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Vol. 4 No. 43 Decisions Released March 5, 1996 STATE COURT CASES CONTRACTS 11-2-8063 Druckers Inc. v. Household Retail Svcs. Inc., etc., App. Div. (7 pp.) After plaintiff sold merchandise to 13 customers under fraudulent sales contracts, defendant properly disclaimed responsibility and deducted funds from its account with plaintiff pursuant to the clear terms of a merchandising financing agreement repurchase provision, and the dismissal of plaintiff’s complaint seeking recovery of the debited funds was appropriate, as was the award to defendant on its counterclaim to compensate for a fourteenth fraudulent account. DEBTOR/CREDITOR 15-2-8064 Valley Savings Bank, SLA v. Domenico A. Vassallo v. Donald R. Schmidt, et al., App. Div. (4 pp.) Since there was no genuine dispute of material fact respecting the scope and extent of one defendant’s individual guaranty of a corporate loan, the motion judge correctly granted summary judgment adjudicating the other defendant’s right to equal contribution from the first defendant in satisfying their adjudicated joint and several liability on that guaranty, and the first defendant’s contention that he had limited his guaranty liability was not supported by the record. FAMILY LAW 20-2-8065 Linda K. Belfer, etc. v. Norbert Belfer, App. Div. (4 pp.) Once the terms of the parties’ settlement agreement were met, there was nothing in the agreement as to the parties’ Florida condominium that required further resolution by the New Jersey family court, and the settlement agreement became like any other document respecting real property where the owners have a falling out regarding the property’s disposition, and the New Jersey order denying plaintiff’s attempt to enjoin defendant’s Florida partititon proceedings is affirmed. FAMILY LAW — DOMESTIC VIOLENCE 20-2-8066 Diane M. Galdieri v. Vincent Galdieri, App. Div. (6 pp.) The court affirms the trial court’s provision for support in the domestic violence proceeding, since this provision was emergent, and was to ensure that plaintiff would have a temporary means of subsistence after defendant’s removal from the marital home, and the full resolution of all issues of distribution and support are to be sorted out and addressed in the ultimate matrimonial proceeding. 20-2-8067 V.B. v. J.S., App. Div. (5 pp.) Trial judge improperly entered a final restraining order without a factual determination as to whether defendant committed a domestic violence act in striking his wife, or whether defendant was acting in self-defense because wife jumped on him and bit him. INSURANCE 23-2-8068 Atlantic Employers Ins. Co. v. WMP-NJ, Inc., et al. v. Liberty Mut. Ins. Co., App. Div. (9 pp.) The judge erred in denying third-party defendant’s motion to dismiss third-party complaint, since the third-party plaintiff was never a defendant in the original complaint, and otherwise failed to meet the mandatory criteria of R. 4:8-1. 23-2-8069 Virginia Gamino v. General Am. Life Ins. Co., App. Div. (10 pp.) Statutory individual life insurance conversion privilege and automatic 30-day continuation of a terminated employee’s life insurance benefit does not include accidental death and dismemberment benefits provided in a separate schedule of decedent’s group policy, and the trial judge correctly dismissed decedent’s survivor’s suit seeking such coverage. [Approved for publication March 5, 1996. Available online in N.J. Full-Text Decisions.] MUNICIPAL LAW 30-2-8070 Community Corp. of Highpoint Inc., etc. v. Mayor and Council of the Twp. of Montague, etc., et al., App. Div. (4 pp.) The judge below properly determined that plaintiff is a “qualified private community” as defined in N.J.S.A. 40:67-23.2e, and, as such, plaintiff is entitled to receive municipal services or be reimbursed for those services. NEGLIGENCE 31-2-8071 Salvatore J. Valvano, et al. v. Toys ‘R’ Us Inc., et al., App. Div. (28 pp.) The jury verdict in plaintiff’s favor is affirmed — in case involving injuries sustained in a slip and fall outside of the restroom in defendant’s store — because the jury was free to believe plaintiff’s experts’ testimony that plaintiff’s intervening injuries would have healed but for the subject accident, which accelerated and aggravated plaintiff’s diabetic condition, and the fact that the jury accepted this testimony as opposed to that offered by the defense experts does not mean that the verdict was against the weight of the evidence. 31-2-8072 500 Brunswick Avenue Corp. v. Wells Fargo Alarm Svcs., et al.; Twin County Grocers v. Wells Fargo Alarm Svcs., et al., App. Div. (9 pp.) The exculpatory clause in the contract between fire alarm company and owner of warehouse was enforceable to shield alarm company from liability for negligent and grossly negligent conduct, and company could only be held liable for willful, reckless and wanton misconduct; since the judge found that warehouse owner failed to show that alarm company’s conduct — in failing to inform owner that the tenant had shut off certain valves in the sprinkler system — constituted anything more than gross negligence, summary judgment in favor of alarm company is affirmed. PARENT/CHILD 28-2-8073 In the Matter of the Guardianship of A.S.W., et al., App. Div. (20 pp.) Termination of father’s parental rights is remanded for further findings as to what contacts the father has had or attempted to have with the children, and to investigate father’s contention that he has availed himself of drug and alcohol programs, and to determine his progress therein. PHYSICIAN/PATIENT 29-2-8074 Shelia M. Flores v. Stanley Rekant, M.D., App. Div. (5 pp.) Where plaintiff sued dermatologist for treating her cystic acne with the drug Accutane, alleging that the drug caused “pseudotmor cerebri” and then withheld, until the last minute, a letter from the purported expert witness which stated uncategorically that plaintiff never had that condition, the trial judge correctly granted defendants a new trial after jury verdict in plaintiff’s favor, concluding that the defense had been unfairly affected by the late disclosure, even though they were able to videotape the doctor’s testimony and show it to the jury, and jury verdict of no cause on second trial is affirmed. 29-2-8075 Sharon Pastore, et al. v. Philip Seaver, M.D., et al., App. Div. (15 pp.) Where plaintiff’s wound after a coronary bypass became infected, and there was a dispute over when the plaintiffs notified the doctor of the wound’s discharge so that he could recommend re-hospitalization, and where jury believed doctor’s version of when he was notified and entered a verdict in his favor, trial judge properly denied plaintiffs a new trial based on the alleged “new evidence” their daughter could provide on the disputed notice issue, since the daughter could have testified at the trial, but did not, and would be subject to the same credibility determinations as the other family members who testified, and the evidence which would be offered would therefore be cumulative. PUBLIC RECORDS 52-2-8076 Stephen A. Gregory v. State of N.J., et al., App. Div. (10 pp.) In a case where plaintiff seeks access to numerous public records to prove that the current husband of his ex-wife, an investigator for the public defender’s office, used his office to obtain information about the plaintiff’s income in order to assist the ex-wife in her child support dispute with plaintiff, plaintiff’s case should not have been dismissed under the Tort Claims Act, since the act is irrelevant to plaintiff’s claims, and, although his complaint may have been inartfully drafted, as a pro se filing, it was entitled to a more indulgent reading; however, the only true defendant in the case is the state Office of the Public Defender, so the dismissal remains in place for the numerous other governmental officials named as defendants. REAL ESTATE — HOUSING CODE VIOLATIONS 34-2-8077 Bureau of Hous. Inspection, etc. v. Regency Village Assocs., etc., App. Div. (3 pp.) The Commissioner of Community Affairs was within his discretion in increasing the penalty recommended by the administrative law judge for defendant’s failure to abate building code violations, since the ALJ assessed the penalty based only on the primary violation of failure to install self-locking doors, and the commissioner noted that the absence of the doors was not the only unabated violation cited. TAXATION 35-2-8078 Global Terminal & Container Svc. v. City of Jersey City, App. Div. (6 pp.) The Tax Court’s decision upholding the city’s tax assessments of plaintiff’s commercial property is affirmed, since the record reflected striking dissimilarities among the purportedly comparable properties and plaintiff’s property which required their appraiser to make large adjustments, and the Tax Court judge was within his discretion to reject such evidence, finding it unpersuasive and lacking in probative value. FEDERAL COURT CASES ENVIRONMENT — RECOVERY OF CLEAN UP COSTS 17-7-8079 Frederick V. Dexter Jr., et al. v. Cosan Chem. Corp., et al., U.S. Dist. Ct. (16 pp.) In a case involving recovery of environmental response costs, the court grants plaintiff’s motion for a determination that prior owner of contaminated property is a “covered person” and is liable under CERCLA for mercury contamination of the site, and the fact that the prior owner discharged the hazardous substances into an underground piping system, rather than directly into the land, makes no difference in the determination. LABOR AND EMPLOYMENT — ARBITRATION 25-7-8080 N.J. State Council of Carpenters Benefit Funds, et al. v. Barrett Bldrs., et al., U.S. Dist. Ct. (20 pp.) In a case where arbitrator found for union on its allegation that defendants created a new organization to construct a restaurant for the purposes of avoiding the obligations of a prior agreement incorporating terms of a collective bargaining agreement, (1) the court holds that the arbitrator exceeded his authority to the extent that he held non-signatories liable under the CBA, and union’s motion to confirm arbitration award is denied, and, (2) while the non-signatories may be held liable under the theory of alter ego liability, the factual record has not yet developed sufficiently for summary disposition of that aspect. SECURITIES 50-7-8081 Bernardo Blatt, etc., et al. v. Merrill Lynch, Pierce, Fenner & Smith Inc., et al., U.S. Dist. Ct. (37 pp.) (1) Defendant’s motion to dismiss counts one and two of the complaint — which allege that defendant failed to register its world fund with the SEC in violation of the Investment Company Act and the Securities Act — is granted, since the claims were not asserted within the one-year limitations period, and are time-barred. (2) Defendant’s motion to dismiss the remaining counts of the complaint is denied, since, drawing all evidence favorable to the plaintiff, there is sufficient evidence to support those counts, alleging various misrepresentations and non-disclosure concerning the risks of the fund. [For publication. Avialable online in 3rd Circuit - District Court. ]

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