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Vol. 4 No. 65 – APRIL 4, 1996 STATE COURT CASES CONTRACTS 11-2-8482 Ambiance Painting & Decorating v. Norman Israel, App. Div. (3 pp.) In painter’s suit against homeowners for monies owed for work performed, amount of undisputed damage to shrubbery should have been included in setoff awarded to homeowners despite the fact that homeowners did not supply documentation of the loss for painter to present his insurer, since there was no evidence that the loss would be covered by insurance. DEBTOR/CREDITOR — FORECLOSURES — SURPLUS FUNDS 15-4-8483 Resolution Trust Corp., etc. v. Craig J. Griffin, et al., Chancery Div. (8 pp.) Final foreclosure judgment established plaintiff’s priority as the primary lienor and fixed the amount owed, and plaintiff is not entitled to reimbursement from surplus funds after sheriff’s sale for payment of taxes and insurance made after entry of final judgment but before the sheriff’s sale, since surplus funds are for the benefit of junior lienholders. [Approved for publication Apr. 1, 1996.] DEBTOR/CREDITOR — MORTGAGES IN DEFAULT — RENTS 15-2-8484 I.B.M. v. Donald E. Axinn v. Mutual Benefit Life Ins. Co., etc., App. Div. (7 pp.) On tenant’s action to resolve rent dispute between landlord (in default on his mortgage) and his mortgagee, the trial judge correctly held that mortgagee was entitled to rentals for the months following the default but not for the month of the default, since the actual default did not occur until the 11th of the month. Opinion approved for publication EDUCATION — L.A.D. 16-2-8485 Thomas B. Duffy v. Rutgers University, etc., et al., App. Div. (6 pp.) Trial court properly held that under the clear and unambiguous language of the Law Against Discrimination, a place of public accommodation does not have a duty to accommodate plaintiff’s handicap of Crohn’s Disease, and the university’s duty is limited to one of non-discrimination which it did not violate. FAMILY LAW 20-2-8486 David A. Klapproth v. Cheryl L. Klapproth, App. Div. (3 pp.) The trial court erred in failing to terminate husband’s alimony obligation upon wife’s entry into full-time employment. 20-2-8487 John Vergano v. Marilynn Bette Vergano, App. Div. (13 pp.) On reconsideration of divorce judgment, inter alia, since the trial judge did not make a determination of son’s needs in excess of college expenses nor a finding as to son’s ability to work, child support order must be remanded; strict use of the guidelines was improper because room and board is included in the determination, and plaintiff is already paying those expenses. FAMILY LAW — DOMESTIC VIOLENCE 20-2-8488 M.E.P. v. R.L.P., App. Div. (7 pp.) Where husband was found guilty of domestic violence when he went into his wife’s purse and then confronted her with a letter from her paramour, trial judge’s finding that husband was guilty of harassment is erroneous since there was no finding of intent or purpose to harass the wife and this one occasion did not constitute a course of alarming or threatening conduct. FAMILY LAW — INCARCERATION AND SUPPORT OBLIGATIONS 20-4-8489 Lois Topham-Rapanotti v. Robert Gulli, Chancery Div. (10 pp.) Since a person who commits a crime does so voluntarily and the foreseeable results may include incarceration, incarceration does not meet the standard for change in circumstances and no modification of support shall be allowed notwithstanding that the inmate lacks income or assets to pay the support obligation. [Approved for publication Apr. 1, 1996.] INSURANCE — UM/UIM COVERAGE — AGENT’S DUTIES TO EXPLAIN 23-3-8490 Laura Carmody, et al. v. Dirk Dority, et al., Law Div. (12 pp.) Since insureds were not given fair notice, as required by N.J.S.A. 17:28-1.9(b), of insurance agent’s immunity from the client’s selection of a given level of insurance, the insurer may not take advantage of immunity for insureds’ failure to obtain increased UM/UIM coverage, and the court may reform the policies to provide the increased coverage. [Approved for publication Mar. 27, 1996.] LABOR AND EMPLOYMENT — FRANCHISES — ENTIRE CONTROVERSY 25-3-8491 Jeffrey Miller v. Anthony J. Scari, et al., Law Div. (7 pp.) Where plaintiff worked in various McDonald’s franchises as part of his training program, but was ultimately terminated from that program by McDonald’s for unsatisfactory performance, and where federal litigation arose out of the termination, plaintiff’s failure to join in the federal action the franchisees with whom he had trained bars his state claims against them for tortious interference with economic opportunity, conspiracy, defamation and violation of the L.A.D. under the entire controversy doctrine, such such joinder would not have destroyed diversity jurisdiction. [Approved for publication Mar. 27, 1996.] LABOR AND EMPLOYMENT — L.A.D. — AGE AND GENDER BIAS 25-2-8492 Blodwen Bitsko v. Main Pharmacy, Inc., et al., App. Div. (19 pp.) Although there are two different standards of proof required for age and gender discrimination claims brought within the same litigation, the judge correctly instructed the jury separately on each of the two types of claims, and although plaintiff had established a prima facie case under the Law Against Discrimination of unequal pay for comparable work based on age and gender discrimination, the evidence supported the jury’s finding that the job performance reasons proffered by the employer to justify the wage differential were legitimate business reasons, and that no discrimination occurred. [Approved for publication Apr. 4, 1996.] LANDLORD/TENANT 27-2-8493 Doris Boney v. John L. Robinson, III, App. Div. (3 pp.) County welfare board, which had provided tenant’s security deposit at the inception of her tenancy, was a necessary party to litigation instituted by tenant to recover the deposit, and judgment in favor of tenant is reversed and remanded. LAND USE 26-2-8494 Michael A. Pane, P.C. v. Hightstown Borough Zoning Bd. of Adjustment, App. Div. (5 pp.) Denial of a use variance was proper since plaintiff, an attorney and owner of mixed commercial and residential property, failed to show that the expansion of his law practice/commercial use, eliminating the residential use, inherently served the public good or promoted general welfare. 26-2-8495 The Sarang Presbyterian Church, Inc., etc. v. Cliffside Park Zoning Bd. of Adjustment, et al., App. Div. (5 pp.) The Law Division correctly found that Zoning Board’s denial of a certificate of continued occupancy to nonconforming church was arbitrary and capricious, since (1) there was no abandonment of the use, even though no services were held for a year, because the premises were used continuously for other religious activity, and (2) the increase in size of the congregation was not an expansion of the use NEGLIGENCE — CONDOMINIUMS 31-2-8496 Maurice Reed, et al. v. 4428 Atlantic Brigantine Blvd. Condo. Assn., et al., App. Div. (14 pp.) Since a review of N.J.S.A. 46:8B-1 and the condominium’s master deed shows that the door and lock to each unit’s balcony are part of each individual unit and not a part of the common area, the condominium association should have been granted summary judgment or a directed verdict in window-washer’s claim for injuries sustained when she was locked out of unit and fell trying to climb over balcony to jump to the ground. TAXATION 35-2-8497 John H. Welch v. City of Summit, App. Div. (6 pp.) The trial judge correctly dismissed appeal from denial of time-barred claims for taxes paid in prior years on property for which an abatement was granted prospectively, since the taxpayer failed to show that the tax he was appealing had been imposed on the abated building rather than only on an addition thereto. 35-2-8498 Jet Urban Renewal Corp. v. City of Newark, et al., App. Div. (7 pp.) Since, in order to conclude that plaintiff’s appeal was untimely, the Tax Court judge necessarily had to resolve a factual dispute as to when the plaintiff had notice of the county board’s final action, and since there are no findings of fact on the record so that the matter may be reviewed on appeal, matter must be remanded for that purpose. TORTS 36-2-8499 David H. Morse, et al. v. Caesar’s Atlantic City Hotel Casino, et al., App. Div. (4 pp.) The jury’s verdict of no cause is affirmed on assault, false imprisonment and malicious prosecution claims against casino, and the judge did not abuse his discretion in allowing defendants to refer to one plaintiff’s “cheating” and “cutting of cards,” since this was relevant to why that plaintiff was suspected of trying to gain an advantage, resulting in the confrontation. WORKERS’ COMPENSATION 39-2-8500 Arthur G. Christopoulos v. Aim Telephones, Inc., App. Div. (10 pp.) Dismissal of claim for benefits arising out of a heart attack suffered while attending an out-of-state trade convention was proper, since the evidence supports the judge’s finding that petitioner had not proven that he was under any unusual job-related stress at the convention in excess of the wear and tear of daily living. FEDERAL COURT CASES CORRECTIONS — CIVIL RIGHTS — NEGLIGENCE 13-7-8501 Wayne Cole v. Jack Terhune, et al., U.S. Dist. Ct. (8 pp.) (1) Dismissal is required of inmate’s amended complaint alleging that prison officials were negligent in not providing a protective mat for the shower floor on which he fell, since the court lacks subject matter jurisdiction. (2) Allegations that prisoner was provided with inadequate medical care by prison physician must fail since he has not shown the requisite intentional and deliberate indifference to serious medical need. ENVIRONMENT 17-7-8502 The Fishbein Family Partnership v. PPG Industries, Inc., U.S. Dist. Ct. (17 pp.) Plaintiffs may not recover from predecessor in title to contaminated land on claims of strict liability for engaging in abnormally dangerous activity and negligent nondisclosure, because plaintiff knew or reasonably should have known of its causes of action against defendant long before it filed its complaint, based upon a prior environmental lawsuit filed against earlier predecessors in title, and claims are time-barred; however, defendant is liable to plaintiff as a matter of law for at least a portion of plaintiff’s response costs under CERCLA. LABOR AND EMPLOYMENT — STANDARD FOR NEW TRIALS 25-7-8503 Richard King v. Port Authority of N.Y. and N.J., U.S. Dist. Ct. (7 pp.) Plaintiff’s motion for a new trial of his employment discrimination case is denied, inter alia, (1) since any allegedly racial and inflammatory remarks made by defense counsel in her summation were “isolated comments in the context of an otherwise proper summation and with the benefit of the court’s instruction,” and (2) since plaintiff did not challenge at trial the judge’s jury instruction regarding the EEOC investigation of his case, despite being given numerous opportunities to do so, he may not argue post-trial that such instruction was improper. Editor’s Note: There will be no Alert issued tomorrow, April 5th, due to the court holiday.

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