by the absence of Case Information Statements, the order compelling 50 percent contribution by defendant for health insurance does not constitute an abuse of discretion. 20-2-8584 Lorraine Hanas v. Robert E. Hanas, App. Div. (13 pp.) Order compelling father to pay three-quarters of the son’s college expenses, child support and part of wife’s counsel fee is reversed, since the trial judge failed to make findings essential to determining defendant’s required contributions, such as addressing the son’s relationship with the father, the son’s income, the reasonableness of the time the son took off between high school and college, and whether the parties, given their educational and social background, would have expected the son to attend college at their expense had they stayed married. LABOR AND EMPLOYMENT 25-2-8585 Rutgers Council of AAUP Chapters v. Rutgers, The State University, App. Div. (8 pp.) The judge correctly dismissed the first count of plaintiff’s complaint alleging errors in reevaluation of failure-to-promote grievances, determining that the Permanent Referee did not exceed her authority under the applicable collective negotiating agreement, and that faculty members had not exhausted their administrative remedies. LANDLORD/TENANT 27-2-8586 George Durman v. Joanne Albarelli, et al., App. Div. (7 pp.) Notice given by tenant to landlord — that tenant was leaving the apartment but that his daughter would continue to reside there — was equivocal on its face and ambiguous to the landlord, and the trial judge erred in holding such notice was adequate under the lease and the award of double the withheld security deposit is reversed. LAND USE 26-2-8587 Daniel Tauben v. Zoning Bd. of Adjustment of the Borough of Midland Park, et al., App. Div. (4 pp.) Zoning Board’s decision to grant sign variance is affirmed, since the sign would not create a substantial detriment to the public good, would enhance safety, and would alleviate hardship to the shop owner. 26-2-8588 Donna Gibson Fink v. Sea Isle City Zoning Bd., etc., et al., App. Div. (3 pp.) The record adequately established that prior occupant of the subject space had operated a retail store and that the seasonal swimsuit store operated by current occupant was not an impermissible enlargement or intensification of the prior retail use. MUNICIPAL LAW — RENT CONTROL 30-2-8589 Carlyle Towers v. Twp. of the Borough of Caldwell, et al., App. Div. (2 pp.) Judge correctly determined that extensive structural steel work performed on an apartment parking garage was a major capital improvement, not a repair or replacement, and reversed the decision of the Rent Board, which had refused to recognize the work as a major capital improvement. NEGLIGENCE 31-2-8590 Charles E. Bunnel, Jr., et al. v. Delaware Valley Container, App. Div. (4 pp.) Since defendant’s driver was not negligent or in any serious danger while loading and unloading drums, plaintiff was merely a volunteer when he jumped off his forklift to help the driver with a drum; and the judge correctly dismissed plaintiff’s claim for injuries allegedly sustained in rolling the drum, finding that there was no duty violated by the defendant. TORTS — ASSAULT — WRIT OF ATTACHMENT 36-2-8591 In the Matter of K.W., et al. v. Clifford Zernik, App. Div. (6 pp.) Because the record does not support a conclusion that defendant’s conduct — in allegedly sexually assaulting one child in the presence of another — constitutes an outrageous battery, the issuance of a pre-judgment writ of attachment on defendant’s real property was improper and is reversed. CRIMINAL LAW AND PROCEDURE 14-2-8592 State v. Blaine Holmes, App. Div. (17 pp.) Defendant did not receive a fair trial because of his counsel’s failure to impeach the two principal witnesses against him, and to intervene when the prosecutor raised the issue of defendant’s pre-arrest silence before the jury, and a new trial is required. FEDERAL COURT CASES BANKRUPTCY — MANDATORY ABSTENTION 42-7-8593 Donington, Karcher, et al., Debtor; William M. Burke, M.D., etc. v. Donington, Karcher, et al.; United Jersey Bank, etc. v. Karcher, Salmond, et al., U.S. Dist. Ct. (23 pp.) Doctor/lender’s claims against defunct law firm involving attorney malpractice and negligence, and joining bank in action to obtain a determination of the rights of doctor/lender and bank with respect to the law firm’s receivables, involve only “garden variety” state law contract and tort claims, and are not against the bankruptcy estate; and bank’s third party claims do not seek recovery from the debtor, but only from debtor’s individual shareholders under state law, therefore the court must abstain and grants the motions of both doctor/lender and bank to remand their claims to state court, with execution on any judgment obtained there to await the outcome of the bankruptcy proceeding. CIVIL RIGHTS — AMERICANS WITH DISABILITIES ACT (A.D.A.) 46-7-8594 The Medical Society of N.J. v. Fred V. Jacobs, et al., U.S. Dist. Ct. (35 pp.) In plaintiff’s challenge to the decision of the defendant State Board of Medical Examiners to shift the costs of a judgment entered in favor of plaintiff in prior A.D.A. litigation to N.J. physicians through an assessment against the current Board budget and an increase in license renewal fees, although the court has serious doubts that the plaintiff can satisfy its burden at trial of demonstrating that the cost-shifting decision was in retaliation for the prior A.D.A. litigation, plaintiff has established a prima facie case, and because there is a genuine issue fact regarding whether any discrimination took place, defendant Boards’ motion for summary judgment is denied; however, the individual defendants are entitled to qualified immunity barring plaintiff’s claim for damages against them. CIVIL RIGHTS — APPOINTMENT OF COUNSEL 46-7-8595 Gary M. Alston v. William Parker, et al., U.S. Dist. Ct. (7 pp.) Inmate, who was involuntarily committed to a psychiatric facility three days before he was due to be released after seventeen years of incarceration, is granted appointment of counsel, since his impaired mental condition mandates a greater need for legal assistance than usual, and, although he has not necessarily shown that he will prevail on the merits of his claims, he has set forth a sufficiently colorable claim, indulgently viewed as a pro se filing, to cross the threshold for appointment of counsel. CIVIL RIGHTS — MUNICIPAL LAW 46-7-8596 The National Association for the Advancement of Colored People, et al. v. The Twp. of North Bergen, N.J., U.S. Dist. Ct. (20 pp.) The court finds that the defendant township’s residency requirement for municipal employment disparately impacts African- Americans in violation of Title VII of the Civil Rights Act of 1964, and plaintiffs are granted summary judgment permanently enjoining the township from using those requirements. CONTRACTS — TRANSFER OF VENUE 11-7-8597 Aesthetica Design Group, Inc. v. Masco Home Furnishings, Inc., U.S. Dist. Ct. (6 pp.) Since neither the plaintiff nor the primary defendant resides in New Jersey, the substantial parts of the events giving rise to this action took place in North Carolina where defendant resides, most of the relevant records and witnesses are located in North Carolina, and North Carolina has a more significant local interest in this litigation, defendant’s motion to transfer this action to North Carolina is granted. CORRECTIONS 13-7-8598 Bernard S. Reid v. State of New Jersey, et al., U.S. Dist. Ct. (4 pp.) In granting defendants’ summary judgment on inmate’s claim — that he was denied due process when prison officials transferred him to a new cell — the court considered plaintiff’s affidavit and his argument that the housing change was improper because it was not done by the classification committee as required by N.J.A.C. 10A:9-3.1(a)5, and since the court determined that the cited code section permits prison officials to make those changes necessary where a genuine concern is raised about the safety of an inmate, and inmate has not cited any other evidence that the court failed to consider, inmate’s motion for reconsideration is denied. DEBTOR/CREDITOR — ENTIRE CONTROVERSY 15-7-8599 Randall Marine v. Capital Collection Service, U.S. Dist. Ct. (6 pp.) Plaintiff’s federal claim against hospital’s collection agency is barred by the entire controversy doctrine, since plaintiff’s claims should have been brought in prior state litigation wherein hospital obtained judgment against plaintiff for the debt. FAIR HOUSING 41-7-8600 Mary Ford, et al. v. Brooks-Sloate Terrace Cooperative Assn., Inc., et al., U.S. Dist. Ct. (17 pp.) Where plaintiffs have shown that they were qualified to purchase a cooperative unit, and defendants offer, as justification for their action in denying plaintiffs the unit, a category system under the bylaws, the court finds that the effect of the Board’s actions, even if unintentional, was to discriminate against plaintiffs because of their handicapped son and the accommodations he requires, and, as such actions violate the Fair Housing Act, plaintiffs’ motion for preliminary injunction is granted insofar as it continues voluntary restraints against alienation of the unit which are now in place under a consent order. INSURANCE — EXCLUSIONS — RULE 11 SANCTIONS 23-7-8601 NL Industries, Inc. v. Commercial Union Ins. Co., et al. v. Certain Underwriters at Lloyd’s, et al., U.S. Dist. Ct. (6 pp.) Insurer defendants’ motion for Rule 11 sanctions –made after successfully moving for summary judgment in environmental coverage action — is denied, since, although they argue that plaintiff and its counsel acted in bad faith commencing this litigation despite the “unquestionable applicability” of policies’ pollution exclusions, the court finds that the plaintiff’s claims that the exclusions were ambiguous cannot be said to have been “patently unmeritorious or frivolous.” JURISDICTION — EMPLOYMENT 24-7-8602 Robert K. Lewis v. Finnco Corp., et al., U.S. Dist. Ct. (6 pp.) In a case where plaintiff alleges negligent misrepresentation, breach of contract and fraud in the inducement against his former employers, company’s motion for dismissal — on the ground that it is not and never has been a legal entity subject to suit — is granted, however motions of the two individual defendants are denied, since they offered plaintiff a job in New Jersey, made frequent visits here on company business, made phone calls and sent faxes to plaintiff in New Jersey to recruit him for employment, and visited him in New Jersey regarding such employment, all of which combine to support jurisdiction over the individual defendants. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-8603 Stephen Kapossy v. McGraw, Inc., U.S. Dist. Ct. (35 pp.) (1) Summary judgment is granted dismissing plaintiff’s “failure to hire” claim, since he has failed to show the existence of any genuine issue of material fact over his allegation that he was unqualified for the position only because his employer engaged in “preferential training” programs. (2) Summary judgment is denied on the “reduction in force” termination claim, since plaintiff was the only employee affected by the RIF, and, although the employer indicates that there was a legitimate business reason for the RIF, there are inconsistencies and unresolved factual disputes that preclude entry of summary judgment on this claim. (3) Summary judgment is denied on the Woolley employment manual/contract issue, inter alia, since the disclaimers in the manual were not conspicuous, and although plaintiff cannot claim that he could have expected to displace one of the other employees once he was terminated from his position, he has raised a factual issue as to whether the manual could reasonably have led him to believe that he could have expected to receive training in other areas prior to his dismissal. [For publication.] LABOR AND EMPLOYMENT — APPOINTMENT OF COUNSEL 13-7-8604 Daniel McInnis, Pro Se v. Kern Foam Products, U.S. Dist. Ct. (3 pp.) Since the court did not overlook any facts or legal arguments in finding that plaintiff’s complaint failed to set forth a claim of employment discrimination that has arguable merit in fact and law, and since plaintiff’s submissions reveal him to be literate and capable of representing his own interests in this non-complex case, the court denies plaintiff’s motion for reconsideration of the denial of his request for appointment of counsel. LABOR AND EMPLOYMENT — C.E.P.A. — COUNSEL FEES 25-7-8605 Dean Mulligan v. Delicato Vineyards, U.S. Dist. Ct. (5 pp.) When plaintiff signed a termination agreement to receive a more fruitful severance package, he relinquished his right to pursue a C.E.P.A. claim, and, accordingly, as the benefit of its bargain with the plaintiff, defendant is entitled to its costs and attorney’s fees for having to defend against the C.E.P.A. complaint which plaintiff brought in violation of the agreement. LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-8606 F. Carol Price v. Postmaster General of the U.S., etc., et al., U.S. Dist. Ct. (16 pp.) The court denies plaintiff’s motion to amend the final pretrial order to present additional expert testimony regarding analysis of the discipline imposed upon employees of the postal service, since such testimony will not aid the trier of fact in determining whether or not defendants engaged in conduct amounting to sexual harassment and retaliation with respect to plaintiff. NEGLIGENCE — CRUISE SHIPS 31-7-8607 Raida Abdallah v. Carnival Cruise Lines, et al., U.S. Dist. Ct. (13 pp.) Under applicable federal maritime law governing plaintiff’s cause of action for injuries sustained on defendant’s ship, the court finds that (1) plaintiff’s ticket reasonably communicated that the passenger’s legal rights were affected by the ticket’s contractual terms and limitations, and the action is, therefore time-barred under the terms of the ticket; and (2) there is no merit in plaintiff’s argument that the conduct of defendant’s insurance claims representative — in negotiating the claim with her attorney — somehow estops the defendant from invoking the limitations period, since nothing in the negotiations reasonably could have induced plaintiff to forestall litigation, as defendant continually reserved its rights during negotiation.

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