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Vol. 4 No. 70- APRIL 12, 1996 STATE COURT CASES ATTORNEYS — DISCIPLINE 04-1-8563 In the Matter of Olivia C. Howard, An Attorney at Law, Supreme Ct. (13 pp.) The Disciplinary Review Board erred in concluding that attorney’s conviction of death by auto did not merit discipline because it did not relate to the practice of law and did not adversely reflect on her honesty, trustworthiness or fitness as a lawyer, and the court holds that a three-month suspension from the practice of law is warranted, since the conviction is for a criminal homicide that entails recklessness and a gross deviation from reasonable conduct. CIVIL PROCEDURE — RESTORING DEFAULT JUDGMENT 07-2-8564 Lambert & Weiss, etc. v. Paul J. Bonfiglio, et al., App. Div. (3 pp.) Where judge vacated default judgment based on defendants’ allegations that they had not received timely notice of suit because they had moved, and the order conditioned the the judgment’s removal on defendants giving plaintiffs their proper address for service, which they failed to do, restoration of the default judgment was proper. CORPORATIONS — FOREIGN CORPORATIONS 12-2-8565 Family Fidelity Ins. Ltd. v. Tobia Korkala and Co., Inc., et al.; Tobia Korkala and Co., Inc., et al. v. James Corrado, etc., App. Div. (4 pp.) Even though the trial judge may have mistakenly granted summary judgment to debtor-defendants on plaintiff-lender’s complaint for monies owed on loans by finding that lender was only a “sham” insurance company — and, in actuality, operated as a general business corporation subject to the requirements of the Corporation Business Activities Reporting Act, with which it did not comply — summary judgment was improper in any event, since the plaintiff-lender subsequently obtained an adequate certification of compliance, and its earlier noncompliance was reasonable since it was relying on its asserted status as an exempt insurance company. DEBTOR/CREDITOR — SALE OF BUSINESS 15-2-8566 Thomas F. Salley, et al. v. Donald Porcaro, et al., App. Div. (4 pp.) Record supports judge’s findings that sellers of travel agency business did not misrepresent the business’s volume to purchasers, and that when purchasers defaulted on their loan payments to sellers, sellers were under no obligation to mitigate their damages by releasing their U.C.C. lien so that purchasers could re-sell the business. FAMILY LAW 20-2-8567 Mary C. McCarthy v. John B. McCarthy, et al., App. Div. (11 pp.) Family Part judge correctly found that defendant had the financial wherewithal to continue his alimony payments, notwithstanding his job termination, since the judge made a finding that defendant had sufficient actual or imputed income from his new wife’s business, or other sources, to pay the alimony, but matter is remanded for further consideration on the issue of retroactive relief for another time period when defendant and his new wife were starting her business; remand also is required for the judge to reconsider plaintiff’s claim that her obligation to pay capital gains taxes on the marital home was a consequence of defendant’s willful failure to make timely alimony payments. 20-2-8568 Jeffrey Muller v. Kathleen Muller, etc., App. Div. (5 pp.) There was ample support in the record for the judge’s finding that wife’s IRA, although largely acquired by her before the marriage, was a security included in the distributive scheme of equitable distribution as agreed to by the parties, and he properly rejected wife’s post-divorce claim that the asset should be exempt from distribution, finding that she had, in effect, chosen to “gift” it. 20-2-8569 Sussex County Bd. of Social Servs., et al. v. William Epperly, App. Div. (7 pp.) Where court had previously denied ex-husband’s challenge to order mandating that he reimburse plaintiff for public assistance provided to his ex-wife because of his failure to pay support, but where the court stayed execution of the order pending the ex-husband’s receipt of his ex-wife’s welfare records — to allegedly prove that she was not entitled to such payments — ex-husband’s renewed challenge to the order must be denied, since he has produced no evidence from the welfare records to back up his claim. INSURANCE — VERBAL THRESHOLD 23-2-8570 Donna Jorgensen v. Mary Jo Zisko, App. Div. (5 pp.) Summary judgment was properly granted to defendant on plaintiff’s type 9 verbal threshold action, since she failed to show objective proof of injury beyond an initial physical examination and since she failed to delineate her thwarted daily and customary activities, and plaintiff’s contention that a type 9 injury requires a lesser quantum of proof than the other categories is without merit. LANDLORD/TENANT 27-2-8571 William Musselman, et al. v. Karen Carroll, App. Div. (9 pp.) Where tenants failed to give landlord the notice required by a lease of their intention to vacate the demised premises, then sued landlord for the return of the security deposit which the landlord had withheld toward rent due, the trial court erred in failing to enforce the lease as written and in dismissing landlord’s counterclaim for the loss of two months’ rent. Judge also erred in holding that the landlord’s filing of an action for rent and possession terminated both the lease and tenants’ obligation to provide the required notice of the date they would vacate the premises. [Approved for publication April 12, 1996.] PRODUCT LIABILITY — BOATS 32-2-8572 Dennis F. Wagenblast v. Intercoastal Marine Inc., et al., App. Div. (3 pp.) Where defendants’ salesman told plaintiff that the boat he was purchasing was “very stable” and would not tip or sink even at full throttle on sharp turns, it constituted an express warranty that was breached when the boat capsized and sunk during non-negligent operation, and judgment in plaintiff’s favor was appropriate. PUBLIC EMPLOYEES 33-2-8573 In the Matter of Donna Poinsett, App. Div. (5 pp.) Corrections officer was correctly denied sick-leave injury benefits because she failed to prove that her disability was causally related to her employment; the record establishes that the disability was a continuation of problems she had experienced in the past, and for which benefits had previously been denied. PUBLIC EMPLOYEES — POLICE — ARBITRATION 33-2-8574 Borough of Avalon v. Avalon PBA Local 59, App. Div. (7 pp.) Law Division judge erred in confirming arbitrator’s award — granting defendant’s members certain payments upon being certified as EMTs — because the collective bargaining agreement did not obligate municipality to negotiate compensation under the circumstances, and the arbitrator acted beyond his powers. TORTS — COUNSEL FEES — ESTATES 36-2-8575 Estate of Sandra Zavis v. Somerset Hills Hotel, et al., App. Div. (6 pp.) The trial judge did not abuse his discretion in awarding counsel fees to defendant against plaintiff, because plaintiff stole a privileged document from her medical file during a defense examination, resulting in various motions, and, when plaintiff later died, the judge also was correct in ordering that these fees be paid from her estate; the amount of the judgment, however, is modified. FEDERAL COURT CASES CORPORATIONS — JURISDICTION 12-7-8576 Robert W. Carter v. Dominic Casillo, et al., U.S. Dist. Ct. (11 pp.) In plaintiff’s action claiming that accountant defendants negligently performed certain accounting services for plaintiff’s corporation and that banking defendant improperly transferred corporate funds, defendants’ motion to dismiss is granted because plaintiff failed to join the corporation, an indispensable party to the suit, and the presence of the corporation, if joined, would destroy diversity and deprive the court of subject matter jurisdiction. JURISDICTION 24-7-8577 Anna Kitces v. Patricia Moore Wood, U.S. Dist. Ct. (16 pp.) The state court’s dismissal of plaintiff’s personal injury negligence complaint for lack of personal jurisdiction over defendant should be given preclusive effect by the federal court, and defendant’s motion to dismiss is granted. SECURITIES — ARBITRATION 50-7-8578 Smith Barney, et al. v. Howard Kaplan, U.S. Dist. Ct. (8 pp.) The defendant’s securities purchase was a single transaction that took place when he purchased the security, despite the fact that he was allowed to pay in installments, and, therefore, his client-agreement claims are time-barred and permanently enjoined from arbitration, however, defendant’s claim that plaintiffs were under a duty to advise him of his “continuing suitability” for such an investment is not time-barred and may be arbitrated. WORKERS’ COMPENSATION — LONGSHOREMEN 39-8-8579 Carl Kreschollek v. S. Stevedoring Co., et al., Third Cir. (4 pp.) District Court erred in dismissing plaintiff’s complaint for lack of subject matter jurisdiction — holding that plaintiff’s constitutional challenge to the review procedure under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq., could only be raised after exhaustion of his administrative remedies — since plaintiff has alleged a sufficiently serious irreparable injury to lead the court to conclude that the administrative review process is insufficient to afford him full relief. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-8-8580 Alexander A. Artway v. Attorney Gen. of the State of N.J., et al., Third Cir. (96 pp. — includes concurring opinion) (1) The registration component of Megan’s Law does not violate the Ex Post Facto, Double Jeopardy or Bill of Attainder Clauses as impermissible “punishment”; (2) the “repetitive and compulsive” classification of Megan’s Law does not offend equal protection; (3) the alleged unreliability and unfairness of Artway’s “repetitive and compulsive” determination does not violate due process; and (4) Megan’s Law is not unconstitutionally vague as applied to him. 14-7-8581 W.P., et al. v. Deborah Poritz, etc., et al., U.S. Dist. Ct. (20 pp.) Finding that the plaintiffs — who seek to enjoin the defendants from enforcing the Community Notification Act under Megan’s Law — meet the requirements for class certification, the court certifies the plaintiff class as requested, and also grants the class preliminary injunctive relief. (Filed March 15, 1996.)

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