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Vol. 4 No. 17 Decisions Released Jan. 26, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-7677 Evelyn Z. Sommers v. Thomas A. McKinney, et al., App. Div. (15 pp.) (1) Because plaintiff has demonstrated that there are genuine issues of material fact concerning the breach of duties owed to her by her attorney in settling case and wrongfully negotiating settlement proceeds, and expert testimony was not required to establish those duties owed to her by the attorney, summary judgment was improperly granted to lawyer and his firm, and (2) because bank concedes that it improperly negotiated settlement check without plaintiff’s endorsement, summary judgment granted in bank’s favor is reversed. [Approved for publication Jan. 26, 1996. Available online in NJ Full-Text Decisions.] CONSTRUCTION 43-2-7678 Meridian Assocs., etc. v. Zurich Ins. Co., et al., App. Div. (12 pp.) Where plaintiff contracted with defendants for tile work in hotel complex and defective tile caused injuries and damage, then plaintiff signed a deed in lieu of foreclosure to bank, there was at least a material factual issue concerning plaintiff’s agreement with bank that plaintiff retained continued liability for the tile repair, so that the bank could sell the property at a better price to new owners; therefore, plaintiff still had standing to pursue defendants for the defective tile, and trial judge should not have granted defendants summary judgment. CONTRACTS 11-2-7679 Jose Justo, etc. v. Bassam Ibraheem, etc., App. Div. (5 pp.) Trial court properly vacated summary judgment entered against defendant on condition that defendant post a bond within a certain period of time and, because defendant did not post the bond, it was not error for the trial court to reinstate a previously vacated judgment against him. FAMILY LAW 20-2-7680 Paul McGee v. Carol McGee, App. Div. (4 pp.) Trial judge’s equitable distribution award was carefully considered and is affirmed, including judge’s view of repairs and improvements husband made to the marital premises in dividing its value, and his decision on rehabilitative alimony, which assessed wife’s earning power but also considered her 40-month refusal to undertake a meaningful job-training regimen or a job search. FAMILY LAW — REHABILITATIVE ALIMONY 20-2-7681 Bernice Wettstein, etc. v. Stephen Wettstein, App. Div. (11 pp.) Although most of the court’s decisions in final divorce judgment are affirmed, because the trial court’s written opinion did not address N.J.S.A. 2A:34-23(b) factors that should guide a rehabilitative alimony determination, his decision cannot be reviewed for sufficiency, and this aspect is remanded. INSURANCE — VERBAL THRESHOLD 23-2-7682 Arlene Foden v. Donna M. Webb, et al., App. Div. (7 pp.) Where plaintiff was never bedridden, nor told to stay home from work by her physicians, and was able to perform her jobs and housekeeping chores, albeit with some limits, she did not prove that her injuries had had a significant impact on her quality of life, and her case was properly dismissed. LABOR AND EMPLOYMENT — CHOICE OF REMEDIES 25-2-7683 Wilfredo Hernandez v. Region Nine Hous. Corp., et al., App. Div. (10 pp.) Law Division judge correctly granted summary judgment to employer on discrimination suit since employee had irrevocably elected a federal remedy and could not later pursue an alternative judicial remedy under state law. [Approved for publication Jan. 26, 1996. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7684 John B. Altomare v. Bd. of Review, App. Div. (4 pp.) Although it may well be that claimant was not advised that his continued entitlement to benefits was conditioned upon the number of hours he worked at his part-time job and was only told that his entitlement was related to his earnings, the government’s failure to so advise him does not relieve claimant of either the ineligibility consequences or the onus of the refund order. 25-2-7685 William Fitzgerald v. Bd. of Review, App. Div. (3 pp.) While claimant did not receive his military pension check until February, the check was for January, and appeal tribunal properly found that claimant had constructively received his military pension check in January, contemporaneously with unemployment benefits, and was liable to refund the January benefit. LAND USE — CREMATORIES 26-2-7686 Rosemount Memorial Park Cemetery Ass’n v. City of Elizabeth, App. Div. (7 pp.) In a case where cemetery alleged that state law precluded municipality’s enactment of an ordinance rendering crematories an impermissible use, the appeal is dismissed as moot, since municipality has granted a use variance to cemetery, the crematorium is operational, and the issue is not of such great public importance that its resolution is warranted. MUNICIPAL LAW 30-3-7687 Acqua Dev. Corp., etc., et al. v. Twp. of Holmdel, etc., et al., Law Div. (18 pp.) Zoning officer’s actions — in denying developers zoning permits because the properties in question were burdened with delinquent real estate taxes � was neither arbitrary, capricious, nor unreasonable, since the underlying ordinance sections and development regulations, upon which the decisions were based, were valid. [Approved for publication Jan. 23, 1996. Available online in NJ Full-Text Decisions.] NEGLIGENCE — DOG BITES 31-2-7688 Kimberly Bailey v. William Flemer’s Sons Inc., et al., App. Div. (4 pp.) Nursery in a rural setting is under no duty to passing motorists to forbid its employees from having dogs on the premises or to fence in all its property in order to prevent the dogs from running loose, and summary judgment was properly granted to nursery when plaintiff sued for injuries she suffered when she was bitten by nursery employee’s dog after she stopped at the side of the road adjoining the nursery to aid the apparently injured animal. NEGLIGENCE — FICTITIOUS PARTIES 31-2-7689 Karriem Robinson v. Rose I. Noel, et al., App. Div. (4 pp.) Where plaintiff’s attorney, even after learning the correct identity of fictitiously named defendants, failed to move to substitute the true parties for more than one year — and a year and a half after the statute of limitations had run � judge properly denied motion to amend, especially since defendants would be prejudiced by such amendment, as their insurance policies have been virtually exhausted in settling timely-filed claims. NEGLIGENCE — TORT CLAIMS ACT — LATE NOTICE 31-2-7690 Arthur A. Grunden Jr., et al. v. Dover Twp., et al., App. Div. (3 pp.) Motion judge properly found no extraordinary circumstances and denied plaintiff’s application to file a late notice of claim, where plaintiff agreed to release the municipality and police department from any and all civil claims he may have had against them in exchange for dismissal of charges of assaulting officer and resisting arrest, and, after the settlement, changed attorneys and moved to file notice of claim under the Tort Claims Act. REAL ESTATE 34-2-7691 Center Valley Assocs. L.P., etc. v. Twp. of Readington, etc., App. Div. (4 pp.) In a case where developer of low-cost, senior-citizen housing and township had agreed that township would transfer title to developer upon closing of the construction loan, but township terminated the agreement after developer failed to timely obtain financing, the trial judge properly awarded summary judgment to township, since township provided more than a reasonable period for developer to obtain the loan and developer never satisfied the agreement’s evidentiary requirements of presenting documentary proof on the loan’s progress despite requests from township. REAL ESTATE — COMMISSIONS 34-2-7692 Mazzeo Assocs. Inc., etc. v. Adjmi-Gammal Realty Corp., et al., App. Div. (3 pp.) Where commissions dispute was settled, but defendants failed twice to meet the settlement agreement payment schedule, the judge properly found that prompt payment was a necessity, and entered judgment against the defendants, notwithstanding that defendants subsequently paid the full settlement amount. REAL ESTATE — EASEMENTS 34-2-7693 Ezra Rishty, et al. v. Borough of W. Long Branch, et al., App. Div. (3 pp.) Trial court correctly concluded that plaintiff’s deck extension did not unreasonably obstruct the defendant’s sewer pipeline easement, since the extension could be easily removed, and plaintiffs would be responsible for the costs of removal if required by defendant for repairs. WILLS, ESTATES AND TRUSTS 38-2-7694 In the Matter of the Estate of Edward McGovern Jr., deceased, App. Div. (14 pp.) Because the decedent’s daughter’s complaint is not limited to a claimed entitlement under his will, but also extends to a separate issue about a purported continuing intervivos agreement between decedent and his sons for the support of the daughter (their sister), of which she claims the will was only a final expression, judge should not have granted summary judgment to daughter and case is remanded for a plenary hearing in consideration of the broader issue. CRIMINAL LAW AND PROCEDURE 14-2-7695 State v. Fernando Aguirre, App. Div. (10 pp.) Law Division incorrectly dismissed the indictment against defendant because of a 20-month delay between the commission of the crime and the initiation of the prosecution, since defendant failed to establish actual prejudice and an illegitimate reason for the delay. [Approved for publication Jan. 26, 1996. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES CORRECTIONS — APPOINTMENT OF COUNSEL 13-7-7696 Oliver Cochran, pro se v. William H. Fauver, et al., U.S. Dist. Ct. (8 pp.) Analyzing indigent inmate’s claim that prison officials violated his Eighth Amendment rights by allowing him to be attacked by other prisoners and failing to provide adequate medical care afterward, (1) since inmate has failed to allege facts that would prove that prison officials acted with deliberate or reckless indifference in failing to protect him from the attack, this claim is not cognizable, however, (2) since prisoner’s claim that he did not receive medical treatment for more than one month after he was beaten and stabbed in the attack could qualify as a deprivation of his constitutional rights, this claim survives, and (3) although the legal issues are not complicated, the degree of factual investigation necessary is complex, and, since inmate’s blindness would make such investigation extremely difficult, his application for appointment of counsel is granted. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-7697 William Mark DiIorio v. CACI Inc., et al., U.S. Dist. Ct. (17 pp.) In analyzing whether male employee has made out a prima facie case on his claim that he was discriminated against and harassed by female supervisor, the court reluctantly concludes that the employee has made out a prima facie discrimination case, since, although the court agrees with employer that defendant, who submitted an egregiously fraudulent resume, was entirely unqualified for the position from which he was terminated, this information was “after-acquired,” and not available to the employer at the time of the alleged discharge. 25-7-7698 Rosemary Frank, et al. v. County of Hudson, et al., U.S. Dist. Ct. (17 pp.) In civil rights suit by female employees of sheriff’s office alleging sexual harassment by their supervisor, the court affirms the decision of the magistrate judge granting supervisor a protective order — barring the disclosure or use of his stepdaughter’s statement that he sexually abused her — since the statement’s probative value is weak, and the employees’ need for the statement of alleged offenses committed at least ten years ago is slight compared with the harm that the statement’s disclosure would cause the supervisor, and newly enacted Federal Rule of Evidence 415 is not applicable to the facts of this case. [Approved for publication. Available online in 3rd Circuit - District Court.] NEGLIGENCE — REMAND 31-7-7699 Jorge Mendez, et al. v. Zipp Express Inc., et al., U.S. Dist. Ct. (7 pp.) Although plaintiffs claim that they do not know if their damages will exceed $50,000 to justify federal jurisdiction, their motion to remand automobile accident negligence suit to state court is denied, since plaintiffs allege that they have suffered severe, serious and permanent injury, loss of consortium, and damage to their vehicle, and a reasonable jury could value these losses at more than the $50,000 jurisdictional amount. TORTS 36-7-7700 Marilyn Battaglia v. Twp. of Wayne, et al., U.S. Dist. Ct. (5 pp.) Although the court cannot grant defendant’s motion to reconsider a denial of summary judgment that would dismiss plaintiff’s tortious interference claim — since defendant has not demonstrated that the court overlooked controlling decisions or dispositive factual matters presented to it previously — because the defendant’s new evidence clearly indicates that plaintiff’s failure to obtain planning board approval for her property development plan resulted not from the defendant’s interference or intervention but rather from plaintiff’s failure to file a complete preliminary site plan application, the court elects to treat this as a renewed summary judgment motion, and it is granted.

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