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Vol. 4 No. 69- APRIL 11, 1996 STATE COURT CASES CONDEMNATION 44-2-8547 Jersey City Redev.Agency, etc., et al. v. Clean-O-Mat Corp., etc., et al., App. Div. (27 pp.) Although defendant’s evidence regarding reproduction cost and bringing its building up to code was unsound in part, the trial judge did not err in admitting it, since the plaintiff’s experts described the concept of functional obsolescence in considerable detail, and a limiting instruction satisfactory to the plaintiff eliminated the chance for prejudice from the deficiencies. [Approved for publication Apr. 11, 1996.] FAMILY LAW 20-4-8548 William J. Ridley v Joanne Ridley, Chancery Div. (12 pp.) In a case where father has sought “time and time again” to visit with his children, which has been denied by the mother despite numerous court orders, the court finds that neither the incarceration of the mother, nor the father’s cessation of child support would be appropriate remedies, but instead orders appointment of a guardian ad litem for the children at the motehr’s sole expense, to work toward re-establishment of a relationship between the father and the children, and to monitor the strict guidelines imposed upon the mother to encourage the re-establishment of such a relationship. Mother also must pay father’s counsel fees. [Approved for publication Apr. 9, 1996.] INSURANCE — P.I.P. — ARBITRATION 23-2-8549 State Farm Mut. Auto. Ins. Co. v. Linda Molino, etc., App. Div. (7 pp.) The Law Division judge properly concluded that the insurance company’s refusal to pay defendant extended income continuation and essential services benefits — when her husband, a pedestrian, was killed in an automobile accident — created a “dispute” that triggered defendant’s right to demand binding arbitration under the P.I.P. statute. [Approved for publication Apr. 11, 1996.] LABOR AND EMPLOYMENT — C.E.P.A. 25-2-8550 James G. Keelan v. Bell Communications Research, App. Div. (22 pp.) The one-year limitations period under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 commenced when plaintiff’s employment was terminated, not, as the motion judge held, from the time he was notified of his impending termination, and, therefore, plaintiff’s complaint was timely filed. Since there were material issues in dispute as to the voluntariness of the release plaintiff signed, summary judgment for the employer is reversed. [Approved for publication Apr. 11, 1996.] LAND USE 26-2-8551 Sterling Sec. Corp. v. Twp. Committee of Bedminster Twp., et al., App. Div. (6 pp.) Placement of plaintiff’s property in an R-2 residential zone was not arbitrary, capricious or unreasonable, and the trial judge did not err in failing to resolve the issue of whether a 1982 Master Plan’s recommendation that the property be zoned residential was based on a mapping error, since the current Master Plan was prepared with knowledge of the zoning history and current use of the property, and any error in a 1982 map has no consequence on the current ordinance’s propriety. NEGLIGENCE 31-2-8552 Maryann Powell v. Debra A. McClellan, et al., App. Div. (10 pp.) Although the facts present a legitimate inference of municipality’s constructive knowledge that a stop sign might become obstructed by foliage, and the trial judge erred in finding otherwise, the entry of summary judgment for the municipality is affirmed, since the judge’s finding that plaintiff had failed to prove proximate cause is valid. PHYSICIAN/PATIENT 29-2-8553 Bruce L. Jones, etc., et al. v. Merra Kanhouwa, M.D., et al., App. Div. (11 pp.) The trial court mistakenly exercised its discretion by permitting doctor’s counsel to cross-examine plaintiff’s expert witness based on a publication that had not been identified by the doctor during discovery, and the judge further erred in allowing the entire publication into evidence. PRODUCT LIABILITY 32-2-8554 Dolores Gurrieri v. William Zinsser & Co. Inc., etc., App. Div. (18 pp.) Since the record is unclear whether the Federal Hazardous Substance Act, 15 U.S.C.A. 1261-1277, applies to the labeling of defendant’s “primer/sealer/stain killer,” and, if it applies, to what extent, summary judgment in defendant’s favor on the issue of federal preemption is reversed. REAL ESTATE — FORECLOSURE 34-2-8555 Ethicon Employees Fed. Credit Union v. Erma Morings, et al., App. Div. (3 pp.) Where defendant did not contest entry of final foreclosure judgment, nor challenge any irregularities in the sheriff’s sale proceedings, her motion to vacate the sale — claiming fault by a third party she hired to prevent the sale by filing a bankruptcy petition — is without merit. REAL ESTATE — RECISSION 34-2-8556 Alfred B. Schiavetti Jr., et al. v. Ethel Schwartz, et al., App. Div. (3 pp.) Contract buyers failed to establish a basis for recission with the mere discovery of 11-to-17 year old ureaformaldehyde foam insulation in the structure without subsequently testing for the presence of formaldehyde gas in the house. FEDERAL COURT CASES ATTORNEYS — FEES — INTERVENTION 04-7-8557 Matthew Hahne v. Ziolkowski, et al., U.S. Dist. Ct. (4 pp.) The motion of plaintiff’s former attorney seeking to protect his fee by intervening in plaintiff’s civil rights action is denied, since his claim does not present common questions of fact or law with the main action, and there is no indication that the attorney will not receive his fee should plaintiff prevail at trial or receive a monetary settlement. CONTRACTS — TELECOMMUNICATIONS 11-7-8558 On-Line Marketing Sys. Inc. v. ICE Communications Enters. Inc., U.S. Dist. Ct. (9 pp.) (1) Given the unambiguous language of a 1995 agreement between joint-venture parties, it is clear that the intent was to release each other from their respective obligations under a 1992 agreement, except those relating to one particular contract; therefore those counts of defendant’s counterclaim seeking monies owed under the 1992 agreement are dismissed. (2) Although the fiduciary duty between joint venturers frequently ends with the termination of the joint- venture agreement, the parties did not end their relationship immediately or completely by their subsequent agreement, and, since there was still some fiduciary duty owed at the time the alleged breach occurred, summary judgment cannot be granted on this count. (3) Summary judgment is granted on count of counterclaim alleging common law fraud for failure of defendant to plead with the specificity required by the rules. CORRECTIONS 13-7-8559 Peter G. Repoli v. N.J. Dep’t of Corrections, et al., U.S. Dist. Ct. (6 pp.) Inmate’s motion to reopen his civil rights case for defendants’ alleged breach of a settlement agreement is denied, since such a claim does not constitute cause to set a judgment of dismissal aside, although it may give rise to a state cause of action to enforce the agreement. EDUCATION — DISABILITIES — PRIVATE SCHOOLS 16-7-8560 Yakov Karasick, etc., et al. v. Teaneck Bd. of Educ., U.S. Dist. Ct. (24 pp.) Because disabled students’ parents unilaterally chose to place them in a private school, rejecting an available free appropriate public education, public school board is not required to pay for students’ education at the private school, nor the costs of any services related to such private education, including transportation. INSURANCE — ATTORNEYS — MISREPRESENTATIONS 23-7-8561 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (6 pp.) In an insurance reformation action arising out of a partnership dispute, where plaintiff alleges that his attorney was involved in the alleged conspiracy against him, and the attorney’s professional liability insurance carrier seeks to reform the attorney’s liability policy because of material misrepresentations made by the attorney, plaintiffs’ motion in limine to exclude the insurance carrier’s exhibits is denied, since those exhibits are relevant to determine whether the attorney made a material misrepresentation on the insurance renewal application regarding the existence of potential claims against him and his firm. INTELLECTUAL PROPERTY — JURY TRIALS 53-7-8562 Hoechst Marion Roussel Inc. v. Par Pharmaceutical Inc., U.S. Dist. Ct. (8 pp.) In a patent infringement action, defendant is entitled to a jury trial on its counterclaim for declaratory judgment of patent invalidity and noninfringement.

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