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Vol. 4 No. 56 Decisions Released March 22, 1996 STATE COURT CASES ENVIRONMENT — INSURANCE 17-2-8262 Metex Corp. v. Federal Ins. Co., et al., App. Div. (25 pp.) Public policy considerations in combination with the plain language of the Spill Act and its regulations, the plain language of a comprehensive general liability policy, and the policyholder’s reasonable expectations require a finding that insurance coverage is mandated in this case, even though the New Jersey Deparment of Environmental Protection has not demanded the cleanup. [Approved for publication Mar. 22, 1996. Available online in NJ Full-Text Decisions.] ENVIRONMENT — SOLID WASTE 17-2-8263 In the Matter of the Request of the Borough of North Arlington, etc., App. Div. (33 pp.) DEP erred in issuing an order in rate case involving Hackensack Meadowlands Development Commission’s transfer station, which established a final host community benefit and authorized the release of the host community benefit funds from escrow without giving Hudson County Improvement Authority notice or opportunity to be heard. FAMILY LAW 20-2-8264 Maria Conchita Gutierrez v. Manuel Gutierrez, App. Div. (3 pp.) Plaintiff’s challenge to court’s failure to conduct a plenary hearing in child custody and visitation matter “comes with some ill grace” where plaintiff had clearly advised the court that the only issue being raised summer vacation visitation, and it is clear that the parties and the court envisioned a future, time-consuming, family services evaluation in contemplation of further proceedings. INSURANCE — P.I.P. 23-2-8265 Dr. Henry F. Neumann, P.A. v. Nicole Contessa, et al. v. Prudential Ins. Co. of Am., App. Div. (9 pp.) Judge erred in ordering PIP carrier to pay insured’s dental bills, since the PIP claim was barred by the statute of limitations, and there is no evidence to support the insured’s allegation that the limitation period is tolled because the dentist was the insurer’s agent, since the insurer merely asked the dentist to examine the insured, and did not authorize treatment. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8266 In the Matter of Michael J. Juliano, App. Div. (3 pp.) Where chef gave his employer two weeks’ notice of his intention to resign, but employer told him he was terminated immediately and did not need to work the two weeks, chef was improperly denied unemployment compensation benefits. LANDLORD/TENANT 27-2-8267 A.B.A. Realty Co. v. Grand Union, et al., App. Div. (8 pp.) The trial court correctly dismissed landlord’s possession action — alleging that tenant’s lease assignment was a breach — since landlord failed to comply with discovery orders regarding damages and, even if it had, it could not have proved a prima facie case on the substantive issue of assignment, which moots the damages issue. LAND USE 26-2-8268 George Muschal v. City of Trenton Zoning Bd. of Adjustment, et al., App. Div. (5 pp.) Where defendant sought to change his nonconforming tanning salon to a nonconforming sneaker store, use variance was improvidently granted, since the defendant did not establish the requisite “special reasons” — positive criteria — for the variance. 26-2-8269 Kiejdan & Trocki, etc. v. Twp. of Hamilton Planning Bd., App. Div. (16 pp.) In a case where developers obtained site plan approval for a residential development using septic tanks, but the state Department of Environmental Protection intervened during development and issued a cease and desist order, followed by a lengthy and arduous series of proceedings the result of which was that the developers had to install sewer lines, and then municipality denied developer site plan approval saying the approval period had lapsed and the zoning had been changed, the trial judge correctly held that the DEP orders barring construction tolled the statutory approval period for the site plan. PHYSICIAN/PATIENT — ENTIRE CONTROVERSY 29-2-8270 Carolyn Abbott v. Abelardo Inoa, App. Div. (3 pp.) Where plaintiff sued various defendants allegedly responsible for her quadriplegia, and her treating neurologist testified for her in that case as an expert, her later malpractice action against the neurologist was barred by the entire controversy doctrine. REAL ESTATE — FORECLOSURE 34-2-8271 Joseph D. Daku, et al. v. Kabro of East Amwell, Inc., etc., et al., App. Div. (5 pp.) In reforming a mortgage to include certain lands and allowing plaintiffs to foreclose on others, the trial judge fashioned an appropriate remedy to circumvent the conundrum in which the parties had placed themselves with various mortgages and releases of land. REAL ESTATE — TRESPASS — EASEMENTS 34-2-8272 Arie Edery, et al. v. Schlomo Meyer, etc., et al., App. Div. (7 pp.) The trial court erred in imposing an easement on plaintiffs’ property for the benefit of defendants because there was no express conveyance of an easement, and the record fails to prove by clear and convincing evidence that an easement arose either by implication or prescription. WORKERS’ COMPENSATION 39-2-8273 Diana Nobilio v. Carriage House Manor, App. Div. (8 pp.) The findings of the compensation judge are deficient, since, in ruling that petitioner suffered 15 percent of total disability, it was obvious that he believed petitioner’s medical expert over respondent’s, but he did not explain why he discounted petitioner’s doctor’s findings regarding the extent of her permanent injury, and matter is remanded. WRONGFUL DEATH 40-2-8274 Jerry Gross, etc. v. Armor Elevator Co., et al., App. Div. (11 pp.) In a case where plaintiff brought suit against defendants, alleging that their negligence in maintaining an elevator prevented emergency medical personnel from reaching plaintiff’s decedent in time to prevent worsening of decedent’s condition and death, trial judge did not abuse his discretion in granting summary judgment to the defendants on short notice, since the medical causation expert report was inadequate, and plaintiff had sufficient opportunity to furnish an adequate report. CRIMINAL LAW AND PROCEDURE 14-2-8275 State v. Matthew Stancil, App. Div. (10 pp.) Defendant was denied a fair trial by the trial court’s failure to preclude the testimony of a key state witness, a supposed eyewitness, who was not named in discovery and was called without notice to the defense. FEDERAL COURT CASES BANKRUPTCY 42-8-8276 Susan Judd v. Lawrence Wolfe; Susan Judd, Debtor, Third Cir. (14 pp.) In a no-asset, no-bar date case, dischargeability is unaffected by scheduling, and, after a case is closed, the debt in question — which had been omitted from debtor’s schedule of creditors — was either discharged or excepted from discharge based on U.S. Bankruptcy Code Sections 523 and 727(b); therefore the filing of a motion to reopen the bankruptcy case was not necessary to discharge the debt if the statutory exceptions do not apply. CONTRACTS — FRANCHISES 11-7-8277 Liberty Lincoln-Mercury Inc. v. Ford Motor Co., U.S. Dist. Ct. (14 pp.) It is not permissible under the New Jersey Franchise Practices Act for defendant car manufacturer-franchiser to reimburse plaintiff car dealer-franchisee for parts used in warranty repairs at the retail rate of 77% as required under the act, yet then impose a surcharge on vehicles sold by plaintiff in order to make up the difference between the retail rate and the standard contract reimbursement rate, and summary judgment is granted to plaintiff. JURISDICTION — MALICIOUS PROSECUTION 24-7-8278 Salvatore B. Dispenziere v. Housing Auth. of the City of Newark, et al., U.S. Dist. Ct. (7 pp.) A review of a complaint count alleging that former employers maliciously prosecuted ex-employee — by initiating an investigation into his alleged role in racketeering activity — shows that this count asserts a proper malicious prosecution claim under federal law by implicating Section 1983; although the count does not specify that it is brought under that section, the count incorporates the paragraphs of the complaint that invoke the section; therefore, the defendant employer’s motion to dismiss the count for lack of federal jurisdiction is denied.

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