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Vol. 4 No. 26 Decisions Released Feb. 8, 1996 STATE COURT CASES ADMINISTRATIVE LAW — STATE POLICE 01-2-7830 In the Matter of Wayne Paterno, App. Div. (5 pp.) There is no basis for concluding that an administrative law judge’s initial decision must be deemed adopted merely because the state police superintendent did not get an extension of the time limit for filing his report, and, since the record supports the superintendent’s conclusions with respect to the reliability and integrity of the drug testing, and petitioner signed a consent form acknowledging that such testing would occur during his state police training, petitioner’s rights were not violated by the testing and his termination as a state police trainee based upon positive test results was proper. CIVIL PROCEDURE — DEFAULTS — EXCUSABLE NEGLECT 07-2-7831 Christopher J. Glemser, et al. v. Lawrence J. Park, App. Div. (2 pp.) Where defendant’s attorney had a seriously ill sister who died, an injured mother, and a seriously ill nephew, all of which affected his ability to diligently represent his client in a timely fashion, the attorney has shown good cause and excusable neglect, and the motion judge erred in denying the motion to vacate default and default judgment. CONTRACTS 11-2-7832 Dom-Chet Co., etc. v. Quick Lube and Oil Serv. Center Inc., et al., App. Div. (4 pp.) Where plaintiff loaned money to defendant to purchase equipment for an automobile service center, and defendant agreed to purchase plaintiff’s products and to pay a surcharge on each delivery toward repaying the equipment loan, plaintiff breached the contract when it stopped shipping oil and lubrication products to defendant, and, since plaintiff’s conduct made defendant’s ability to repay the loan impossible according to the contract terms, the judge correctly decided that plaintiff had forfeited its right to recover the balance of the loan. FAMILY LAW 20-2-7833 Patricia Callaco v. Joseph Callaco, App. Div. (3 pp.) While trial judge did not specifically denominate the statutory factors in awarding permanent alimony to the wife, the award is supported by the record, since husband’s employment clearly affords him greater opportunities to plan for his retirement than does wife’s. INSURANCE — VERBAL THRESHOLD 23-2-7834 Walter Bachowski, et al. v. Lawrence P. Underhill, et al., App. Div. (3 pp.) Where plaintiff did not miss any time from his job, which required physical labor, was never confined to home or to bed, and testified that there was nothing that he was unable to do as a result of an accident, his case was appropriately dismissed on summary judgment for failure to show that the accident had a serious impact on his life. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-2-7835 Paul D. McLemore v. Bill Mathesius, etc., App. Div. (20 pp.) The fact that the trial judge had previously denied summary judgment to employer did not establish, as a matter of law, that the plaintiff was “qualified” for the position which he was not offered, and the trial judge correctly left that question for the jury to decide; the jury’s verdict that plaintiff was not personally, politically and professionally qualified for the sensitive position of county counsel, and that defendant was not guilty of racial discrimination, is rational, supported by the evidence, and affirmed. LANDLORD/TENANT 27-2-7836 Colonial Specialty Foods Inc., etc. v. County of Cape May, App. Div. (9 pp.) Summary judgment for dispossessiwould not be liable for failing to install a smoke detector in tenant’s premises, since landlord voluntarily undertook to install a detector, he might be liable if such installation was determined to be negligent, and, since there are material questions presented on that issue, summary judgment dismissing tenants’ complaint was improperly granted. PHYSICIAN/PATIENT — DENTISTS 29-2-7838 Michael Doblin, D.D.S. v. Anthony Viggiano, et al., App. Div. (3 pp.) Malpractice judgment against dentist is affirmed, since it was based on sufficient credible evidence, and the dentist’s contention that the patient’s expert could not give a reliable opinion, as a matter of law, because the expert had himself admitted deviating from accepted standards of dental practice as to the issue for which the dentist in this case was being criticized, is without merit. CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-7839 State v. William Matunda, et al., App. Div. (8 pp.) Simply because the pat-down search of the defendant revealed no weapons, it did not negate the need to search the defendant’s vehicle or dissipate the reasonableness of the officer’s belief that there may have been weapons in the vehicle, since the officer had seen the defendant twice duck down in the front passenger seat and maneuver the carpeting, and since the defendant became agitated when confronted and admitted to prior “guns and drugs” arrests; therefore, evidence of drugs found in the vehicle search should not have been suppressed. FEDERAL COURT CASES CORRECTIONS — CIVIL RIGHTS 13-7-7840 Orlando Pagan v. Correction Officer Purnell, et al., U.S. Dist. Ct. (8 pp.) Even if plaintiff’s complaint — alleging that prison officials violated his civil rights in failing to protect him from attack by other inmates — is held to heightened pleading requirements, it is sufficient to survive defendants’ motion to dismiss, since it pleads the specific conduct that allegedly violated defendant’s rights, the time and place of that conduct, and the identity of the responsible officials. EVIDENCE — DISCOVERY — PRIVILEGE 19-7-7841 Carol Sue Harding, et al. v. Dana Transp. Inc., et al., U.S. Dist. Ct. (49 pp.) In employment discrimination case, defendant is denied a protective order preventing or limiting the deposition of its former attorney who was involved in investigating a discrimination claim, since the defendant has waived any attorney-client or work-product privilege by placing the investigation at issue in asserting it as an affirmative defense, and the fact that the attorney acted simultaneously as both investigator and attorney does not change the significance of the waiver. [For publication. Available online in 3rd Circuit - District Court.] LABOR AND EMPLOYMENT — ERISA 25-7-7842 Ronald Asher, et al. v. Faber-Castell Corp., et al., U.S. Dist. Ct. (9 pp.) In a case where plaintiff is seeking compensatory damages for defendants’ failure to contribute to his employee benefit plans in violation of severance-agreement terms, if plaintiff’s contention that the agreement is not covered by ERISA is correct, since the claim asserted is that defendants did not contribute to existing benefit plans, which may be covered by ERISA, the claims “relate to” employee benefit plans, are preempted by ERISA, and those claims must be dismissed. TORTS — AIRLINES 36-7-7843 Fredda Seidenbaum v. Continental Airlines Inc., U.S. Dist. Ct. (9 pp.) Plaintiff’s various claims against airline — alleging infliction of severe emotional distress for airline’s loss of her reservations, delays in processing her ticket which caused her to miss her flight, delaying her baggage, etc. — are dismissed because they are related to “airline services” and are therefore preempted by the Airline Deregulation Act, 49 U.S.C. Sec. 1305, and the claims do not rise to the level of “outrageous” or intentional conduct which would not be so preempted.

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