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Vol. 4 No. 35 Decisions Released Feb. 22, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-7958 Robert Steiner, et al. v. Mary Margaret McVeigh, App. Div. (4 pp.) Plaintiffs’ legal malpractice action was properly dismissed since defendant made numerous unsuccessful attempts to take the deposition of plaintiffs’ expert and, after three years of litigation, plaintiff sought to change experts. CONDEMNATION 44-2-7959 City of Atlantic City, etc. v. Cynwyd Invs., etc., et al., App. Div. (9 pp.) The pre-condemnation procedural safeguards of negotiation and offer required by N.J.S.A. 20:3-6 for the benefit of a prospective condemnee were unnecessary in that they already had taken place in this case, were waived by the condemnee, and would have been a needless technicality. [Approved for publication Feb. 22, 1996 Available online in N.J. Full-Text Decisions. -- Companion case to 44-2-7960 below.] CONDEMNATION — LOCAL BUDGET LAW 44-2-7960 Square Brighton Corp. Inc., etc., et al. v. City of Atlantic City, etc., et al., App. Div. (11 pp.) Ordinance adopted allowing for property condemnation did not violate the local budget law because the municipality was not obligated to expend funds or incur liability in connection with the condemned property’s acquisition due to the fact that a private party was the source of the funds. [Approved for publication Feb. 22, 1996. Available online in N.J. Full-Text Decisions -- Companion case to 44-2-7959 above.] CORPORATIONS 12-2-7961 Martha Newhouse Blau v. Continental Seasoning Realty Corp., et al., App. Div. (6 pp.) The trial court correctly adopted appraisal establishing fair market value of rental property in dispute among corporate shareholders, since the parties had agreed in an unambiguous consent order to be bound by the appraisal, but the court went beyond the consent order when it ordered the realty company to distribute the rents received from the tenant directly to the corporate shareholders. EDUCATION — EMOTIONAL-DISTRESS DAMAGES 16-1-7962 Joseph Picogna v. Bd. of Education of the Twp. of Cherry Hill, et al., Supreme Ct. (21 pp.) (1) Litigation-induced stress is not recoverable as a separate component of emotional distress damages. (2) An assistant superintendent of schools does not acquire tenure under N.J.S.A. 18A:28-5(a) after working in a school district for three consecutive calendar years unless he or she is reemployed by that district for at least one day in a fourth year.[Approved for Publication Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-2-7963 Jeannette Mary Varecha, etc. v. Robert C. Varecha, App. Div. (8 pp.) Trial judge improperly incorporated a property settlement agreement into a divorce judgment since the wife had repudiated the agreement on several occasions prior to the entry of the judgment, and there had never been a plenary hearing or judicial finding that any agreement was entered into freely and voluntarily by wife. 20-2-7964 Marilyn Bennett v. Robert Bennett, App. Div. (4 pp.) Although styling the hearing on defendant’s application for modification of the property settlement agreement as an “ability-to-pay” hearing, the trial court erroneously adopted a Lepis modification approach, and the matter is remanded for an “ability-to-pay” hearing. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7965 K.A.L. v. P.L.L. II, App. Div. (2 pp.) The trial judge correctly determined that husband had harassed wife by finding wife’s testimony more credible, believing her story that husband had used the re-dial button on his telephone more than 40 times to interrupt wife’s long-distance telephone call and verbally abuse her. LABOR AND EMPLOYMENT — BENEFITS — EMPLOYMENT MANUALS 25-2-7966 Evi Freskakis, etc., et al. v. Burns & Roe Inc., etc., et al., App. Div. (5 pp.) Where decedent/employee chose to make travel arrangements other than those offered by employer through its American Express corporate card, as explained in the employee manual, employer was not liable for additional insurance which would have been provided through the corporate card, had the employee followed the specified practice. MUNICIPAL LAW — POLICE — LEGAL FEES 30-2-7967 Galantucci & Patuto, Esqs. v. Borough of Sussex v. Sussex County Prosecutor, et al., App. Div. (8 pp.) Where municipality, recognizing that it could be liable for police officer’s legal fees if police officer was acquitted of charges against him, chose to limit its potential liability for those fees by entering into a discounted fee arrangement with a private law firm, the agreement was a binding contract and municipality is liable for those fees, despite its subsequent argument that the allegations against officer did not arise out of or were not directly related to the lawful exercise of police powers. MUNICIPAL LAW — SETTLEMENT AUTHORITY 30-2-7968 James Dickens, et al. v. City of Jersey City, et al., App. Div. (6 pp.) Since municipal assistant risk manager never advised plaintiffs’ attorney that his authority was limited and the settlement agreed to by plaintiffs’ attorney was subject to the approval of corporate counsel, who rejected the settlement, municipality is estopped from denying the settlement, since plaintiffs’ suit would now be barred by the statute of limitations, and trial judge erred in ordering summary judgment in favor of municipality. WORKERS’ COMPENSATION — REOPENERS 39-1-7969 Walter Milos v. Exxon Co., USA, Supreme Ct. (4 pp.) Employee’s participation in employer-funded voluntary program to monitor the existence or progression of asbestos-related diseases constitutes medical treatment and “payments” under N.J.S.A. 34:15-27, which extends the jurisdictional limitations period for a reopener, and the Appellate Division correctly held that employee’s reopener petition was not time-barred. (Approved for Publication. Available online in N.J. Full-Text Decisions. For App. Div. opinion, see DDS No. 39-2-5540 in Alert dated May 2, 1995. CRIMINAL LAW AND PROCEDURE 14-2-7970 State v. Donald S. Phillips, App. Div. (7 pp.) Where defendant initiated a conversation with a police officer, and specifically asked the officer about his knowledge of a crime, and where the officer simply responded with truthful answers to defendant’s questions, the conversation was not the functional equivalent of a police interrogation, and the judge erred in suppressing inculpatory statements given by defendant in the course of the conversation. FEDERAL COURT CASES CIVIL PROCEDURE — CASE MANAGEMENT 07-7-7971 Chiropractic Alliance of N.J., etc., et al. v. Lewis Parisi, et al., U.S. Dist. Ct. (12 pp.) The court correctly denied defendants’ summary judgment motion because it was filed outside of the dispositive motion deadline that had been established by the magistrate judge’s scheduling order, and any reliance by defendants on a purported extension agreement with the plaintiffs was unreasonable and had no court approval. [For publication. Available online in 3rd Circuit - District Court.] INTELLECTUAL PROPERTY 53-7-7972 Linear Dynamics, Inc. v. A.H. Harris & Sons, Inc., et al., U.S. Dist. Ct. (7 pp.) Magistrate judge’ds order denying defendant’s belated motion for an extension of time to initiate discovery through document requests and interrogatories is affirmed as neither clearly erroneous nor contrary to law, as defendant had ample time to commence and conduct discovery and has not shown any persuasive reason why it failed to act. PHYSICIAN/PATIENT — H.M.O. LIABILITY 29-7-7973 John Carty, et al. v. Health Ins. Plan of Greater N.J., et al., U.S. Dist. Ct. (12 pp.) (1) Since plaintiffs’ experts trace the first deviation in medical care to a date after which one doctor’s only contact with plaintiff occurred, nothing that this doctor could have done reasonably could have been the proximate cause of plaintiff’s injuries, and summary judgment is granted to that doctor, and, (2) summary judgment also is granted to the defendant health maintenance organization, since there is no evidence that the HMO controlled the manner in which the medical group or its doctors provided health care, and the medical group and doctors therefore were independent contractors of the HMO, and the HMO is not vicariously liable for any alleged negligence caused by the group or its employees.

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