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Vol. 4 No. 38 Decisions Released Feb. 27, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-7988 Richard E. Manthey v. Francis X. Hermes, et al., App. Div. (5 pp.) Although legal malpractice case asserted different legal theories of liability, all claims were based on the attorney’s purported conflict of interest, and since two judges had previously ruled that the attorney had no such conflict, the suit was properly dismissed on collateral estoppel grounds. CONSUMER PROTECTION 09-2-7989 BJM Insulation & Construction, Inc. v. Constance Evans, App. Div. (5 pp.) Since the consumer fraud act mandates an award of attorneys’ fees irrespective of whether a party raises the act as an affirmative claim or as a defense, denial of attorneys’ fees to defendant granted summary judgment was improper. [Approved for publication Feb. 27, 1996. Available online in N.J. Full-Text Decisions.] CORPORATIONS 12-2-7990 Aristotle Catsouphes v. Atex Associates, Inc., et al., App. Div. (9 pp.) The traditional reasons for the imposition of personal liability upon a shareholder do not apply to appellant, who never agreed to that part of a prior consent order providing that the shareholders would pay for receiver’s services if corporation was unable to pay. [Approved for publication Feb. 27, 1996. Available online in N.J. Full-Text Decisions.] CORRECTIONS 13-2-7991 Omari Atiba v. Willis E. Morton, App. Div. (7 pp.) A review of internal affairs reports — which summarized the confidential information utilized by the management control unit review committee in determining inmate’s placement — reveals only that the inmate was possibly a member of a destructive group, and a hearing should be held to further develop the facts to determine fairly whether the inmate should still be retained in closed custody after five years. ENVIRONMENT 17-2-7992 In the Matter of the Issuance of an Individual Freshwater Wetlands Permit, etc., App. Div. (7 pp.) The Department of Environmental Protection did not err in granting permit to county that authorized the fill of wetlands for the ultimate construction of a prison, since DEP thoroughly explored all of the possible locations that the county had investigated and properly found that the county had rebutted the statutory presumption of the existence of a practicable alternative site and that the construction of the prison on the site was in the public interest. FAMILY LAW 20-2-79 93 Angelo DiBartolo v. Jacqueline DiBartolo, App. Div. (4 pp.) Husband’s motion to modify his alimony obligation was correctly denied since the decline of his gross income alone did not constitute a change of circumstances sufficient to warrant a reduction where his lifestyle had basically not changed. FAMILY LAW — ERISA 20-4-7994 Henry G. Groh v. Theresa P. Groh, Chancery Div. (10 pp.) Since ERISA supersedes any and all state laws insofar as they apply to any employee benefit plan unless a qualified domestic relations order (QDRO) has been entered, and since none was entered in this case because the husband died during the pendency of the divorce proceedings, ERISA governs the distribution of the husband’s pension to the wife as designated beneficiary, and the husband’s estate has no claim to the benefits, despite husband’s intentions, expressed before he died, to change his beneficiary . [Approved for publication Feb. 23, 1996. Available online in N.J. Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-7995 Mark Sherry v. John J. Buonansonti, et al., App. Div. (6 pp.) Plaintiff’s subjective complaints of pain, which the doctor indicated were “suggestive of degeneration,” do not meet the requirement of objective, credible evidence of injury, and plaintiff was unable to show that the injury had a significant or serious impact on his life where his only limitations were in occasional swimming and dancing. [Approved for publication Feb. 27, 1996. Available online in N.J. Full-Text Decisions.] 23-2-7996 Francisco Laborde, et al. v. Geraldine McCarthy, et al., App. Div. (4 pp.) Plaintiff failed to prove that his injuries had a sufficiently serious adverse impact on the quality of his life, where his only complaints consisted of difficulty sleeping, intermittent headaches and occasional numbness in his hand while driving. LANDLORD/TENANT — INSURANCE 27-3-7997 Continental Ins. Co., etc. v. Omar Boraie, Law Div. (11 pp.) Insurer subrogated to rights of insured tenant may not recover fire loss against landlord for the latter’s negligence in the maintenance of the sprinkler system, since tenant violated the lease provision that required it to procure a waiver of subrogation clause in its insurance policy and thus had no right to pursue the landlord directly. [Approved for publication Feb. 23, 1996. Available online in N.J. Full-Text Decisions.] NEGLIGENCE — INSURANCE CARRIERS 31-2-7998 Jean Borkan, et al. v. Belle Mead Farmers Co-operative Assn., App. Div. (5 pp.) The judge correctly refused to vacate default judgment against defendant in slip and fall case where plaintiffs had effectuated valid service upon defendant and, notwithstanding the failure of communication between the defendant and its insurance carrier, no sufficient explanation had been advanced for the failure to defend; however judgment is amended to issue a credit for the amount which the carrier had already paid to plaintiffs for medical bills before the litigation was filed. PUBLIC RECORDS 52-2-7999 Harry B. Demopoulos v. Chandi Duke Heffner, et al., App. Div. (4 pp.) Order correctly dismissed plaintiff’s verified complaint demanding access to sealed discovery produced in a prior court action, since no public interest would be vindicated by releasing the sealed documents, and plaintiff was simply attempting to supplement his own discovery in a New York will contest action. REAL ESTATE — FORECLOSURE 34-2-8000 Farm Credit of North Central Jersey, ACA v. Francis E. Batcha, et al., App. Div. (6 pp.) Where defendants, in a stipulation of settlement of a prior foreclosure action with plaintiff, reaffirmed their indebtedness to plaintiff on the very notes which were involved in this mortgage foreclosure action, without set-off, defense, claim or recoupment, they are barred by the preclusionary principles of collateral estoppel from challenging these notes or asserting any set-off, defense, claim or recoupment with respect to the current foreclosure action. 34-2-8001 GE Capital Mortgage Services, Inc. v. Chrysler First Financial Services, et al., App. Div. (18 pp.) Although the judge may not have had jurisdiction to entertain second mortgagee’s motion to set aside sheriff’s sale, because of the intervening rights of innocent third-party purchasers for value at that sale, the judge correctly ordered first mortgagee to pay damages to second mortgagee, because the first mortgagee failed to prove that it properly served notice of the sheriff’s sale on the second mortgagee. WILLS, ESTATES, AND TRUSTS 38-2-8002 In the Matter of the Agreement of the Irrevocable Trust of Carmelo Maimone, etc., App. Div. (12 pp.) (1) Recognizing that granting one beneficiary’s counsel fee application would essentially exhaust the trust, the chancery judge correctly decided that it would be unfair to the purpose of the trust to equalize distribution among the three beneficiaries, and denied such application, and (2) although, on its face, writ in favor of law firm was beyond its one-year limitation, the judge did not err in ordering later levy on the writ, because the writ could not have been enforced prior to court approval of the trustee’s proposed distribution plan, when the beneficiaries’ interests would have been fixed and amounts ascertained. CRIMINAL LAW AND PROCEDURE 14-2-8003 State v. Jermaine Bryant, App. Div. (14 pp.) The judge’s instructions to the jury on provocation and the use of deadly force in self defense were proper and defendant’s convictions are affirmed. [Approved for publication Feb. 27, 1996. Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES ARBITRATION — CONTRACTS 03-7-8004 Smith & Loveless v. Firmenich, Inc., U.S. Dist. Ct. (4 pp.) In dispute over defects in plaintiff’s construction of a wastewater treatment plant for defendant, arbitrators’ decision in favor of plaintiff is confirmed, since defendant does not provide any evidence that the arbitrators acted in manifest disregard of the law but simply argues that because it produced evidence which was at variance with the arbitrators’ decision, that decision was not supported by the record. ARBITRATION — LABOR AND EMPLOYMENT 03-7-8005 Local Union 1342, Essex Cy. and Vicinity Carpenters and Millwrights, et al. v. Integrated Constr. Co., Inc., U.S. Dist. Ct. (12 pp.) Although construction company was not bound by the terms of the collective bargaining agreement as if it were a party thereto, the memorandum of agreement by which the company was bound incorporated parts of the CBA by reference, and it was, therefore, permissible and within the scope of his authority for the arbitrator to look to the CBA as a source of guidance in fashioning an appropriate remedy for the company’s failure to make fringe benefit contributions. 03-7-8006 Local 877, Intl. Brotherhood of Teamsters v. Bayway Refining Co., U.S. Dist. Ct. (12 pp.) Employer is granted summary judgment confirming arbitrators’ decision denying union member’s grievance, because the arbitrators’ finding that the applicable progression agreement was proper and collectively negotiated by the union and employer was rationally based and cannot be overturned, and employer did not violate union member’s recall rights under the applicable documents. GOVERNMENT — ELECTIONS 21-7-8007 George Lahood v. Christine Todd Whitman, et al., U.S. Dist. Ct. (10 pp.) On independent candidate’s complaint alleging constitutional violations when he was excluded from televised debates, (1) summary judgment is granted to Election Law Enforcement Commission since, although the First Amendment prohibits the government from abridging freedom of speech, it does not mandate that the government provide a candidate with a televised debate and the candidate did not meet the statutory prerequisites for participation in the debates, and (2) summary judgment is also granted to the governor, since she was a private citizen at the time of the debates, and her actions were not constrained by the First Amendment, and, further, since she was under no statutory or contractual obligation to debate the independent candidate. JURISDICTION — CONTRACTS 24-7-8008 First Page Associates, Inc., etc. v. M.A. Angeliades, Inc., etc., U.S. Dist. Ct. (15 pp.) Defendant, by soliciting a contract of substantial size, complexity and duration with a known N.J. resident, which obviously contemplated partial performance within the state of N.J., clearly placed itself on notice of amenability to suit in N.J., and defendant’s motion to dismiss contract dispute for lack of personal jurisdiction is denied.

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