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Vol. 4 No. 72 – April 16, 1996 STATE COURT CASES ATTORNEY/CLIENT — FEES 04-2-8608 Tompkins, McGuire & Wachenfeld, etc. v. Nick E. Dedes, et al., App. Div. (20 pp.) Where defendant in law firm’s suit for fees failed to proffer evidence to contradict an expert’s opinion that the fees were reasonable, judge properly granted judgment for plaintiff at the close of its case; however the matter is remanded for a possible recomputation of the off-set allowed defendant for adjournments attributable to the law firm. CONTRACTS — CEMETERIES 11-2-8609 Randall R. Knowles, et al. v. Rodef Sholom Cemeteries Assn., etc., App. Div. (3 pp.) Where covenants in cemetery deed clearly and unequivocally restricted burial to members of the Jewish faith, the covenants were enforceable despite plaintiffs’ assertion that the restriction had not been universally applied, and judge therefore properly dismissed complaint to seeking to compel cemetery to allow plaintiffs’ Catholic father to be buried with their Jewish mother. FAMILY LAW 20-2-8610 Dean W. Stevens v. Nancy Stevens, etc., App. Div. (6 pp.) Where the motion judge found that an agreement of the parties at the time of their divorce implicitly provided that their son would attend school in the district where defendant resided, he correctly denied plaintiff’s motion to transfer the child to the school district in which he resided. INSURANCE — VERBAL THRESHOLD 23-2-8611 William Dalambert v. Marion Canty, et al., App. Div. (5 pp.) The objective medical requirement of the verbal threshold was met by plaintiff’s testimony of continued pain and reduction of range of motion, confirmed by the constant presence of spasm and apparent disc involvement revealed in an MRI; and since there is proof that plaintiff’s lifestyle has changed as a result, albeit marginally, the court reverses summary judgment entered for the defense. 23-2-8612 Maria Gonzalez v. Denise M. Martin, App. Div. (4 pp.) Summary judgment for the defendant is reversed where (1) there was insufficient evidence from which to conclude that plaintiff and the registered owner of the vehicle are “immediate family members” and thus subject to the verbal threshold and (2) there were ownership issues and other novel factual issues respecting the circumstances under which a non-legal owner of a vehicle may be deemed subject to the threshold elected by the registered owner. NEGLIGENCE — COUNSEL FEES — NON – PARTIES 31-2-8613 Elizabeth Murray, et al. v. Deptford 87 Associates, et al. v. Underwood Memorial Hospital, App. Div. (4 pp.) It was an abuse of discretion to assess counsel fees against defense counsel in a personal-injury action for trying to obtain hospital records from a non-party hospital, since this does not rise to the level of conduct required to trigger the court’s sanctioning powers. PUBLIC EMPLOYEES — UNION REPRESENTATION — CON. LAW 33-2-8614 In the Matter of the Div. of Criminal Justice State Investigators, App. Div. (24 pp.) Since the applicable statute, N.J.S.A. 52:17B-100(b), classifies investigators of the state Division of Criminal Justice as “confidential” for the purposes of the State Employer-Employee Relations Act, thereby relieving the employer/respondent of any duty to engage in collective negotiation with them, petition for representation was properly dismissed. [Approved for publication Apr. 16, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-8615 State v. Lionel Lewis, App. Div. (3 pp.) Defendant’s conviction is reversed since the judge erred in his instructions to the jury on the use of fresh complaint testimony. CRIMINAL LAW AND PROCEDURE — JUVENILES — PLEAS 14-2-8616 State v. In the Interest of D.S., D.Z. and F.C., App. Div. (16 pp.) Trial judge in juvenile proceedings had the discretion to determine whether to grant any future application for reduction in disposition terms, was not bound by the State’s recommendations, and did not abuse his discretion in denying the reductions sought by the State in furtherance of a plea agreements. [Approved for publication Apr. 16, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-7-8617 Laurance Lowenschuss, etc. v. Resorts Intl., Inc., U.S. Dist. Ct. (39 pp.) Although plaintiff’s claims for relief are not core proceedings, they are related to the defendant’s bankruptcy pursuant to Section 157(c)(1) in that they arose out of that proceeding, or concern issues involved in the adversary proceeding, and will potentially have some effect on the bankruptcy estate, such as altering the debtor’s rights, liabilities, options or freedom of action. [For publication.] CONTRACTS — REMAND AND TRANSFER 11-7-8618 Telesis Mergers & Acquisitions, Inc. v. Atlis Federal Svcs., Inc., et al., U.S. Dist. Ct. (35 pp.) In breach of contract suit for commissions allegedly due for sale of nursing staffing business, (1) plaintiff’s motion to remand the complaint to state court is denied since the notice of removal indicates that the complaint was timely removed, and that it complied in all respects with the procedural requirements of 28 U.S.C. 1446(a), but (2) since plaintiff has failed to establish the “purposeful availment” or minimum contacts requirements necessary for the maintenance of in personam jurisdiction over the defendants in N.J., and the court is faced with the choice of dismissing the action for lack of jurisdiction or transferring the case, defendants’ motion to transfer the matter to Maryland federal district court is granted. [For publication.] CORRECTIONS — CIVIL RIGHTS 13-7-8619 Marcos Alicea v. N.J. Dept. of Corrections, et al., U.S. Dist. Ct. (4 pp.) Inmate’s claim that he contracted hepatitis due to defendants’ negligence is dismissed, since claim could only succeed if he alleged that defendants committed acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs, which he has not done. INTELLECTUAL PROPERTY 53-7-8620 Alpine Lace Brands, Inc. v. Kraft Foods, Inc., etc., et al., U.S. Dist. Ct. (16 pp.) (1) Since the court determines that no reasonable fact-finder could find that defendant Kraft’s process of manufacturing low-fat cheese products infringed on plaintiff’s patent under either literal infringement or the Doctrine of Equivalents, defendant Kraft’s motion for summary judgment on the issue of infringement is granted. (2) Plaintiff’s motion to certify for an interlocutory appeal the order interpreting and narrowing the scope of its patent is denied. INTELLECTUAL PROPERTY — PRELIMINARY INJUNCTIONS 53-7-8621 Glebar Co., Inc. v. Royal Master Grinders, Inc., U.S. Dist. Ct. (11 pp.) Court denies plaintiff’s requested injunction against defendant’s selling allegedly infringing machines during the pendency of this patent infringement action because (1) the facts indicate that plaintiff is not likely to succeed on the merits, (2) the court can only speculate as to whether plaintiff is currently incurring any injury, and (3) since plaintiff and defendant are the only two manufacturers of the subject machines, defendant’s sales and profits from any infringing machines can be readily ascertained and employed in calculating money damages — an adequate remedy for plaintiff. Additional Opinion Approved for Publication: 17-2-6037 George H. Sands, et al. v. Cigna Property and Casualty Ins. Co., etc., et al. [Decided June 30, 1995 and approved for publication Apr. 15, 1996.]

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