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Vol. 4 No. 30 Decisions Released Feb. 14, 1996 STATE COURT CASES CIVIL RIGHTS 46-2-7872 Mercedes C. Lopez v. ABF Freight System, Inc., App. Div. (4 pp.) Since evidence indicates that the employer made a legitimate business decision not to rehire plaintiff, based on her prior problems in job performance and because there was a more qualified applicant for the position, the Division of Civil Rights correctly found no probable cause to credit plaintiff’s allegations of handicap and national origin discrimination. CORRECTIONS — MEGAN’S LAW 13-2-7873 A.F., et al. v. William H. Fauver, etc., App. Div. (7 pp.) Department of Corrections’ amendment to N.J.A.C. 10A:4-4.1(a) — adding “refusal to register as a sex offender” to list of punishable acts by an inmate — is neither vague nor unconstitutional and is affirmed. [Approved for publication Feb. 14, 1996. Available online in NJ Full-Text Decisions.] DEBTOR/CREDITOR — BANKING 15-2-7874 Remington Investments, Inc. v. Michael Davis, et al., App. Div. (12 pp.) Since D’Oench, Duhme doctrine — which outlaws secret agreements that diminish what appear to be bank assets on which regulators are entitled to rely — protects assignee of distressed loans from FDIC, trial court properly struck debtors’ defense that original creditor bank made representations about how the subject loans would be pursued for collection. [Approved for publication Feb. 14, 1996. Available online in NJ Full-Text Decisions.] FAMILY LAW — CUSTODY 20-2-7875 Frances D. Segale v. George R. Segale, App. Div. (10 pp.) Provision of divorce judgment changing custody from father to mother is remanded since the children, who had lived with the father for nearly two years due to a prior court proceeding, were found to be “remarkably” well adjusted and happy, and the judge neither discussed thoroughly the children’s special needs nor stated with whom they preferred to live nor ordered a current probation department investigation. FAMILY LAW — REHABILITATIVE ALIMONY 20-2-7876 Lena Heinl v. James Howard Heinl, App. Div. (18 pp.) Among other errors requiring remand, the judge failed to articulate fully why the relatively short marital duration required an award of permanent, rather than rehabilitative, alimony, which seriously should have been considered here given the wife’s young age and ability to work. [Approved for publication Feb. 14, 1996. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7877 Mark W. Ford v. Bd. of Review, App. Div. (6 pp.) Although the court does not wish to establish, as a matter of general policy, that an unemployed worker automatically becomes disqualified for benefits if he seeks to augment his income by establishing a temporary private practice or consulting business while actively seeking employment, the facts of this case clearly show that plaintiff — an attorney who carried on a solo practice while he was seeking a law job — was disqualified during that period of time.[Approved for publication Feb. 14, 1996. Available online in NJ Full-Text Decisions.] LANDLORD/TENANT — CONSTRUCTIVE EVICTION 27-2-7878 Wayne K. Thomas v. Carmen Socarras, App. Div. (3 pp.) Where commercial premises were deteriorating, causing tenant to loseay after the accident that the property was not owned by the city, his application to file a late notice of claim should not have been denied. PHYSICIAN/PATIENT — CHIROPRACTORS 29-2-7880 Maryellen Underwood, et al. v. Robert Hereema, App. Div. (11 pp.) Trial judge properly excluded plaintiff’s expert’s opinion that chiropractor deviated from the accepted standard of care by performing cervical manipulations without the benefit of cervical x-rays, since there was no showing that plaintiff suffered any damage resulting from these manipulations, and the testimony was therefore both irrelevant and at the same time highly prejudicial against the chiropractor. PUBLIC EMPLOYEES 33-2-7881 Phyllis Oberti, etc. v. The Borough of Wanaque, etc., et al., App. Div. (10 pp.) Although res judicata applies to the question of decedent’s status as a permanent employee or a provisional employee, there are still material issues of fact as to the amount of benefits defendant may owe to the decedent, and summary judgment should not have been granted against plaintiff on this issue. REAL ESTATE — FORECLOSURES 34-2-7882 Edward Simonson, et al. v. Z Cranbury Associates, etc., App. Div. (8 pp.) In an admeasurement trial after entry of a foreclosure judgment, the Chancery judge correctly held that defendant/mortgagor was entitled, under the terms of the documents, to the value of 20.4 acres of the tract because its right of release thereunder had accrued prior to the default of its mortgage obligations, and the parties did not specifically condition the release upon subdivision of the premises. [Decided Feb. 14, 1996, Approved for publication Jun. 4, 1997] TORTS — TRESPASS 36-2-7883 N.J. Pulverizing Co. v. Priscilla Ann Oughton, et al., App. Div. (6 pp.) Among other issues, (1) proximate cause of the harm to plaintiff was shown when trial judge specifically found that the negligent clearing of plaintiff’s property by the “clearing defendants” confused the property lines and misled the “excavating defendants” into wrongfully trespassing and removing sand and gravel from plaintiff’s property, (2) the court exercises its original jurisdiction to hold that all defendants are liable as joint tortfeasors for the damages caused by plaintiff by the wrongful excavation and removal, and (3) the matter is remanded for allocation of the damages among the defendants. WILLS, ESTATES AND TRUSTS — GUARDIANSHIPS 38-2-7884 In the Matter of W.C.B., an alleged incompetent, App. Div. (4 pp.) Although court rules provide that counsel be appointed for an alleged incompetent in an action for appointment of a guardian, the rules do not mandate that new counsel be appointed where, as here, a primary guardian and co-guardian had already been appointed, and the issue was simply whether the co-guardian should be substituted for the primary guardian for reasons of the primary guardian’s health. CRIMINAL LAW AND PROCEDURE — HARASSMENT 14-2-7885 State v. Franklin L. Dowe, App. Div. (5 pp.) Harassment conviction reversed where proofs do not justify a finding beyond a reasonable doubt that defendant — by taking photographs in the area around a tavern during a public celebration and refusing to leave — had a conscious object or purpose to alarm or seriously annoy the tavern owner or its patrons. CRIMINAL LAW AND PROCEDURE — P.T.I. 14-2-7886 State v. Wallace Baynes, App. Div. (13 pp. — 2 pp. App. Div. opinion published together with 11 pp. Law Div. opinion) The prosecutor’s decision to deny defendant entry into PTI was a gross and patent abuse of discretion, since defendant, although arrested within a school zone with a controlled substance, was arrested after school hours, only carried a small amount of the substance, carried it only for his personal use, was a regularly-employed father who resided with and supported his mother and his son, and had no significant adult criminal record. [Both opinions approved for publication Feb. 14, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-6-7887 In re: Frederick J. Schwartz, et al., Debtors; Frederick J. Schwartz, et al. v. Richard D. Gardiner, etc., et al., U.S. Bankruptcy Ct. (13 pp.) Although the IRS has not filed a claim in bankruptcy case, its motion to dismiss the adversary proceeding filed by the debtors — to determine whether one of the debtors has personal third party liability as a responsible party for certain taxes owed by corporate entities — is denied; adversity exists by reason of the fact that the reorganization plan’s viability depends on a determination of the debtor’s liability to the IRS and the N.J. Division of Taxation, and the concerns are sufficiently immediate to warrant such determination. CONTRACTS 11-7-7888 Decision Support, Inc. v. Novell, Inc., f/k/a Unix Systems Laboratories, Inc., U.S. Dist. Ct. (6 pp.) Summary judgment is inappropriate in this case of contract ambiguity, since there are questions of fact regarding whether or not the term “documentation” in the “requirements contract” between the parties covers documentation in other than a printed form, such as CD-ROM. LABOR AND EMPLOYMENT — PRIVACY RIGHTS 25-7-7889 Leonida Lidman, pro se v. Susan Barone, et al., U.S. Dist. Ct. (7 pp.) Since the facts indicate that plaintiff provided her new employer with a written release that authorized prior employers to disclose any information “relating to her activities,” there was no invasion of plaintiff’s privacy rights when the new employer requested, and was provided with, information regarding plaintiff’s prior allegations of wrongful discharge.

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