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Vol. 4 No. 24 Decisions Released Feb. 6, 1996 STATE COURT CASES CONTRACTS 11-2-7792 Roberta Mathis, et al. v. Jeffrey Israel, App. Div. (3 pp.) Where commercial fishermen hired an accountant to prepare their amended tax return to include certain deductions entitling them to a refund, and paid the accountant based upon a percentage of the refund received, fishermen were entitled to recoup the accountant’s fee when the IRS audited their return, disallowed the deductions and required the fishermen to reimburse the IRS for the refund. FAMILY LAW 20-2-7793 Marin Ibrahim v. John Ibrahim, App. Div. (3 pp.) Where father sought change of custody alleging neglect by the mother, and court denied the application based upon a report from the state Division of Youth and Family Services that found no neglect, the trial court did not abuse its discretion in then denying the father an evidentiary hearing to challenge the report findings, since there was no prima facie indication of maternal neglect that would warrant such a hearing. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7794 M.N. v. Y.T., App. Div. (3 pp.) Although defendant’s frequent telephone calls to plaintiff at plaintiff’s home and job, sometimes asking about plaintiff’s sex life and other topics not related to the parties’ child, constituted harassment justifying defendant’s domestic violence conviction, the trial judge erroneously also found defendant guilty of criminal trespass when he returned the parties’ child to plaintiff’s apartment after his visitation, since there was no proof that defendant entered or remained on the premises after notice against trespass was given, and, therefore, that part of the order imposing restrictions upon defendant’s visitation must be revisited. FAMILY LAW — PSYCHOLOGIST/PATIENT PRIVILEGE 20-2-7795 John Kinsella v. Mary Kinsella, App. Div. (14 pp.) Since wife has not shown that evidence supporting her abuse claims could not be found from a source less intrusive than her husband’s psychotherapy records, disclosure of those records in disregard of the psychologist-patient privilege is not justified either on the ground that custody and visitation may be at issue or on the ground that the wife may need the information to establish a prima facie case for a jury trial on her marital tort claim. [Approved for publication Feb. 6, 1996. Available online in NJ Full- Text Decisions.] GOVERNMENT — PUBLIC BIDDING 21-1-7796 Tormee Const. Inc., et al. v. Mercer County Improvement Auth., Supreme Ct. (31 pp. – includes dissent) The specification in defendant’s library construction-project bid solicitation, which required contractors to enter into a “project labor agreement” with “appropriate labor organizations,” is invalid as inconsistent with public-bidding statutes. [Approved for Publication. Available online in NJ Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-7797 Joann Becker, et al. v. Allen Lawson, App. Div. (4 pp.) Plaintiff’s case should not have been dismissed because the creaking and effusion in her knees almost two years following her accident is sufficient objective evidence of permanent injury to withstand a summary judgment motion, and the difficulties and restrictions plaintiff has in her daily life constitute a serious impact on her life. 23-2-7798 Lawrence Sullivan v. Robert Kaufmann, App. Div. (3 pp.) Since plaintiff, a diabetic who must control his disease by eating many foods that are hard to chew — such as salads, crisp vegetables, and fruits — has had difficulty eating and chewing these foods due to the symptoms of the TMJ displacement suffered in an accident, he has shown a serious impact on his life, and summary judgment was improperly granted to the defendant. LABOR AND EMPLOYMENT 25-2-7799 Frank DiMauro, M.D. v. Atl. City Medical Center, App. Div. (6 pp.) Regardless of whatever legal theory might support doctor’s various claims that he was wronged at hospital, since he did not seek reinstatement, but limited his damage claims to those for economic loss, his case was properly dismissed based on the lack of proof of damages, as his income has increased every year since his termination. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-2-7800 Cheryl Ann Keller v. Somerset Hotel Operating Co. Inc., etc., et al., App. Div. (3 pp.) There was no harassment of hotel concierge by her employer or any co-employee simply because the hotel lounge began showing pornographic movies, and the four isolated incidents in which hotel guests may have approached her in less than polite ways did not suffice to prove a hostile working environment. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7801 Michael Williams v. Bd. of Review, et al., App. Div. (2 pp.) Employee was properly disqualified for benefits because he made an unauthorized purchase of tools valued at $1,500 for his personal use with the company credit card, since this act constituted both a crime and gross misconduct connected with his work. 25-2-7802 Stephen J. Parris v. Bd. of Review, et al., App. Div. (8 pp.) Accepting either the employer’s or the employee’s version of the incident — where employee demanded an immediate raise and would not leave his employer’s office until the matter was “resolved” — it is clear that employee left the workplace at the command of the employer and was fired; therefore, the board of review erroneously held that he was not entitled to benefits. NEGLIGENCE 31-2-7803 Dominick Rappa v. Will & Bill Morey Enters. Inc., etc., et al., App. Div. (10 pp.) In case for injuries sustained on an amusement park ride, the trial judge did not err by refusing to admit evidence of plaintiff’s chronic alcoholism in two other, unrelated incidents, since it was not relevant to plaintiff’s predisposition to act in the future or to anything at issue in this case, and, even if it were, the prejudicial effect far outweighed its probative value. 31-2-7804 Lucille Provencher, et al. v. Shop Rite of Hightstown Inc., et al., App. Div. (7 pp.) Trial judge did not err when he refused to reconvene the jury — to inquire whether the deliberations had been tainted — based upon certain post-verdict communications, since the communications, at best, revealed a “defect” in the motives, methods or thought processes by which the verdict was reached, which is insufficient to constitute good cause to probe into the deliberations. PUBLIC EMPLOYEES 33-2-7805 In the Matter of Barbara Wilczynski, App. Div. (6 pp.) The merit board erroneously treated petitioner’s absence from work during her test period as “approved” in finding that she would be entitled to an additional 30-day work test period, since the employer’s allowing petitioner the opportunity of using compensatory and vacation time to prevent the loss of income resulting from an absence does not equate with a formal approval of a leave of absence, which was not requested by petitioner. REAL ESTATE 34-2-7806 Icote Intl. Inc. v. B&V Realty Co., et al., App. Div. (14 pp.) Verdict in favor of seller for defendant’s breach of a real estate contract is affirmed, and the jury’s answers to interrogatories regarding the closing date, the extension of contingency dates, and defendants’ refusal to purchase the property, were not irreconcilably inconsistent. REAL ESTATE — DEVELOPERS 34-2-7807 Da-Lu Tung v. Briant Park Homes Inc., et al., App. Div. (8 pp.) Trial court correctly held that developer, who failed to deliver a current prospective offering statement on the contract date, as required by the New Jersey Planned Real Estate Development Full Disclosure Act, was not liable to the purchaser for double damages and costs, since there was no causal connection between such failure and the purchaser’s breach-of-contract losses. [Approved for publication Feb. 6, 1996. Available online in NJ Full-Text Decisions.] WILLS, TRUSTS AND ESTATES 38-2-7808 In the Matter of the Estate of Dominic Carmen Granato Sr., Deceased; Catherine Granato, Executrix and Individually, App. Div. (8 pp.) Since decedent, as tenant in common with his wife, held an undivided interest in the entire real property in question, he could not alienate any particular part of the property to his son, as his will directed, and the judgment of the probate court upholding the devise to the son of three particular acres from the tract is reversed. WORKERS’ COMPENSATION 39-2-7809 Anthony Rembiszewski v. Hudson County Office of the Aging, App. Div. (4 pp.) Since employer’s appeal of temporary disability award to petitioner — which appeal is based upon the premise that petitioner was not, in fact, disabled — is based on matters outside of the record, the appeal cannot be entertained and is dismissed, and employer should seek to have the compensation court reopen the matter. CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-7810 State v. Frank Velez, et al., App. Div. (7 pp.) Where trooper properly stopped a vehicle weaving in traffic, and then smelled alcohol on the breath of both of its occupants, although there was not sufficient objective reasonable suspicion to believe that the occupants were armed and dangerous, the action of the trooper in moving a sweatshirt on the rear floor, to bring into view the object that appeared to be concealed under it, was reasonable in light of the trooper’s suspicion that alcoholic beverage containers were present in the vehicle in violation of the law, and the evidence of drugs and money found in boxes under the sweatshirt was improperly suppressed. FEDERAL COURT CASES BANKRUPTCY 42-7-7811 Laurance Lowenschuss, Individually and as Trustee, etc. v. Resorts Intl. Inc., U.S. Dist. Ct. (35 pp.) Although the issues raised in pension plan trustee’s complaint against defendant do not constitute core proceedings, they are nevertheless related to the bankruptcy, since the outcome of the litigation could conceivably have an effect on the estate being administered in bankruptcy, and the matter is therefore referred to the U.S. Bankruptcy Court. CONTRACTS 11-7-7812 Jacob Goldfarb, et al. v. Cunard Lines, et al., U.S. Dist. Ct. (7 pp.) Since the face of the passage contract between ship line and passenger clearly advises passenger in capital letters to read the terms of the contract, which is neither lengthy nor complex, and the contract contains clear language advising the passenger that any suit for injury must be brought within one year from the date of such injury, passengers’ suit, filed beyond the one-year limit, is dismissed as time-barred. LABOR AND EMPLOYMENT — GENDER DISCRIMINATION — L.A.D. 25-7-7813 Sandra Delmont v. Dataflex Corp., U.S. Dist. Ct. (15 pp.) Although there is no dispute that plaintiff, as a female, is a member of a protected class, she cannot meet the other requirements to make out a prima facie discrimination case, since she did not possess the experience necessary to qualify for the job to which she was not promoted, and could not, therefore, be considered along with those who were properly qualified. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION — TITLE VII 25-7-7814 Jarrod Greene v. Martin T. Runyon, Postmaster General, U.S. Dist. Ct. (15 pp.) Even assuming that the plaintiff may have met his burden of proving a prima facie race-discrimination case, the employer has rebutted that presumption by proffering non-discriminatory reasons for his termination from the postal service — offering testimonial and documentary evidence of plaintiff’s history of tardiness and inordinate absenteeism — and plaintiff has offered no credible evidence to rebut the non-discriminatory reasons or to show that it was pretextual. SECURITIES — PARTNERSHIPS — FRAUD — CLASS ACTIONS 50-7-7815 Patricia Gunter, et al. v. Ridgewood Energy Corp., et al., U.S. Dist. Ct. (23 pp.) Analyzing the requirements for class certification under Rule 23, and resolving any doubts as to the propriety of certification in favor of allowing the class action, plaintiffs’ class- action certification motion is granted, since the investors all share similar legal claims arising from the alleged securities fraud committed by the defendants in forming and promoting a series of oil and gas limited partnerships. [For publication.]

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