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Vol. 4 No. 45 Decisions Released March 7, 1996 STATE COURT CASES DEBTOR/CREDITOR 15-2-8097 Paul Y. Lee v. Dong-A Food Corp., d/b/a Woo-Ri Corp., et al., App. Div. (3 pp.) Judgment should not have been entered against defendant Woo-Ri Corp. in suit concerning car leased to defendant Dong-A, since the Woo-Ri Corp. was not even in existence at the time the lease was signed, and even though the Woo-Ri Corp. was operated by defendant Dong-A, there was no proof adduced that Woo-Ri had assumed or was responsible for Dong-A’s debts. EDUCATION 16-2-8098 Karen Sabatino v. St. Aloysius Parish, et al., App. Div. (10 pp.) Trial judge correctly abstained from determining terminated parochial school principal’s claims for breach of contract, gender discrimination and related torts, since the First Amendment precludes a civil court from second-guessing a church’s religiously motivated employment decision regarding a “ministerial” position. [Approved for publication March 7, 1996. Avialable online in N.J. Full-Text Decisions. ] FAMILY LAW — DOMESTIC VIOLENCE 20-2-8099 M.L. v. J.H.L., App. Div. (5 pp.) Trial judge erred in subjecting the unrepresented defendant to an “accelerated proceeding” when he proceeded from an initial domestic violence hearing directly into a final hearing, without notifying defendant of his rights and options, and entry of final restraining order is reversed. INSURANCE 23-2-8100 Harrah’s Atlantic City, Inc., etc. v. Harleysville Ins. Co., App. Div. (9 pp.) Insurer of store/tenant owed casino landlord, as additional insured under an insurance policy, both a defense and indemnification in negligence suit brought by tenant’s patrons, who were hit by a car driven by landlord’s parking valet, since the accident “arose out of the use” of the leased premises. [Approved for publication March 7, 1996.] INSURANCE — VERBAL THRESHOLD 23-2-8101 Louis De Costa v. Richard Meyer, App. Div. (4 pp.) Where defendant concedes that plaintiff has raised a genuine issue of fact as to whether he sustained a type 9 injury — since the doctor advised plaintiff to stay out of work for three months — but was granted summary judgment because the trial judge found that plaintiff presented insufficient objective medical evidence, the summary judgment is reversed, since the doctor made findings of spasm, which are sufficient to survive the motion. LANDLORD/TENANT 27-2-8102 Jerry F. Wlodarczyk, et al. v. Stanley Syrek, et al. v. 335 Market St. Corp., App. Div. (5 pp.) The trial judge correctly found that tenants, in subleasing commercial premises, exercised a valid lease assignment, and did not retain the right to exercise the option to renew the lease. NEGLIGENCE — ACCOUNTANTS — ESTATES — ENTIRE CONTROVERSY 31-2-8103 Mary Perry, Alternate Executrix, etc. v. Vincent P. Tuzzio Jr., et al., App. Div. (11 pp.) The trial judge erred in barring executrix’s malpractice case against accountant, holding that the case was barred by the entire controversy doctrine since she failed to raise her claims in the probate proceedings below, because the hearing below — on exceptions to the accountant/executor’s account — was not a plenary action, but a narrow probate matter and not designed as a vehicle to adjudicate all claims that an estate might have against third parties. [Approved for publication March 7, 1996. Avialable online in N.J. Full-Text Decisions.] PUBLIC EMPLOYEES — DISCIPLINARY PROCEEDINGS 33-2-8104 Virginia Garofalo v. Morris County Bd. of Social Servs., App. Div. (14 pp.) The court affirms the decision of the administrative law judge, confirmed by the Merit System Board, that reduced the disciplinary penalty imposed upon plaintiff, a social services clerk/typist, for insubordination, and the social service board’s claim that the judge erred in not admitting evidence of plaintiff’s prior disciplinary problems is without merit, since admission of such evidence is within the judge’s discretion, and, in fact, the judge considered plaintiff’s past problems in his decision. WORKERS’ COMPENSATION 39-2-8105 Luis Castro Mendoza v. Monmouth Recycling Corp., etc., App. Div. (11 pp.) The compensation judge erred in determining that plaintiff was not entitled to workers’ compensation benefits for job-related injuries because he was an illegal alien, and not authorized by law to work. [Approved for publication March 7, 1996. Available online in N.J. Full-Text Decisions.] WRONGFUL DEATH — DEFAULT 40-2-8106 Theresa Richardson, etc., et al. v. Fountain of Life Temple Church of God, et al., App. Div. (6 pp.) Since the record is clear that individual was aware of all of the steps in the wrongful death proceedings against him and the church — alleging they negligently maintained a building, causing plaintiffs’ decedents to die in a fire in that building — the fact that individual failed to act to defend case or follow up expeditiously on any aspect of the matter because he did not subjectively believe the suit was against him personally, but thought it was just against the church, is insufficient, and his motion to vacate default judgment was properly denied. CRIMINAL LAW AND PROCEDURE — MIRANDA RIGHTS 14-2-8107 State v. Robert J. Mallon, App. Div. (14 pp.) Where defendant was given his Miranda rights and was adamant in his refusal to talk to police further until he consulted with an attorney, and where he then was alone with a police officer and subsequently indicated that he changed his mind, was given his rights again, and gave a statement to police, a question arises as to what occurred during that conversation with the officer, and as to whether the police had “scrupulously honored” defendant’s asserted right to counsel, and matter is remanded for hearing on this issue. [Approved for publication March 7, 1996. Avialable online in N.J. Full-Text Decisions.] FEDERAL COURT CASES ATTORNEYS — INCREASED FEES 04-7-8108 Joseph Kernan, et al. v. Consolidated Rail Corp., et al., U.S. Dist. Ct. (5 pp.) Although personal injury action — involving vehicular accident which left plaintiff a paraplegic — did not present complex or novel legal issues, since counsel vigorously prosecuted the case, dedicating a great deal of time to it, and secured a settlement in excess of $5 million for his clients, he is entitled to an increased fee pursuant to R. 1:21-7(f). BANKRUPTCY 42-7-8109 In re Garabet Cirkinyan, Debtor; Philmar Jewelers, Inc., et al. v. Garabet Cirkinyan, U.S. Dist. Ct. (13 pp.) Bankruptcy court erred in denying creditors’ motion to extend time to file complaint seeking to determine non-dischargeability of their debts, finding that it was not timely “made;” this court now holds that motions under Rule 4007(c) to extend time to file complaints are “made” when they are served, rather than when they are filed, and service on debtor’s attorney by facsimile, under the circumstances of this case, was valid, since debtor’s attorney, by requesting that illegible pages be re-faxxed, indicated his consent to the use of the fax for service. [For publication. Available online in 3rd Circuit - District Court. ] (For prior decision, see DDS No. 42-6-6582 in the Alert dated Sept. 8, 1995.) 42-7-8110 In re: Robert J. Sherry, et al., Debtors; GE Capital Mortgage Servs., Inc. v. Robert J. Sherry, et al., U.S. Dist. Ct. (10 pp.) Where mortgagee inadvertently filed foreclosure action against debtors in reorganization, Bankruptcy Court’s sua sponte decision to reopen bankruptcy case for the limited purpose of determining whether to accord relief to the debtor was not clearly erroneous, however, the court committed reversible error by sanctioning mortgagee, since the discharge injunction does not operate to prohibit an in rem foreclosure action, based upon a prepetition lien and running solely against the property, and, furthermore, even if there had been such a violation, it was not willful. CIVIL RIGHTS — EMPLOYMENT — CORRECTIONS — CLASS ACTIONS 46-7-8111 Walter Holland, et al. v. N.J. Dept. of Corrections, et al.; U.S.A., et al. v. State of N.J., et al.; U.S.A., et al. v. N.J. Dept. of Corrections, et al., U.S. Dist. Ct. (18 pp.) In a case seeking certification of a class — alleging civil rights violations and other types of discrimination at the hands of the corrections department — the court grants certification to the class because although the putative class seeks to represent both African-American and female members suffering from two distinct types of discrimination, the plaintiffs have easily met the commonality standard; the court also grants preliminary approval of the proposed settlement. CONTRACTS — DEFAULT 11-7-8112 MCI Telecommunications Corp. v. Two Way Agency Inc., U.S. Dist. Ct. (12 pp.) The court grants travel agency’s motion for relief from default judgment entered against it in breach of contract suit brought by telecommunications company, since the agency has shown the likelihood of a meritorious defense — that the telecommunications program it was sold embodied a “patently overreaching contract” because the agency had little or no ability to comprehend the contract or the terms presented. NEGLIGENCE — VERDICTS 31-7-8113 Mark Waldorf v. Edward J. Shuta, et al., U.S. Dist. Ct. (24 pp.) (1) The court affirms the jury’s $2.5 million pain and suffering award to quadriplegic plaintiff — in fourth trial of the matter — finding that the award, on its face, was not inadequate, unreasonable or against the weight of the available evidence, and plaintiff’s motion for new trial is denied. (2) The court also affirms the $586,500 award for past and future earnings, noting that plaintiff’s expert suggested that plaintiff could and should continue his education and find work, and therefore the jury’s consideration of whether plaintiff had mitigated his damages was appropriate. [For publication. Available online in 3rd Circuit - District Court.]

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