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Vol. 4 No. 19 – JANUARY 30, 1996 STATE COURT CASES CONTRACTS — FRANCHISES — EXPENSES 11-2-7710 W.C.P. Corp., et al. v. Batshon & Co., Inc., App. Div. (3 pp.) When zoning officials imposed a condition on proposed use of property as donut franchise, and donut company refused to grant its approval to plaintiffs to run the franchise with such condition, evidence clearly showed that plaintiffs were entitled to reimbursement from landlord for return of security deposit and funds expended on preparing franchise’s site plan. (Decided Jan. 29, 1996.) EDUCATION — EXPULSIONS 16-2-7711 Bahman M.A. Khashayar v. Kean College of N.J., App. Div. (7 pp.) Student was properly expelled from college for writing bias-related graffiti, and such expulsion was not a violation of his first amendment rights because the expulsion was based, not on the content of the writing, but on his violation of that section of student conduct code which prohibited destruction of college property by the act of writing on the walls. EDUCATION — INDEMNIFICATION OF TEACHERS/CRIMINAL DEFENSE 16-2-7712 Paul Norman Bower, et al. v. Bd. of Education of the City of East Orange, App. Div. (28 pp. — includes dissent) The trial judge properly concluded that aggravated sexual assault charges against teacher arose “out of and in the course of his duties” as a kindergarten teacher, since his alleged involvement with the children was occasioned by his contact with them as a teacher, and, therefore teacher is entitled to indemnification for legal fees and costs in his defense of the indictments under N.J.S.A. 18A:16-6.1. [Approved for publication Jan.30,1996.] ENVIRONMENT — WASTE HAULERS 17-2-7713 Passaic Cy. Utilities Authority v. Frank’s Sanitation, Inc., App. Div. (4 pp.) Waste hauler’s appeal of fine for violation of waste flow directive is dismissed, since hauler does not dispute either the adequacy of the evidence supporting the finding that it disposed of solid waste at an unapproved site, or the reasonableness of the fine, but merely argues that the waste flow directive violates the Commerce Clause, which argument it did not raise below and is precluded from raising on appeal. FAMILY LAW 20-2-7714 Susan Varcadipane v. Harry Varcadipane, et al., App. Div. (18 pp.) Although the evidence supports the judge’s finding that married couple had no interest in the marital residence owned by husband’s mother, there is no support for judge’s entering an award in favor of wife and against the mother for $7,500 representing half of the appreciation in the value of the marital residence due to the efforts of the couple during the marriage, and this part of the ruling is reversed. INSURANCE — U.I.M. 23-2-7715 Hanover/Amgro, Inc., etc. v. Deirdre Womack, App. Div. (3 pp.) Summary judgment was properly granted to insured on insurer’s declaratory judgment action — which sought a ruling that insured be denied UIM benefits because she impaired insurer’s subrogation right by refusing to file a complaint against another motorist who was involved in accident — since insurer never made any payments to anyone under the uninsured motorist provision of its policy, and, under the wording of the policy, the insured’s obligation to sue is triggered when such payments are made. 23-2-7716 N.J.A.F.I.U.A. v. Edward Warhoftig, et al., App. Div. (2 pp.) Insureds were correctly denied UIM benefits more than two years after the accident since they had impaired the insurer’s subrogation rights by not commencing an action against the tortfeasor within the two-year statute of limitations. LABOR AND EMPLOYMENT 25-2-7717 Donald Dolan, etc., et al. v. City of East Orange, etc., et al., App. Div. (12 pp.) In wrongful termination case, the trial judge correctly granted summary judgment to plaintiff — greens superintendent at municipal golf course — ordering his reinstatement pending a new hearing, since he was terminated for misconduct based entirely upon a typed, unsworn and unsigned statement of questionable origin; but the judgment on plaintiff’s Section 1983 civil rights claim is reversed, because, although plaintiff was denied administrative due process as a matter of fundamental fairness, he did not suffer a constitutional deprivation which would support such a claim. [Approved for publication Jan. 30, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7718 Sabrina Spagnolo v. Bd. of Review, etc., et al., App. Div. (3 pp.) Plaintiff’s receipt of criticism and an unfavorable job performance evaluation did not constitute “intolerable and abnormal workplace conditions” to justify her leaving work for good cause attributable to the work, and she was properly denied unemployment compensation benefits. (Decided Jan. 29, 1996.) LANDLORD/TENANT — RESIDENT SUPERINTENDENTS 27-2-7719 Jacob Ben-Moshe v. Orlando Delgado, App. Div. (4 pp.) When landlord became dissatisfied with resident superintendent’s job performance and fired him from that position, then sought to evict him, trial judge correctly held that defendant could not be dispossessed because he had been a tenant before he became the superintendent, and was entitled to continue as a tenant after the termination of his superintendent’s position; and the fact that superintendent had changed apartments during his job tenure did not alter the original landlord/tenant relationship. (Decided Jan. 29, 1996.) PHYSICIAN/PATIENT 29-2-7720 Michael Thomas Appolonia, etc., et al. v. St. Barnabas Medical Center, et al., App. Div. (33 pp.) Jury verdict of no cause in malpractice suit — arising from the premature birth of child, who suffers from cerebral palsy — is affirmed, since, inter alia, (1) reasonable minds could have decided in favor of defendants on the issue of informed consent, based upon on the evidence presented; and (2) the trial court did not err in refusing to allow plaintiffs to enter the hospital’s abortion standards into evidence, since the standards were before the jury by way of testimony. PHYSICIAN/PATIENT — DAMAGE APPORTIONMENT 29-1-7721 Jerry Fischer v. Arthur T. Canario, M.D., et al., Supreme Ct. (30 pp.) Trial judge erred in reducing malpractice award by applying the damage-apportionment rule announced in Scafidi v. Seiler, 119 N.J. 93 (1990), since a weighing of public policy, reliance and the effect on the administration of justice dictate that the rule be applied only to cases tried after the date of that opinion (May 24 , 1990); in addition, the trial court erred in declining to give an “ultimate outcome” charge, which omission was capable of misleading the jury. REAL ESTATE — DEVELOPERS CONTRACTS — COSTS 34-2-7722 Tindall Homes, etc. v. Rinaldo Reali, et al., App. Div. (10 pp.) On the facts of the case, judgment was properly entered in favor of plaintiffs against defendants for the cost of road construction and other improvements plaintiff performed in real estate development, which improvements benefitted four residential building lots owned by defendants; and judge’s omission of the cost of the installation of sewer and water connections from the award was also proper. CRIMINAL LAW AND PROCEDURE 14-2-7723 State v. Guillermo Concepcion, App. Div. (7 pp.) Since the jury could have acquitted defendant of criminal restraint — which includes the “risk of serious bodily injury” — and found him guilty only of false imprisonment — which requires only a “knowing unlawful restraint,” the trial judge erred in refusing to charge false imprisonment as a lesser included offense of criminal restraint, and the conviction for criminal restraint is reversed. 14-2-7724 State v. W.L., App. Div. (6 pp.) Since the degree of the offense of endangering the welfare of a child depends upon the nature of defendant’s assumed responsibility for the care of the child, the judge erroneously failed to instruct the jury that it was necessary for them to find that defendant had assumed an ongoing or continuing responsibility for the care of the child to find him guilty of a second-degree offense; and since the evidence shows that defendant’s responsibility for the child was no more than temporary, brief and occasional caretaking, his conviction in the second-degree is reversed, and a conviction of third-degree endangerment is entered. FEDERAL COURT CASES JURISDICTION 24-7-7725 Sunnytech, Inc. v. Micro Peripherals, Inc., etc., et al., U.S. Dist. Ct. (11 pp.) Defendant’s motion to dismiss contract action against it for lack of jurisdiction is denied, since defendant, an Ohio corporation, has contractually created continuing obligations between itself and N.J. seller of computer hardware, evidenced by its prior business negotiations leading up to the contract, and the contractual future consequences; thus defendant has manifestly availed itself of the privilege of conducting business here, and it is not unreasonable to require it to submit to the burdens of litigation in this forum, even though its contacts here are based on a single contract. PHYSICIAN/PATIENT 29-7-7726 Herman Greif, et al. v. Dr. Jacob Sage, U.S. Dist. Ct. (8 pp.) Since it is undisputed that plaintiff had sustained some damage to his visual field before the alleged malpractice in this case occurred, expert testimony was required to prove proximate cause, and, since plaintiffs have failed to provide such expert testimony, summary judgment is granted to doctor. Editor’s Note: Three of the state cases in today’s Alert were released yesterday, January 29th, but were unavailable until today; those cases are so marked.

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