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Vol. 4 No. 60 – MARCH 28, 1996 STATE COURT CASES ATTORNEYS — ARBITRATION 04-2-8322 Allen Zavodnick v. Lawrence Leven, et al., App. Div. (5 pp.) Judge properly confirmed arbitrator’s award with regard to fees and loans due to former employer of two lawyers who left a firm to start their own practice, since departing lawyers had an opportunity to submit additional documentation on the amounts due and did so without requesting further opportunity to provide more, however, since a tort claim for special damages for breach of fiduciary duties arising from a “weekend raid” of employer’s office files was not an issue submitted for arbitration, that part of the award must be set aside. CIVIL PROCEDURE — RESTORATION OF DISMISSED COMPLAINTS 07-2-8323 Leslie Lenches, et al. v. Raymond Peterson, et al., App. Div. (5 pp.) Since there were multiple problems with wrong docket numbers on pleadings, and neither plaintiffs’ nor defendants’ lawyer received either notice of the clerk’s intention to dismiss the complaint or the order to dismiss, the judge mistakenly exercised his discretion in refusing to vacate the dismissal, immediately sought once the dismissal was discovered. 07-2-8324 Salahuddin Ahmed v. Abdul Malik, et al., App. Div. (4 pp.) Trial judge erred in denying plaintiff’s motion to have his assault tort complaint restored following a dismissal for lack of prosecution, since the motion was filed within one year of the dismissal, the dismissal was due to counsel’s inadvertence, and the defendants suffered no prejudice since they pled guilty to criminal assault charges arising out of the incident. CONSUMER PROTECTION 09-2-8325 Robert Schmitt, et al. v. Mack BMW, et al., App. Div. (16 pp.) The judge correctly determined that auto leasing company committed consumer fraud in altering the termination penalty language of plaintiffs’ car lease after it had been signed, and forging plaintiffs’ initials and signatures to the altered document, but the judge erred in calculating damages and entering an inadequate award of counsel fees. CONTRACTS 11-2-8326 Michael A. Glick, et al. v. David Cox, et al., App. Div. (9 pp.) In reaching his decision that the parties’ contract should be interpreted to provide for exclusive and noncompetitive agency, the trial judge erroneously relied on a pre-contract statement and post-contract conduct, when the terms of the integrated agreement itself were clear and imposed no limitation on the scope of the business dealings. CONTRACTS — DECLARATORY JUDGMENTS 11-2-8327 George A. O’Brien v. Hankphil Properties Inc., App. Div. (5 pp.) Where plaintiff alleges an agreement existed for defendant to pay him 10 percent of the sales price of defendant’s golf course for plaintiff’s consulting services and also alleges that the agreement is not subject to a condition that plaintiff make a loan to defendant, plaintiff should be permitted to adjudicate his dispute pursuant to the provisions of the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, without bringing an action to enforce this agreement or claiming that the agreement has been breached, and summary judgment dismissing the declaratory judgment action was improper. FAMILY LAW — DOMESTIC VIOLENCE 20-2-8328 A.B. v. L.M., App. Div. (8 pp.) The final restraining order between the parties should not be set aside based simply upon the parties’ reconciliation or mutual violation without careful consideration by the court of the need for continued protection. [Approved for publication Mar. 28, 1996.] MUNICIPAL LAW 30-2-8329 Mun. Council of the City of Paterson, et al. v. Zoning Board of Adjustment of the City of Paterson, et al., App. Div. (5 pp.) Law Division judge correctly ordered city zoning board to prepare a full transcript of defendants’ variance and site plan hearing at a cost not in excess of $1.50 per page, since, while the applicable section of the Municipal Land Use Law, N.J.S.A. 40:55d-10f, may not have been amended to reflect the new rate established in N.J.S.A. 2B:7-4, there can be no doubt that legislative intent was to make this statutory rate applicable. [Approved for publication Mar. 28, 1996.] NEGLIGENCE — DOGS — LANDLORDS/TENANTS 31-2-8330 Samuel Fennell, et al. v. John Hynes v. Linda Henson, et al., App. Div. (4 pp.) The court correctly dismissed plaintiff’s dog bite case against landlord defendant, holding that an absentee landlord owes no duty to protect a tenant’s invitee from dangers ascribable to the tenant’s dog where the tenant is the sole occupant of the premises. NEGLIGENCE — TORT CLAIMS — IMMUNITIES 31-3-8331 Mary A. White, et al. v. N. Princeton Developmental Center, et al., Law Div. (14 pp.) To the extent that it can be said that the death of plaintiff’s decedent, a developmentally disabled resident at defendant’s center, arose as a result of the decision of the facility and its employees to grant to decedent unrestricted access to the grounds and, by extension, to the man- made lake in which he drowned, N.J.S.A. 59:6-6 grants immunity to all of the defendants. [Approved for publication Mar. 26, 1996.] PHYSICIAN/PATIENT 29-2-8332 Grace Bilski, et al. v. Fernando Delasotta, et al., App. Div. (17 pp.) In this battle of the experts, the court finds that the jury verdict of no cause neither was against the weight of the evidence, nor constituted a miscarriage of justice, and the judge’s res ipsa loquitur charge was sufficient, with any error actually inuring to the plaintiff’s benefit. PHYSICIAN/PATIENT — JURISDICTION 29-2-8333 James J. Rigney, Admr., etc., et al. v. Leonard Lefkovic, M.D., et al., App. Div. (12 pp.) Denial of New York doctor’s motion to dismiss plaintiff’s New Jersey malpractice complaint for lack of personal jurisdiction is reversed and remanded for a full hearing to scrutinize the doctor’s purposeful conduct with respect to the decision that led to decedent’s treatment at New Jersey hospital. PUBLIC EMPLOYEES 33-2-8334 Stephen Ermi v. Dep’t of Public Property, etc., App. Div. (11 pp.) The court affirms the Merit System Board’s decision modifying city’s removal of petitioner from his employment as a laborer for its Department of Public Property and imposing instead a 30-day suspension, since the circumstances of petitioner’s convictions, although not disclosed, did not per se disqualify him from his position, and his poor personal judgment and misrepresentation constituted conduct unbecoming a public employee, the appropriate penalty for which was the suspension. 33-2-8335 James L. Usry v. Bd. of Trustees, P.E.R.S., App. Div. (8 pp.) The P.E.R.S. Board of Trustees correctly determined that the former Atlantic City mayor was eligible for a pension based on his 33 years as a public school teacher, but that his six years service as mayor was dishonorable and not creditable for a pension based on his violation of campaign contribution expenditure and reporting laws. REAL ESTATE — ENGINEERS — REALTORS 34-2-8336 Thomas J. Ely v. Bernard R. Berson & Assocs. Inc., et al. v. Henry Johnson, AIA, et al., App. Div. (12 pp.) In a case where land purchasers sued engineers and realtors for alleged misrepresentations and breaches regarding the existence of wetlands on the purchased property, the trial judge correctly granted summary judgment to the defendants and (1) did not abuse his discretion in allowing engineer’s expert to testify on the reasonableness of engineer’s reliance on National Wetlands Inventory maps, since the expert had “sufficient knowledge of professional engineering standards applicable to the situation to justify his expression of an opinion,” and (2) held that plaintiff’s expert’s report against realtors was a net opinion and inadmissible, and that plaintiff’s allegation that realtors breached a duty owed him in failing to advise him to do a wetlands investigation was irrelevant, since plaintiff acknowledged the need for such an investigation in retaining the engineers to do a feasibility study that included such an investigation. REAL ESTATE — FORECLOSURES — TRUSTS 34-2-8337 Rogan Equities Inc., etc. v. Celeste Santini, etc., et al., App. Div. (26 pp.) The trial court correctly (1) upheld the constitutionality of N.J.S.A. 2A:50-15 and R. 4:26-1, which permit service of a foreclosure complaint on a trustee in lieu of service on trust remaindermen, and (2) held that the doctrines of equitable estoppel and laches barred the trustee from attacking the judgment based upon lack of proper service upon her as an individual, since she had actual knowledge of the action by being served as the trustee, and failed to take steps to protect her individual interests for more than two years. [Approved for publication Mar. 28, 1996.] TAXATION 35-2-8338 Richard Simon, Trustee, et al. v. Twp. of Voorhees, etc., et al., App. Div. (11 pp.) There is nothing in the statutes that authorized a municipality to vacate a tax sale certificate based upon a settlement of the tax appeal with the property owner, where the assessment was never declared “invalid” or illegal, and the action of the municipality constituted a de facto redemption, entitling tax sale certificate holders to full redemption value. [Approved for publication Mar. 28, 1996.] 35-2-8339 Pierce Davidson Assocs. v. Twp. of Franklin, App. Div. (3 pp.) Tax Court’s dismissal of taxpayer’s assessment appeal for failure to timely supply income and expense information pursuant to N.J.S.A. 54:4-34 is affirmed, since, whether by tactic or sloth, the taxpayer here waited until it was informed of the proposed new assessment and had met with the revaluation team before submitting its data, and such conduct is unacceptable. CRIMINAL LAW AND PROCEDURE 14-2-8340 State v. Christopher Davidson, App. Div. (7 pp.) The state failed to establish a foundation for the admission of a laboratory blood toxicology report, despite defendant’s timely and repeated requests for the underlying data, and subsequent objections to the report’s admissibility; therefore defendant’s DWI conviction is reversed. FEDERAL COURT CASE CIVIL PROCEDURE — CERTIFICATION OF INTERLOCUTORY APPEALS 07-7-8341 American Underwriters Life Ins. Co., etc. v. Plaza Fin. Realty Corp., etc., et al., U.S. Dist. Ct. (6 pp.) Defendants’ motion to certify two issues for immediate appeal is denied because the need for review of the issues may be mooted by further developments in the district court, and the defendants have not demonstrated that this is an extraordinary case warranting certification at this juncture. Opinion Approved for Publication: The June 29, 1995, lower court opinion in DDS No. 14-2-6033, State v. Michael Blacknall, has been approved for publication at the direction of the state Supreme Court, which issued its opinion in the case on February 28, 1996 (see DDS No. 14-1-8016).

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