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Vol. 4 No. 33 Decisions Released Feb. 20, 1996 STATE COURT CASES AUTOMOBILES 05-2-7921 State v. Nancy J. David, App. Div. (10 pp.) (1) Although driver did not have proof of insurance at the time she was stopped by a police officer, where she testified that she understood that her son, the car’s owner, had registered the car and obtained the insurance, and where she later produced evidence of insurance coverage with an appropriate effective date, the protective purpose of N.J.S.A. 39:6B-2 is satisfied, and the state failed to prove that driver “knew or should have known” that the vehicle she was driving was not covered. (2) Although the court rejects driver’s argument that vehicle ownership is a required element to sustain a conviction for driving an unregistered motor vehicle, the state failed to sustain its burden that driver knew or should have known that the vehicle she was driving was unregistered. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE — SPECIAL CIVIL PART 07-2-7922 R.H. Lytle Co. v. Swing-Rite Door Co. Inc., App. Div. (4 pp.) Although the Supreme Court has approved the practice of “short calendaring” — scheduling trials within the 100-day special civil part discovery period — the special civil part mistakenly exercised its discretion in this case by denying plaintiff’s adjournment request to complete discovery within the allowable time frame, since such applications should be given liberally. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] CORRECTIONS — PAROLE 13-2-7923 James V. Vincelli v. N.J. State Parole Bd., App. Div. (9 pp.) Parole Board’s denial of inmate’s parole application and its imposition of a seven-year future eligibility term is remanded because, in light of the medical evaluations, there is an inadequate explanation by the Parole Board for its conclusory statements that defendant has not reached his rehabilitative potential, that the punitive aspect of his sentence has not been satisfied and that there is a substantial likelihood that he will commit another offense if paroled. EDUCATION 16-2-7924 James B. Healy v. Fairleigh Dickinson Univ., et al., App. Div. (10 pp.) Trial judge properly applied the rules of contract construction in arriving at her conclusion that de facto tenure was not in the AAUP contract and handbook provisions and that their interpretation was a legal question that only the court could resolve. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-2-7925 James Moss v. Anne C. Nedas, etc., App. Div. (11 pp.) Motion judge properly exercised her discretion in entering an order terminating father’s obligation to contribute further to his daughter’s college tuition costs, due to the daughter and her mother’s failure to communicate to the father various changes in schools, which deprived him of input into the decisions and the opportunity to obtain financial aid for the daughter. INSURANCE — SETTLEMENTS 23-2-7926 Shalini Mehrotra, et al. v. Jill Meloni, et al., App. Div. (3 pp.) Judge improperly denied motion to set aside consent judgment since she failed to address the threshold issue of whether the insurance company attorneys had the actual authority to settle the claim. INSURANCE — VERBAL THRESHOLD 23-2-7927 George McMullen v. Harvey Lee Fornay, et al., App. Div. (3 pp.) By accepting the lessee/owner’s duty to obtain insurance for his leased vehicle, the lessor stands in the owner’s shoes for purposes of the verbal threshold statute, and is subject to the statute despite his failure to insure the vehicle and his protestations that he is not subject to the threshold, and, since he did not meet the verbal threshold in this case, the trial judge properly granted summary judgment to the defendant. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7928 Theresa Bani v. Bd. of Review, App. Div. (2 pp.) The fact that the claimant received severance pay following termination of her employment did not excuse her from the duty to comply with applicable statutes and regulations, and her failure to file a claim and appear in person at the claims office barred her unemployment-benefits claim for the weeks in question. 25-2-7929 Andrea Gerber v. N.J. Dept. of Labor Bd. of Review, App. Div. (3 pp.) Where employee made a strategic but voluntary decision, based upon her assessment of the potential consequences of proceeding with a tenure hearing, to resign, she was properly held ineligible for unemployment benefits. LANDLORD/TENANT 27-2-7930 Sixth Garden Park Ltd. Ptshp. v. Chesilhurst Rent Control Bd., et al., App. Div. (5 pp.) Owner of mobile home park was wrongly denied rent increase by the mayor and town council’s erroneous application of the rent control ordinance, and application for rent increase is remanded for further consideration. LAND USE 26-2-7931 Van Houten-Burroughs Dev., etc. v. Twp. of Wayne, etc., App. Div. (10 pp.) It was not the trial judge’s discretion on zoning-ordinance challenge to decide what was the best land use for a particular parcel burdened by the ordinance, but only whether the municipal designation could be said to advance the general purpose of zoning in a manner consistent with the master plan without constituting a confiscation and without otherwise infringing on due process and equal protection rights, and, since plaintiff did not carry its burden to overcome the strong presumption of the ordinance’s validity, judge erred in holding that zoning complained of was arbitrary and capricious. NEGLIGENCE 31-2-7932 Marianne Kiegel v. Fred W. Kiegel Jr., et al., App. Div. (8 pp.) The judge’s jury instruction, particularly regarding defendant’s strict liability for running a red light, had the clear capacity to produce an unjust result and requires reversal. 31-2-7933 Jacqueline Leardo, et al. v. Vincent DeRosa Inc., et al., App. Div. (5 pp.) Based upon 58-year- old plaintiff’s wrist and ankle fractures, her diminished healing powers and the extensive physical therapy required to return her to mobility, her three- and-one-half months out of work and wage loss, and her continuing pain, the jury’s damages verdict — which is one-third less than the wage loss alone — shocks the conscience and is reversed, and a new trial on damages only is ordered. 31-2-7934 James R. Wolfsgruber Sr., et al. v. Anthony J. Lee Jr., et al., App. Div. (4 pp.) The trial judge correctly refused to charge the jury concerning the duties owed to an invitee, since, first, the issue was not one of the condition of defendant’s property, but of plaintiff’s activity in attempting to cut down the tree after fully appreciating the risks, and, second, the plaintiff was a licensee, rather than an invitee on defendant’s property. PENSIONS — ERISA — SURETY BONDS 56-2-7935 Bd. of Trustees of Operating Eng’rs, etc. v. First Indem. of Am. Ins. Co., et al.; Bd. of Trustees of Operating Eng’rs, etc. v. Int’l Fidelity Ins. Co., etc., App. Div. (15 pp.) The preemption clauses of the Employment Retirement Income Security Act (ERISA) do not foreclose a Law Division action to recover unpaid pension benefits contributed through surety bonds issued under the N.J. Public Works Bond Act. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] PRODUCT LIABILITY 32-2-7936 Richard Mort, et al. v. Besser Co., et al., App. Div. (14 pp.) Although jury’s liability verdict against the sole remaining defendant in this design defect case was not fatally inconsistent nor against the weight of the evidence, and is affirmed, since there was no evidence before the jury concerning the liability of the two settling defendants, the percentage of fault assessed against those defendants must be vacated. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] REAL ESTATE — JURISDICTION 34-2-7937 Roger B. Jacobs, et al. v. Ocean Hill Properties, Inc., etc., App. Div. (6 pp.) Plaintiffs’ action — seeking to rescind their purchase of an unimproved North Carolina lot based on seller’s misrepresentations — was improperly dismissed on the ground of forum non conveniens, since seller has not demonstrated that its hardship in defending in the forum of plaintiffs’ choice is significantly more compelling than plaintiffs’ hardship would be in filing suit in another available forum, or that public interest factors militate strongly in favor of that other forum. CRIMINAL LAW AND PROCEDURE 14-2-7938 State v. Richard S. Storm, App. Div. (4 pp.) In a case where defendant was convicted of failing to stop at a stop sign, the judge’s findings are supported by sufficient credible evidence and there is no reason to disturb them, since the case was decided on credibility determinations, and the judge simply found the police officer’s testimony more credible than defendant’s. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] Editor’s Note: The Appellate Division has advised that the case of State v. Richard S. Storm, DDS No. 14-2-7938 in the Alert dated February 20, 1996, was erroneously stamped “Approved for Publication” and should not have been so designated. Please note the correction on your copy of the Alert. 14-2-7939 State v. Raymond Tango, App. Div. (9 pp.) (1) Cellular telephone calls of the kind intercepted in this case were covered by the 1968 Federal Wiretap Act, and not affected by the Electronic Communications Privacy Act of 1986 and the New Jersey conforming legislation promulgated in 1993; therefore the judge properly refused to suppress the evidence obtained through the authorized wiretap, and (2) the fact that the cellular phone itself was not located at a specified street address over the entire period of the authorized wire tap does not invalidate the order, since the authorization order specified the required information to the extent practicable under the circumstances, which is all that is required under the law. [Approved for publication Feb. 20, 1996. Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES BANKRUPTCY 42-8-7940 In re: Continental Airlines; Nationsbank of Tenn., N.A., etc., et al., Appellants, Third Cir. (25 pp. — includes dissent) Although the trustees present interesting issues of first impression concerning adequate protection, the district court correctly dismissed the trustees’ appeals to it as moot, since substantial consummation of the debtor’s reorganization plan had already occurred, upon which third parties — here, the investors in the reorganization — had relied. CONDEMNATION — JURISDICTION 44-8-7941 Barry Brown, et al. v. Leo Francis, etc., et al.; Govt. of the Virgin Islands v. 0.459 Acres of Land, etc., et al., Third Cir. (15 pp.) The district court erred when it considered the Virgin Islands government for the purposes of establishing diversity of citizenship jurisdiction, since a state cannot be considered a citizen for such purposes, and a territory is considered a state pursuant to 28 U.S.C. Sec. 1332(d), therefore the district court did not have jurisdiction over either the government’s eminent domain case or the trustees’ inverse condemnation, and these are remanded to territorial court. DEBTOR/CREDITOR 15-7-7942 Feliks Sadowski v. Natl. Credit Union Admin. Inc., et al., U.S. Dist. Ct. (12 pp.) In a case where plaintiff alleges the credit union committed various violations of the FIRREA notice requirements (1) since counsel for the credit union administration failed to file an answer through inadvertence, which mistake was understandable due to the substantial similarity between this action and the one that had been pending before another judge, the credit union’s motion to vacate default is granted, and, (2) since the vast majority of factual allegations in this complaint were also contained in that other action, which was dismissed with prejudice by the other judge, the credit union’s motion to dismiss this case is granted based upon the doctrine of claim preclusion, and, (3) although not requested by the credit union, sanctions are imposed upon the plaintiff. REAL ESTATE 34-7-7943 Sinis Inc., et al. v. M. Alfieri Co. Inc., et al., U.S. Dist. Ct. (23 pp.) (1) Since factual issues exist as to the intent of the parties to be bound by the 1984 memorandum agreement, the court must deny both plaintiff’s motion seeking a declaration that the agreement is unenforceable, and defendant’s motion seeking a declaration that the agreement is enforceable, and (2) since factual issues exist as to whether plaintiff made a “clear and definite” promise to exchange land with defendant, defendant’s cross-motions for summary judgment based upon promissory and equitable estoppel are also denied. CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-8-7944 David Lee Yohn v. William J. Love, etc., Third Cir. (34 pp.) When the chief justice of the Pennsylvania supreme court became involved ex parte in defendant’s criminal trial — in a ruling on the admissibility of evidence — such involvement violated defendant’s right to procedural due process under the 14th amendment, and his right to a fair trial under the Sixth Amendment, and, since the error was not harmless, the district court properly granted the defendant’s writ of habeas corpus.

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