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Vol. 4 No. 61 – MARCH 29, 1996 STATE COURT CASES BANKRUPTCY 42-2-8342 The Party Parrot Inc. v. Birthdays & Holidays Inc., etc., et al., App. Div. (15 pp.) Reversal is required of court’s decision to vacate an earlier execution order that allowed plaintiff to sell defendant’s property to satisfy plaintiff’s lien, since the bankruptcy trustee would have been without power under Bankruptcy Code Section 544(a)(2) to avoid plaintiff’s interest in defendant’s property if there was a levy before defendant’s bankruptcy filing, and the matter must be remanded for a determination of whether there was a levy. [Approved for publication Mar. 29, 1996.] DEBTOR/CREDITOR — MORTGAGES 15-2-8343 First Fidelity Bank, N.A., N.J., etc. v. Group One, etc., et al., App. Div. (9 pp.) Since no subordination agreement or overriding equitable considerations are present, plaintiff’s first-filed mortgage clearly is ahead of defendant’s right, and defendant’s argument that the plaintiff’s alleged errors in computing the amounts due plaintiff somehow exposes plaintiff to the operation of equitable principles in consideration of the priority issue is without merit. EDUCATION — SCHOOL ELECTIONS 16-2-8344 George Saunders v. Toms River Regional Schools Bd. of Educ., App. Div. (13 pp. — includes dissent) Under the newly enacted school-elections statute, the judge correctly found that the defect in candidate’s nominating petition — that one of the signatories was not a registered voter as required — was substantive, and not subject to cure, and therefore the petition was properly invalidated; legislative intent can be fairly gleaned to require retroactive application of the new statute. [Approved for publication Mar. 27, 1996.] FAMILY LAW 20-2-8445 Darlene Borai, etc. v. Vernon H. Crosby, App. Div. (10 pp.) Reversal is required of the orders denying defendant’s post-judgment motions for relief from child support obligations due to changed circumstances, since the judge committed serious procedural errors — including allowing the plaintiff, who did not file responsive papers, to appear and testify on the return date of the motion in defendant’s absence and without notice to defendant, who had not requested oral argument. LABOR AND EMPLOYMENT — ARBITRATION 25-2-8446 Intl. Serv. Workers Local 101 v. Jersey City Hous. Auth., App. Div. (7 pp.) Arbitrator did not exceed his authority or act improperly in determining that public housing site manager acted reasonably in response to emergency ice conditions in asking two housing authority residents to assist building maintenance workers in salting walkways, rather than using all union personnel, and housing authority did not violate collective bargaining agreement. NEGLIGENCE 31-2-8447 Angel DeJesus v. City of Newark, et al., App. Div. (6 pp.) Since the information plaintiff provided to the city — regarding his car accident as a result of a pothole — was insufficient for it to have initiated any investigations, there was no substantial compliance with the Tort Claims Act, and case against the city was properly dismissed. 31-2-8448 Shadriyah Spruill, etc., et al. v. Newark Hous. Auth., et al., App. Div. (9 pp.) In a case where plaintiff’s infant was killed by a stolen car while playing in housing authority playground, the judge’s instructions on proximate cause were prejudicially erroneous and require reversal of the judgment for the housing authority, since the authority, as a public entity, could be liable if the public property’s alleged “dangerous condition” — the lack of a fence — was found to have substantially contributed to the injury resulting from a chain of events initiated by the culpable third-party driver. PHYSICIAN/PATIENT 29-2-8449 Lemon Clemons Sr., etc. v. St. Michael’s Hosp., et al., App. Div. (7 pp.) Judge did not err in allowing plaintiff to amend complaint to include a cause of action based upon the Survival Act late in the litigation, since the only new factual element which the amendment injected into the case was plaintiff’s decedent’s pain and suffering, and the judge postponed the trial to give defendants adequate time to depose plaintiff’s expert and retain an expert of their own, avoiding any prejudice. 29-2-8450 Marie Calabrese v. Marc S. Cohen, et al., App. Div. (12 pp.) Dismissal of medical malpractice case is affirmed, since while defense counsel’s questions in cross-examining plaintiff’s psychological expert witness might have left the jury with the impression that plaintiff was mentally ill, plaintiff supplied no evidence to refute the insinuations, and it is not apparent that the comments so prejudiced plaintiff that they clearly had the capacity to produce an unjust result. TAXATION 35-2-8451 Eugene R. Paul v. Upper Freehold Twp., App. Div. (3 pp.) Taxpayer erred in failing to file a timely tax appeal for one of his lots and, although he was notified that an assessment on an adjoining lot had been reevaluated as farmland as he requested, he received no similar communication respecting the other lot, and had no right to presume that the other lot would be similarly reassessed. CRIMINAL LAW AND PROCEDURE 14-2-8452 State v. Stephen Roth, App. Div. (17 pp.) Defendant’s threat to file a motion to set aside a sheriff’s sale unless the successful bidder paid him $2,000 constitutes attempted theft by extortion under N.J.S.A. 2C:20-5g, and his conviction is affirmed. [Approved for publication Mar. 29, 1996.] Editor’s Note: Yesterday’s Alert contained the Law Division case of Mary A. White, et al. v. North Princeton Developmental Center, et al., DDS No. 31-3-8331, which was approved for publication on March 26, 1996. The court has now advised that this case had been appealed, and the publication approval has been withdrawn.

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