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Vol. 4 No. 31 Decisions Released Feb. 15, 1996 STATE COURT CASES ARBITRATION — DE NOVO TRIAL REQUEST 03-2-7890 Mary Jean Feuerstack, et al. v. Taj Mahal Casino, et al., App. Div. (4 pp.) Where attorney placed a file on his partner’s secretary’s workpile, assuming that his partner would instruct the secretary to file a de novo trial request, such failure to properly supervise the secretary does not constitute excusable neglect sufficient to justify an extension of the filing time limit. CONTRACTS — WITNESSES 11-2-7891 Marino Mraz v. Martino Hroncich, et al., App. Div. (3 pp.) In an action for payment brought by a musician against the members of his former band, the trial judge erred in refusing to admit the testimony of a current band employee on the basis that he was not an independent witness, since the fact that a witness may have some interest in the outcome of the trial because he is an employee of the party calling him does not disqualify him, and a new trial is required. CONTRACTS — EXCUSABLE NEGLECT FOR VACATING DEFAULT 11-2-7892 Taskin Atilgan, et al. v. Skyline Devel. Co., Inc., et al., App. Div. (4 pp.) Turning this contract matter over to an attorney did not relieve the client of responsibility for reasonable diligence, and did not constitute excusable neglect sufficient to vacate a default, especially where the client also vaguely alleged, but did not specify, that “family problems” kept him from following up on the case. FAMILY LAW 20-2-7893 Viola Furey v. Gerard Furey, App. Div. (5 pp.) The motion judge properly interpreted the meaning and intent of the terms of a divorce judgment in finding that the wife’s obligation to pay certain debts was not contingent upon the sale of the marital residence, and the language regarding the sale merely described a convenient source and time from which the payment could be made. INSURANCE — PROXIMATE CAUSE 23-2-7894 David L. Jensen v. N.J. Auto. Full Ins. Underwriting Ass’n, App. Div. (3 pp.) Even assuming that the N.J.A.F.I.U.A. erroneously canceled plaintiff’s car insurance, it was not the proximate cause of plaintiff’s ultimate loss when he chose to drive his uninsured motorcycle because of the canceled car insurance and was involved in an accident; summary judgment in favor of the N.J.A.F.I.U.A. was proper. INSURANCE — VERBAL THRESHOLD 23-2-7895 Judith K. Carr, et al. v. Charlotte Palen, App. Div. (3 pp.) Dismissal was proper because, although the accident in question exacerbated plaintiff’s soft-tissue injuries from an earlier accident, the injuries did not trigger any of the verbal-threshold statute categories, and plaintiff also failed to offer a comparative analysis of the two separate accidents as required by Polk v. Daconceicao, 268 N.J.Super. 568 (App. Div. 1993.). 23-2-7896 Louis Scott Whitaker, et al. v. Ronald A. Devilla, et al., App. Div. (5 pp.) The Legislature’s language in the Deemer Statute, N.J.S.A. 17:28-1.4 was inadvertently overbroad and does not bar the claim of a nonresident plaintiff who had elected “no threshold” coverage with her insurance company, which is licensed to do business in New Jersey. [Approved for publication Feb. 15, 1996. Available online in NJ Full-Text Decisions.] LAND USE 26-2-7897 Stanley Rhe was properly denied food stamp benefits because she was financially dependent upon her mother, and she and her child no longer constituted a separate “household” for food stamp purposes. CRIMINAL LAW AND PROCEDURE 14-2-7899 State v. William H. Green, App. Div. (7 pp.) Where defendant, pursuant to a plea bargain, pleaded guilty to a municipal reckless-driving charge stemming from his alleged automobile theft and flight from police, and then later moved to dismiss the state court indictment against him for theft, arguing that the prosecution was barred by double jeopardy since the charges stemmed from the same events, the judge erred in granting the defendant’s motion, since the reckless driving and theft charges do not involve the same elements or evidence. FEDERAL COURT CASES BANKRUPTCY 42-8-7900 In re: Lloyd Sec. Inc., Debtor; Arthur Alperstein, et al., Appellants, Third Cir. (12 pp.) Because the Securities Investor Protection Act incorporates Bankruptcy Code Section 503 and requires that a SIPA proceeding be treated like a Chapter 7 bankruptcy case, the district court properly denied a motion for fees and costs brought by customers of the debtor — a failed securities dealer — since customer expenses are not recoverable in a Chapter 7 proceeding. CIVIL RIGHTS — CORRECTIONS 46-7-7901 Emmett W. Caldwell v. Warden Green, et al., U.S. Dist. Ct. (10 pp.) Inmate’s claims of constitutional and tort violations by prison officials and medical personnel are dismissed for failure to submit proofs that substantiate the charges, and inmate’s motion to amend his complaint to add additional claims is denied, because the claims fail to state a claim under Section 1983 and would therefore be futile. COMMERCE — REMAND 09-7-7902 John M. McGrath, et al. v. James Bong, et al., U.S. Dist. Ct. (9 pp.) Since the named defendants who did not consent to removal to federal court were not served at the time the served defendant did remove the case, their consent was not required for proper removal, and the plaintiffs’ motion to remand — alleging that the removal was defective because all defendants did not consent — is denied. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-7903 Miguel Bustamonte v. Fed. Bronze Prods. Inc., U.S. Dist. Ct. (45 pp.) Although plaintiff has made out an arguable prima facie case under the Age Discrimination in Employment Act, the employer has offered its downsizing as a legitimate nondiscriminatory business reason for plaintiff’s termination, and, since plaintiff has offered no evidence to show that the proffered reason was pretextual, his case is dismissed; since there is no allegation of or basis for a finding of diversity jurisdiction, the federal court cannot hear, and must dismiss, the remaining state law claims.

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