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Vol. 4 No. 54 Decisions Released March 20, 1996 STATE COURT CASES CONDEMNATION 44-3-8235 Borough of Essex Fells, etc. v. Kessler Inst. for Rehabilitation Inc., etc., et al., Law Div. (16 pp.) Since the borough filed condemnation proceedings in order to prevent Kessler from establishing a community rehabilitation facility in the community, and not for public park purposes as stated, the borough acted in bad faith in exercising its property condemnation power, and the complaint therefore is dismissed. [Approved for publication Mar. 19, 1996.] CORPORATIONS 12-2-8236 Proformix Inc., et al. v. George Moricoli, et al., App. Div. (8 pp.) In a case where plaintiff — manufacturer and distributor of patented computer keyboard systems — files suit against a former employee who left and created his own business entity, alleging breach of fiduciary duty, misappropriation of trade secrets, etc., the motion judge properly concluded that former employee’s counterclaim on a debenture was independent from plaintiff’s allegations against the employee, and partial summary judgment in favor of employee was proper on plaintiff’s default on counterclaim; the judgment is stayed, however, pending the resolution of plaintiff’s claims against the employee. CORRECTIONS 13-2-8237 Loreain Tolle v. Dept. of Corrections, App. Div. (5 pp.) Since refusing to accept assignment to a particular housing unit constitutes refusing to accept a “program” assignment within N.J.A.C. 10A:9-3.4, inmate was properly disciplined for his refusal to accept his housing assignment, and the fact that he believed he should not have had to move due to his physical condition did not mean he could disobey the order simply because he thought it was unreasonable; the correct procedure is to obey the order and proceed through proper channels to obtain a medical opinion later that would support his appeal of the assignment. FAMILY LAW 20-2-8238 Jean Jacques Marcel Ivaldi v. Lamia Khribeche Ivaldi, App. Div. (16 pp.) Family Part judge erred in ordering mother to return her child to the United States, restraining her from continuing custody proceedings in Morocco or any other jurisdiction, and awarding temporary custody to the father, since the parties had resided in Morocco before coming to this country, and the mother had taken the child there pursuant to the parties’ separation agreement, which granted her sole custody and expressly permitted her to reside with the child in another country. [Approved for publication Mar. 15, 1996.] 20-2-8239 Linda K. Finnegan v. Kevin F. Finnegan, App. Div. (5 pp.) Order determining that the parties’ 21-year-old daughter was emancipated, and modifying defendant’s alimony and support obligations, is affirmed, since the daughter had a full-time job and was not going to college, and the fact that the daughter may have lacked direction and focus for her life was not a basis to deny the emancipation request. 20-2-8240 Michele A. D’Angio v. Michael T. D’Angio, App. Div. (9 pp.) Motion judge correctly concluded (1) that the day care for the parties’ younger children was necessary and that the parties should share the cost equally, (2) that the dual divorce judgment and the settlement agreement did not address the item of unreimbursed medical expense, and the amount discussed was not intended to be an all-inclusive cap on expenses, and (3) that if defendant’s reasons for missing weekend visitation (upon which plaintiff relied to fulfill her job as a realtor) were not emergencies or due to illness, defendant should reimburse plaintiff for the cost of a babysitter. INSURANCE 23-2-8241 Toya Cutler v. Cumberland Mut. Fire Ins. Co., App. Div. (4 pp.) In a case where insurer denied fire insurance proceeds to plaintiff after fire destroyed plaintiff’s property and more than $25,000 in belongings, summary judgment in favor of insurer was improper, since the evidence created a fact issue as to whether plaintiff’s property was vacant or merely unoccupied, and since the evidence concerning the policy’s increased-hazard exclusion was not so one-sided that the insurer must prevail as a matter of law. LABOR AND EMPLOYMENT 25-2-8242 Roger K. Brown v. Adamar of N.J. Inc., etc., et al., App. Div. (5 pp.) Where former casino employee executed a “Termination and Complete and Permanent Release of Claims” document when she left the casino’s employ, and did not allege any fraud, misrepresentation or overreaching in connection with the release, her complaint for wrongful discharge and other charges was properly dismissed, since the release was all-encompassing, and barred employee’s action not only against the casino, but against her co-employee as well. NEGLIGENCE 31-2-8243 Myung Soo Kim v. Philip J. Braune, App. Div. (3 pp.) Since wind is an everyday occurrence, and does not constitute an act of God, and, since the circumstantial evidence was compelling that a dead branch from defendant’s tree fell on and damaged plaintiff’s car, even in the absence of eyewitnesses, the verdict that defendant pay plaintiff’s $500 auto insurance deductible is affirmed. PHYSICIAN/PATIENT — DENTISTS 29-2-8244 Mary Ann Reed, et al. v. Gary Dornfeld, D.D.S., App. Div. (5 pp.) Because it was the dentist’s failure to diagnose plaintiff’s severe bone atrophy and inadequacy of healthy bone before implant surgery that was faulted, not his selection of implant, the statement of plaintiff’s counsel in his opening about “the wrong implant” did not irrevocably taint the jury, and, further, the judge gave an immediate cautionary instruction which was adequate. PHYSICIAN/PATIENT — EXPERTS 29-2-8245 Frances Swinick v. Fred M. Rosen, App. Div. (7 pp.) On plaintiff’s suit alleging that defendant had failed to provide her with an expert report supporting her contentions in a malpractice lawsuit, the court correctly dismissed counts alleging libel, conspiracy, civil and constitutional rights violations and the refusal to produce a report supporting plaintiff’s contentions against the doctor, since the defendant had no obligation to provide plaintiff with a report that satisfied her, merely to review the materials submitted to him and offer an opinion, which he did; nevertheless, the court’s dismissal of the count requesting that defendant return plaintiff’s documents was in error and is reversed. PUBLIC EMPLOYEES 33-2-8246 In the Matter of N.J. Turnpike Auth. v. Am. Fed’n of State, Cy. and Mun. Employees, Council 73, et al., App. Div. (26 pp.) The Public Employment Relations Commission misconstrued statutory definitions in certifying three separate collective negotiations units within the plaintiff authority, and in doing so, rejecting the authority’s contention that the affected employees are either “managerial executives,” or “confidential employees” as defined in N.J.S.A. 34:13A-3(f) and (g). [Approved for publication March 20, 1996.] TAXATION 35-5-8247 N.J. Hotel Holdings, Inc. v. Director, Div. of Taxation, Tax Ct. (10 pp.) Taxpayer who acquired assets by a deed-in-lieu of foreclosure and bill of sale, and who failed to give notice to the director under N.J.S.A. 54:32b-22(c), was liable for the sales and use tax liability of the person from whom the assets were acquired. [Approved for publication.] CRIMINAL LAW AND PROCEDURE 14-2-8248 State v. Daniel Dugan, App. Div. (8 pp.) Since defendant did not show excusable neglect, and a petition for post-conviction relief must be filed within five years of entry of the judgment memorializing the conviction, even if further trial proceedings relating to the sentence are conducted during the interim period, defendant’s petition is time barred, and his appeal is dismissed. [Approved for publication Mar. 20, 1996.]

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