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Vol. 4 No. 21 Decisions Released Feb. 1, 1996 STATE COURT CASES FAMILY LAW 20-2-7744 Cheryl Miskoff v. A. Richard Miskoff, App. Div. (6 pp.) The motion judge erred in denying husband’s motion to terminate alimony — based upon the wife’s residence with an unrelated male for a period of time in excess of that permitted under their settlement agreement — since there were issues of material fact requiring a plenary hearing regarding the length of the cohabitation, and, once that period has been established, the judge is still required under the applicable case law to determine whether a reduction in support is warranted. INSURANCE — P.I.P. 23-2-7745 Universal Underwriters Ass’n v. Parkway Ins. Co., etc., App. Div. (3 pp.) Where plaintiff insured an injured party’s vehicle and paid him PIP benefits following an accident, and defendant insured the vehicle in which the injured party was a passenger at the time of the accident, the trial judge correctly granted plaintiff’s summary judgment motion, ordering plaintiff and defendant into intercompany arbitration to determine the equitable pro rata share of benefits and the specific monetary amount defendant should pay plaintiff, and defendant’s argument that plaintiff is liable for all PIP benefits up to a $75,000 policy limit and cannot seek contribution until that threshold is met is without merit. INSURANCE — VERBAL THRESHOLD 23-2-7746 Lelia S. Vlad v. Lori B. Stockpole, et al., App. Div. (7 pp.) Even conceding the issue that the plaintiff — who was a doctor in Romania — was qualified to testify as her own expert witness, the trial judge erred in denying defendant’s motion to dismiss plaintiff’s case on the ground that she failed to meet the verbal threshold requirements, since plaintiff’s proofs were for the most part subjective statements on her injuries which were solely dependent upon her credibility, not her expertise. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7747 Alyce Ricchiuto v. Bd. of Review, App. Div. (3 pp.) Former school cafeteria employee was properly denied benefits, since there was a clear basis in the record to support the finding that her services were terminated at the end of the school year, and to reject her claim that her employer advised her not to file a claim until August, when the school system changed food service companies; even if she was wrongly advised by her employer, her failure to timely file would bar her claim. MUNICIPAL LAW 30-2-7748 2303 Inc., etc. v. City of Atlantic City, App. Div. (6 pp.) The Law Division correctly granted plaintiff’s motion for summary judgment — reversing a denial by city of plaintiff’s mercantile license application, which was based solely on the properly disclosed criminal conviction of plaintiff’s sole shareholder — since a criminal record is only one of the factors to be considered in making a determination of fitness to run a business, and the Rehabilitated Convicted Offenders Act prohibits the denial of a municipal mercantile license based on a criminal conviction alone. NEGLIGENCE 31-2-7749 Raphael Toro v. William J. Russell, et al., App. Div. (7 pp.) On defendants’ appeal from a jury verdict in plaintiff’s favor in an automobile negligence case, (1) given the nature of the medical proofs, and plaintiff’s testimony concerning his pain and suffering, the verdict does not appear so excessive that it constitutes a miscarriage of justice and will be affirmed, and (2) since defendants are not permitted to ignore issues at trial and then claim reversible error on appeal, their other error allegations, not raised below, will not be entertained on appeal. PHYSICIAN/PATIENT — DENTISTS 29-2-7750 Sandra Hernandez v. Dr. Edgar Alb, App. Div. (4 pp.) Where defense expert conceded that correct and careful extraction of a tissue-impacted mandibular third molar would not have resulted in the severing of the lingual nerve unless the nerve was abnormally located in plaintiff’s mouth, and where there was not the slightest evidence that plaintiff’s nerve was abnormally located, summary judgment in favor of plaintiff on dental malpractice liability was proper. PUBLIC EMPLOYEES — SICK LEAVE INJURY BENEFITS 33-1-7751 In the Matter of Irene Musick, Dept. of Corrections, Supreme Ct. (21 pp.) Given the Merit System Board’s balanced approach to recognizing repetitive stress injuries and its overall need to allocate available resources among all state employees, the board’s policy determination to limit sick leave injury benefits to one year from the first date of the disability is within the agency’s statutory mandate, and application of that policy to the employee in question was not an abuse of discretion that warrants judicial intervention.[Approved for Publication. Available online in NJ Full-Text Decsions.] TAXATION 35-2-7752 Jack LaRocca v. Borough of Wanaque, App. Div. (6 pp.) Although the taxpayer presented sufficient evidence for the Tax Court to reject the borough’s assessment of the land portion of the property’s assessed value, the Tax Court erred in rejecting the brough’s expert’s adjustments for square-foot differentials in the sizes of comparable sales, and the matter is remanded for a redetermination of the tax assessment consistent with those adjustments. FEDERAL COURT CASES ATTORNEY/CLIENT — DUTY TO THIRD PARTIES — REAL ESTATE 04-7-7753 Am. Underwriters Life Ins. Co., etc. v. Plaza Fin. Realty Corp., etc., et al., U.S. Dist. Ct. (30 pp.) In a suit arising from a real estate closing against attorneys and title companies for failing to protect plaintiff’s lien, (1) notwithstanding that defendant law firm was not in privity with plaintiff, it owed plaintiff a duty, at least, to determine whether plaintiff had an interest in the property sale proceeds superior to that of defendant’s client, and, since genuine issues of material fact exist as to what the law firm knew about plaintiff’s interest when it first learned of such interest and what steps it took to determine the validity of the interest, law firm’s summary judgment motion is denied, but, (2) because the plaintiff was neither in contractual privity with the title companies, nor a third-party beneficiary of the title companies’ contracts with their clients, no contract claim can be asserted against the title companies and their motion for summary judgment is granted. ENVIRONMENT — SUPERFUND — C.E.R.C.L.A. 17-7-7754 U.S.A. v. Helen Kramer, et al.; State, Dept. of Envt’l Protection v. Almo Anti-Pollution Svcs. Corp., et al., U.S. Dist. Ct. (49 pp.) In a Superfund cost-recovery action, the government’s motion to narrow the trial issues is granted since, both as a matter of law and as the law of this case, defendants’ arguments that costs are excessive, unreasonable, duplicative, not cost-effective and improper do not provide a defense to a cost recovery action under CERCLA, since they do not allege inconsistency with the National Contingency Plan. INTELLECTUAL PROPERTY — DESIGN PATENTS — TRADE DRESS 53-7-7755 Tyco Indus. Inc. v. Tiny Love Ltd., et al.; Tiny Love Ltd. v. Tyco Indus. Inc., U.S. Dist Ct. (36 pp.) Defendant’s application for a preliminary injunction against plaintiff for alleged patent infringement and violation of trade dress rights is denied because plaintiff is likely to demonstrate, by clear and convincing evidence, that the patented design of defendant’s baby play quilt is functional, obvious and not inherently distinctive or capable of secondary meaning, and, therefore, defendant cannot succeed on the merits of its claims. LABOR AND EMPLOYMENT — TRADE SECRETS 25-7-7756 Rand McNally & Co. v. Mark G. Lang, U.S. Dist. Ct. (12 pp.) The court grants plaintiff’s motion for a preliminary injunction against defendant, a former employee threatening to reveal trade secrets, since plaintiff has made a reasonable showing that the products and processes at issue — a security stripe, thermal paper and laminating process — are protected trade secrets, that it has taken the necessary precautions to maintain the protected status, that defendant is aware of the confidential nature of the products and processes, and plaintiff is reasonably likely to succeed on the merits of the claim of a threatened trade-secrets misappropriation.

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