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Vol. 4 No. 39 Decisions Released Feb. 28, 1996 STATE COURT CASES MUNICIPAL LAW 30-3-8009 General Food Vending Inc., etc., et al. v. Town of Westfield, Law Div. (19 pp.) Municipal ordinance banning cigarette vending machines is immune from cigarette vending machine owners’ constitutional challenge inasmuch as the ordinance is a legitimate exercise of municipality’s police powers because it is reasonably related to its avowed valid public goal of preventing cigarette sales to minors. [Approved for publication Feb. 27, 1996. Available online in N.J. Full-Text Decisions. ] NEGLIGENCE — DEFAULTS 31-2-8010 Dolly Schooley v. Cooper Hosp., etc., et al., App. Div. (3 pp.) In case where plaintiff allegedly broke her tooth on a foreign object in a hamburger she ate in hospital cafeteria, default judgment should have been vacated because hospital has a meritorious defense — against an independent meat supplier — and because defendants’ attorneys were not negligent in promptly attending to the matter once it came to their attention. REAL ESTATE 34-2-8011 Larry Masi, etc. v. First Home Savs. Bank, et al., App. Div. (6 pp.) In a dispute over failed real estate ventures, the trial judge properly concluded that the rights of first refusal in one of the properties were not freely assignable because they were implicated in personal service contracts that were not fully and satisfactorily discharged. SECURITIES — ARBITRATION 50-2-8012 Philip Rizzo, et al. v. Prudential Secs. Inc., etc., App. Div. (6 pp.) Although an arbitration clause in the parties’ securities brokerage agreement is valid, the parties can be compelled to arbitrate only those matters that are within the agreement’s scope, and here, where plaintiffs’ claims concern defendant’s wrongful disclosure of plaintiffs’ account information to unrelated third parties, the claims are not embraced by the agreement and the Law Division correctly denied defendant’s motion to dismiss the action and to compel arbitration. [Approved for publication Feb. 28, 1996. Available online in N.J. Full-Text Decisions.] WORKERS’ COMPENSATION 39-2-8013 Margaret Smajda v. Panelyte Division, etc., et al., App. Div. (6 pp.) Compensation judge correctly dismissed widow’s dependency petitions based upon her husband’s death, finding that widow had knowledge that her husband suffered from job-related asbestos disease on the date of his death, and therefore her failure to file the petitions within two years after the date of death was fatal. 39-2-8014 Jean C. Charlemagne v. State of N.J., N.J. Transit, App. Div. (4 pp.) The compensation judge committed reversible error in foreclosing an employer’s attorney from using petitioner’s prior inconsistent testimony from a settlement hearing to challenge petitioner’s credibility at trial. CRIMINAL LAW AND PROCEDURE — SENTENCING 14-2-8015 State v. Robert Nicolai, App. Div. (5 pp.) The judicial obligation to enforce a legislatively mandated sentence structure for repeat offenders in cases involving driving while intoxicated would be frustrated if the defendant could avoid the statutorily required minimum sentence because the municipal court imposed an incorrect and illegal penalty on the third offense which the prosecutor failed to appeal, and defendant’s sentence is reversed and corrected to treat him as a fourth offender. [Approved for publication Feb. 28, 1996. Available online in N.J. Full-Text Decisions.] 14-1-8016 State v. Michael Blacknall, Supreme Ct. (20 pp.) Once the trial judge stated at the conclusion of the state’s case that he would not charge the jury on first-degree kidnapping by defendant because of state’s failure to provide proof, and defendant then took the stand in his own defense, the trial judge’s decision acted as an acquittal of first-degree kidnapping, double jeopardy attached, and the decision was a bar to later reinstatement of the first-degree kidnapping charge. FEDERAL COURT CASES ATTORNEYS 04-8-8017 U.S. v. Arthur Mauriello, Third Cir. (26 pp.) In a case where defendant, a disbarred lawyer, was convicted of mail fraud by virtue of his unauthorized practice of law, (1) because defendant used his special skills as an attorney in procuring clients, imposing a two-point upward adjustment for using a special skill in the commission of the offense was warranted, however, (2) fees paid by clients who received satisfactory services should not have been included in determining the measurement of loss from defendant’s fraudulent scheme, so (3) matter is remanded to determine whether defendant’s self-professed dissatisfied clients suffered actual financial loss as a result of his scheme, and, if so, in what amount, and (4) the restitution imposed is vacated. [Available online in 3rd Circuit - Appellate Court.] CIVIL PROCEDURE — SEXUAL ABUSE 07-7-8018 WGC Jr., et al. v. Roman Catholic Diocese of Paterson, et al., U.S. Dist. Ct. (6 pp.) Although normally federal courts use federal laws of procedure and state laws for substantive issues, because the state procedural statute at issue erects safeguards to protect the privacy and psyche of sexual abuse victims by not requiring them to divulge their full names in a complaint, the statute is substantive, and the magistrate’s recommendation to dismiss the complaint — for failure to comply with the federal procedural rule requiring that the full name of the plaintiff be provided in a complaint — will not be followed.

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