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Vol. 4 No. 55 Decisions Released March 21, 1996 STATE COURT CASES ATTORNEY/CLIENT — ENTIRE CONTROVERSY 04-2-8249 Robert Scherzer v. Saul Ewing Remick, et al., App. Div. (12 pp.) Dismissal of plaintiff’s legal malpractice complaint based on the entire controversy doctrine was improper, since the first suit dealing with partnership termination issues was filed in another state and the judge did not make a determination mandated by Mortgageling Corp. v. Commonwealth Land Title, 142 N.J. 336 (1995) as to whether plaintiff deliberately chose to fragment the litigation, and since there is a question as to whether jurisdiction over defendants was available in the first suit. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8250 Edward J. Contarino v. Bd. of Review, App. Div. (8 pp.) Appellant was properly found ineligible for additional unemployment benefits during training since he did not enter into counseling as required under N.J.S.A. 43:21-60(c), although he was aware that counseling was a necessary training-program component. 25-2-8251 Herbert T. Sunderland v. Bd. of Review, et al., App. Div. (5 pp.) Ship engineer was properly found to be “unavailable for work” and denied unemployment benefits since he did not re-register with the union for “re-shipping” when his ship was under major conversion, he did not look for work outside the union, and was not interested in taking a job which would mean a reduction in salary. LAND USE 26-2-8252 Manella Sanitation Inc. v. Planning Bd. of the Borough of High Bridge, App. Div. (3 pp.) The Law Division correctly vacated the denial of plaintiff’s proposed site plan and remanded the matter for reconsideration based upon the apparent conflicts of interest of the zoning officer who participated in the decision, and based upon the fact that public hearings occured while municipal officials conducted undisclosed discussions with the property owner. NEGLIGENCE 31-2-8253 Bernard Zoltanski, etc. v. City of Trenton, App. Div. (7 pp.) Where plaintiff’s wife fell off a retaining wall and died and plaintiff filed suit against the city alleging that the city was responsible for the dangerous condition and that it failed to erect a fence, even though the city did not own the property, dismissal was proper, since plaintiff’s allegation that the city retained control over the property by reverter language in housing project deeds is without merit, and claims regarding the fence were time-barred. NEGLIGENCE — FRIVOLOUS CLAIMS 31-2-8254 Glenn Marsh v. Joseph Harkins, App. Div. (6 pp.) The trial court erred in permitting the plaintiff’s doctor to give a net opinion, rendered against overwhelming circumstantial evidence to the contrary, that defendant caused plaintiff’s injuries, and defendant should have been granted summary judgment as to liability and frivolous claim costs. PHYSICIAN/PATIENT 29-2-8255 John Nappi, et al. v. Gabriel Sinisi, M.D., App. Div. (9 pp.) Verdict of no cause in medical malpractice case is affirmed; judge did not err in his decisions regarding the admission of various learned treatises, since the plaintiffs were able to show the treatises’ contents both on direct examination of their own witnesses and on the cross-examination of the defendant’s experts. 29-2-8256 John Connolly, et al. v. Esber Mansour, M.D., et al., App. Div. (17 pp.) Since the jury had before it compelling and unchallenged testimony from an economic expert that plaintiff suffered lost wage damages and diminished earning capacity in the range of $1.3 million, the total verdict in that amount is manifestly unjust because it does not appear to have compensated plaintiff for his injury and pain and suffering. PUBLIC EMPLOYEES — PENSIONS 33-2-8257 Thomas P. Knipp v. Bd. of Trustees, P.E.R.S., App. Div. (7 pp.) Retiree was correctly denied the right to change his pension option choice based upon unanticipated events occurring after his administrative right to make the election had expired. PUBLIC EMPLOYEES — POLICE 33-2-8258 In the Matter of Keith Russell, App. Div. (3 pp.) Decision of the Merit System Board determining that applicant was psychologically unfit to be a police officer is affirmed based on the applicant’s psychological test results and a review of his past history, and the fact that the examining doctor’s opinions could not be “critically examined” by applicant’s expert because the raw data was not in understandable form did not violate applicant’s due process rights, because applicant could have deposed the examining doctor and chose not to do so. CRIMINAL LAW AND PROCEDURE 14-2-8259 State v. Eldegard Kelm, App. Div. (7 pp.) Issuance of a post-dated check can be found to be a violation of N.J.S.A. 2C:21-5, and proof of an intent to defraud is not required for a conviction. [Approved for publication Mar. 21, 1996. Available online in N.J. Full-Text Decisions. ] 14-2-8260 State v. Akbar Jackson, App. Div. (14 pp.) (1) While federal court would have exclusive jurisdiction of a crime committed solely on federal property, where the defendant assaulted a postal worker and took her purse and car keys on federal property, then crossed to the parking area on state property and took her car, the armed robbery was a continuous event on both state and federal property, and the federal court does not have exclusive jurisdiction. (2) Defendant’s conviction is reversed and remanded for a new trial, since the judge erred in failing to give a Hampton/Kociolek charge as to defendant’s written and oral statements. [Approved for publication Mar. 21, 1996. Available online in N.J. Full-Text Decisions. ] 14-2-8261 State v. Dominic Fulginiti, App. Div. (5 pp.) The motion judge erred when he found that — in the context of a confrontation between feuding neighbors over a tree-trimming incident — defendant’s yelling of expletives at his neighbor in combination with the motion of the electric shears in his hand constituted harassment. Additional Opinion Approved for Publication: 17-2-5249 N.J. Dep’t of Envtl. Protection and Energy v. Occidental Chem. Corp. [Decided March 24, 1995; Approved for Publication March 7, 1996. Available online in N.J. Full-Text Decisions. ]

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