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Vol. 4 No. 37 Decisions Released Feb. 26, 1996 STATE COURT CASES There were no state opinions released today. FEDERAL COURT CASES ATTORNEY/CLIENT — INSURANCE 04-7-7983 Sime Michael Dadic, et al. v. The Travelers Indemnity Co., et al., U.S. Dist. Ct. (44 pp.) Summary judgment is granted to law firm (1) on legal malpractice claim, since evidence shows firm breached no duty by properly settling one state court case and receiving a substantial settlement offer in another, which plaintiffs rejected, (2) on allegation that firm committed a “fraud upon the court,” since no case law was shown establishing a private right of action for damages, (3) on “fraud and deceit” claim, since plaintiffs showed no evidence that firm knowingly made misrepresentations of fact, and (4) on claim that firm breached its contract by moving to be removed as counsel, since the plaintiffs had the opportunity to respond to the motion and failed to do so. Summary judgment is granted to insurance company, inter alia, (1) on plaintiffs’ claim for “bad faith refusal to pay benefits” since several medical reports indicated that plaintiff did not need additional medical treatment for accident-related injuries, and thus, there was a reasonable basis for the denial of further benefits, and (2) on plaintiffs’ breach of contract claim, since the insurance company, as servicing carrier for the NJAFIUA, is immune from a suit brought pursuant to the policy. INSURANCE — DISABILITY — REMAND 23-7-7984 Ahmad Nizar Kahf, M.D. v. The Equitable Life Assurance Society of the United States, et al., U.S. Dist. Ct. (10 pp.) (1) Plaintiff’s motion to remand complaint for disability insurance benefits is granted, since diversity of citizenship must be shown to have existed at the time of the filing of the petition for removal, and the only basis for such diversity was destroyed when, by defendant’s own admission, its defendant/agent moved to N.J. prior to the filing of the removal notice, and (2) defendants’ motion to consolidate this case with another disability case plaintiff filed against another insurer is denied, since that case relies on federal question jurisdiction, whereas the case against Equitable has neither federal question nor diversity jurisdiction. LAND USE 26-7-7985 Marilyn Battaglia v. Twp. of Wayne, et al., U.S. Dist. Ct. (12 pp.) Summary judgment is granted to municipality on the counts of complaint alleging constitutional violations in municipality’s failure to act on her preliminary site plan approval application, since the evidence shows (1) that the planning board refused to act on the application not because of some insidious and illegal plan to undermine the value of plaintiff’s land, but rather because her application was incomplete, and (2) that the planning board had principled justifications both for its opposition to the state’s proposed condemnation of plaintiff’s land and for her application for a stream encroachment permit. LAND USE — GROUP HOMES — FAIR HOUSING 26-7-7986 Hope House, Inc., etc., et al. v. Mayor and Council of the Borough of Bergenfield, etc., et al., U.S. Dist. Ct. (32 pp.) Preliminary injunctive relief is granted to plaintiffs — restricting municipal defendants from further obstructing or delaying the use of plaintiffs’ property as an Alzheimer’s group home — since (1) plaintiffs have shown that they are likely to succeed on the merits of their claim that municipality discriminated against them on the basis of handicap in denying them the requisite permits to renovate their property for such use, (2) the prospective residents will be irreparably harmed by denial of injunctive relief, since they will be denied an appropriate living environment, (3) the defendants have not shown that they will suffer any harm from the issuance of a preliminary injunction, and (4) the public interest weighs in favor of the relief. However, since the municipality has stated that the plans submitted for renovations were violative of the Building Officials and Code Administrators International, Inc. code, the matter is remanded for a non-discriminatory hearing on the code issues. SECURITIES 50-7-7987 Securities and Exchange Commission v. Hughes Capital Corp., et al., U.S. Dist. Ct. (21 pp.) Where court has already granted summary judgment to plaintiff as to the liability of each of defendant for orchestrating a sham public offering, the court (1) grants plaintiff’s motion for disgorgement of the profits of the scheme, since plaintiff has established, and defendants have not adequately refuted, that the disgorgement figure is a reasonable approximation of unlawful profits, but (2) denies plaintiff’s motion for restitution of investor losses, since plaintiff has not identified any case in which a court has awarded restitution in addition to disgorgement. Approved for publication: 50-7-7987 Securities and Exchange Commission v. Hughes.

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