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Vol. 4 No. 23 Decisions Released Feb. 5, 1996 STATE COURT CASES ATTORNEY/CLIENT — FEES PENDING MALPRACTICE 04-1-7780 Michael A. Saffer v. William W. Willoughby Jr., Supreme Ct. (21 pp.) After discovery of alleged legal malpractice during legal fee arbitration matter, the fee arbitration committee should have granted the client a 30-day window of opportunity to withdraw the arbitration request, and, in the absence of the opportunity for such withdrawal, the Appellate Division should have stayed the fee award pending the disposition of the malpractice complaint; in reversing Appellate Division opinion affirming $103,000 fee award, Court adopts new procedure by amending arbitration rules to allow for withdrawal from arbitration in the face of a potential legal malpractice claim. [Approved for Publication. Available online in NJ Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-1-7781 State v. Alex Sanchez, Supreme Ct. (29 pp.) Because defendant has failed to show that substantially exculpatory testimony would have been forthcoming had his severance motion been granted, he has not demonstrated prejudice sufficient to compel severance under R. 3:15-2(b), and the trial court did not abuse its discretion in denying defendant’s severance motion. [Approved for Publication. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES ATTORNEY/CLIENT — MALPRACTICE — DEFAULT 04-7-7782 Barbara Isaacs, etc. v. Jack N. Frost, et al., U.S. Dist. Ct. (6 pp.) In legal malpractice suit — for dismissal of plaintiff’s personal injury case for failure to answer interrogatories — default against defendants will be vacated since default occurred because of inadvertence, not willfulness; since defendants were in default only for a matter of weeks; since the matter has not been pending for an extended period of time; since no inherent prejudice will inure to the plaintiff if default is vacated; and since defendants have a meritorious defense in their claim that plaintiff’s refusal to cooperate in the personal injury suit contributed to its dismissal. BANKRUPTCY — FORECLOSURE 42-6-7783 In re: Raymond J. Pinto, U.S. Bankruptcy Ct. (11 pp.) (1) Because debtor’s plan does not provide for payment of real estate taxes and insurance on the mortgaged premises, the mortgagee is undersecured, and (2) the debtor may modify the rights of the undersecured mortgagee under Code Section 1322(b)(2), because the mortgage instrument provides that mortgagee not only has a security interest in the debtor’s residence, but also in additional collateral — including rents, profits, issues, fixtures and an escrow account — and the mortgagee’s claim may therefore be bifurcated, and (3) although the foreclosure judgment terminated the mortgage itself, the security interest taken by the mortgagee survives for purposes of Section 1322(b)(2). CIVIL PROCEDURE — DISMISSAL AS SANCTION 07-7-7784 Antonio Jones v. U.S.A., U.S. Dist. Ct. (3 pp.) Since the plaintiff meets four of the six factors favoring dismissal under Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), including willful noncompliance with the court’s scheduling order and failure to explain his conduct, the extreme sanction of dismissal is appropriate. CIVIL RIGHTS — FALSE ARREST — IMMUNITIES 46-7-7785 Andrew Bartok v. Twp. of S. Hackensack Police, et al., U.S. Dist. Ct. (20 pp.) (1) Since the police department was in possession of a signed, facially valid warrant at the time of plaintiff’s arrest, and had probable cause to arrest him for theft of an automobile by deception, the officers are entitled to qualified immunity from plaintiff’s false arrest claims; (2) although probable cause existed to issue a complaint against plaintiff regarding an allegedly stolen license plate, justifying summary judgment on the false complaint charge, since a genuine issue of material fact exists as to whether the plate was in plain view, summary judgment cannot be granted on the illegal search and seizure issue, and (3) because it does not appear that handcuffing the plaintiff was unlawful under the circumstances, defendants are entitled to qualified immunity on the unlawful force claim. CIVIL RIGHTS — VACATING DEFAULT 46-7-7786 Sergie Ruffin Jr., et al. v. Edison Twp., et al., U.S. Dist. Ct. (12 pp.) While the plaintiffs rightly complain about the defendants’ unjustified delay in filing an answer for more than three years, the court determines that plaintiffs will not be prejudiced unduly by setting aside the default judgment, that defendants have a meritorious defense, and that the default was not the result of any culpable conduct on the defendants’ part — but rather stemmed from errors committed by defendants’ law firm — however, defendants’ law firm is ordered to pay plaintiffs’ reasonable attorneys’ fees and expenses incurred in their default judgment applications. EDUCATION — DISABILITIES 16-7-7787 Andrew Jefferys, etc. v. State of N.J., N.J. Dept. of Educ., et al., U.S. Dist. Ct. (28 pp.) The severely retarded 17-year-old plaintiff is granted a preliminary injunction prohibiting his removal from his current educational placement, pursuant to IDEA’s “stay-put” provision, which directs that a disabled child shall remain in his current educational placement pending completion of judicial review proceedings, and the court determines that the state education department is the appropriate party to bear the expense of the continued placement pending judicial resolution. ENVIRONMENT — IMPLEADER — ENTIRE CONTROVERSY 17-7-7788 Mennen Co. v. Atl. Mut. Ins. Co., et al., U.S. Dist. Ct. (19 pp.) While, at the time plaintiff filed its environmental coverage action, it could have obtained complete recovery from the insurers it named as defendants without joining another insurer, which would have destroyed diversity, and while an intervening change in the law substantially altered the manner in which insurers’ defense and indemnity costs are allocated, leaving plaintiff ostensibly at risk for the coverage period of the unjoined carrier, (1) plaintiff cannot compel insurers to implead the unjoined carrier, because the joined insurers’ policies never overlapped with those of the unjoined, and therefore they do not have a substantive right of contribution or indemnity against the unjoined carrier, (2) the named insurers’ motion to amend their answers to include an allocation counterclaim satisfies their obligation under Owens-Illinois v. Un. Ins. Co., et al., 138 N.J. 437 (1994), to “initiate proceedings” to determine their allocable share of defense and indemnity costs, and the actual joinder of the other carrier is not necessary for this allocation determination, and, (3) under the circumstances, the court finds it unlikely that the New Jersey court would bar a future action by plaintiff against the unjoined carrier under the entire controversy doctrine. INSURANCE — HOMEOWNERS POLICIES — REPAIRS 23-7-7789 Kyung Sook Son v. State Farm Ins. Co., U.S. Dist. Ct. (8 pp.) In a suit seeking coverage for repairs under a homeowner’s insurance policy, (1) since the court determines there is no basis on which plaintiff could recover on his claim that “hidden decay” was the cause of his home’s structural defects, summary judgment is granted, in part, to insurer, however, (2) since there is a material dispute as to whether a “collapse” occurred during construction of the premises, which would generate coverage, summary judgment dismissing the entire case cannot be granted. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-7790 Adrienne Pickett v. Cablevision of Newark, et al., U.S. Dist. Ct. (29 pp.) (1) Since the court in Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), states that all five constituents of its test must converge to support a successful claim based upon a sexually hostile work environment under Title VII, and since at no time — from the beginning of plaintiff’s harassment until its termination — did all five elements converge, employer’s summary judgment motion is granted. (2) Since plaintiff has offered no evidence why her employer’s articulated reasons for terminating her should not be believed, and there is nothing to suggest a discriminatory animus, employer is also granted summary judgment on plaintiff’s discriminatory retaliation claim. PRODUCT LIABILITY 32-7-7791 Elwyn E. Jones II v. Johnson & Johnson, U.S. Dist. Ct. (11 pp.) In a suit for liver damage sustained when plaintiff consumed extra-strength Tylenol in combination with alcohol, (1) since plaintiff, until recently a pro se litigant, has shown good cause for his failure to timely serve defendant, and, since defendant does not seem to have been prejudiced by the delay, service will be deemed timely and defendant’s motion to dismiss on that ground is denied, and (2) on defendant’s motion to dismiss for lack of diversity, although the court does not believe that plaintiff has offered sufficient evidence to establish his New York domicile at the time he filed his complaint, the court deems it proper to order the parties to conduct limited discovery on this issue.

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