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Vol. 4 No. 15 Decisions Released Jan. 24, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-7646 Mary Muller v. Dennis M. Salerno, App. Div. (8 pp.) Where attorney chose New Jersey as the venue for plaintiff’s contract action despite a contract provision providing that New York would be the forum for any litigated matter, and New Jersey action was dismissed on that basis, attorney commited malpractice and plaintiff’s case should not have been dismissed. CONTRACTS — FOREIGN JUDGMENTS 11-2-7647 Forest Lane Capital Corp. v. Zamperla Inc., App. Div. (4 pp.) Since there is no evidence pointing to an absence of due process in Texas suit for defective amusement rides, Texas judgment will be given full faith and credit and enforced in New Jersey. FAMILY LAW 20-2-7648 Katherine Burd v. Robert Burd, App. Div. (3 pp.) Although the court sympathizes with husband’s procedural plight, and while husband may be entitled to full costs and attorney’s fees for the additional proceedings caused solely by wife’s many counsel changes and adjournments, trial judge did not abuse his discretion in vacating portions of parties’ divorce judgment and requiring additional discovery and trial. HEALTH — MEDICAID 22-2-7649 W.S. v. Div. of Medical Assistance and Health Svcs., et al., App. Div. (2 pp.) Since the New Jersey Supreme Court decided recently that a pension, such as applicant’s, which was transferred through a qualified domestic relations order to his spouse, does not constitute available income for purposes of determining applicant’s Medicaid eligibility, and agency concedes the point in light of the Court case, appeal is dismissed as moot. INSURANCE — FIRE — BUSINESS INTERRUPTION 23-2-7650 248 Haynes St. Assocs., etc. v. Nat’l Union Fire Ins. Co., App. Div. (7 pp.) The necessity and reasonableness of hotel owner’s buy-out of its restaurant concessionaire to expedite repairs after fire were not material to the determination of whether this expenditure was covered under owner’s business interruption insurance coverage since, by the express terms of the policy exclusions, an “increase of loss” is not insured against, and trial judge correctly decided that insurer was entitled to prevail as a matter of law. LANDLORD/TENANT 27-2-7651 Abraham Kramer v. Manuela Irizarry, App. Div. (4 pp.) Landlord, in changing tenant’s lease terms after 18 years to exclude other occupants, failed to meet his burden of reasonableness, and judgment of possession entered against tenant, who refused to sign the new lease, was improper. NEGLIGENCE — TORT CLAIMS ACT 31-2-7652 Christopher Gregory v. Rutgers, the State Univ. of N.J., et al., App. Div. (3 pp.) Where plaintiff placed attorney general on notice of claim within 18 days of his slip and fall on university property, and attorney general did not communicate to plaintiff that the university required separate notice until well after the expiration of the 90-day notice period, late notice of claim to university was correctly allowed due to substantial compliance with the Tort Claims Act. WILLS, ESTATES AND TRUSTS 38-2-7653 In the Matter of the Estate of Warren C. Lahue, Deceased, App. Div. (13 pp.) Trial court erred in granting summary judgment to charity, invalidating decedent’s last will in favor of a earlier will, since sufficient evidence was presented to permit a rational fact-finder to conclude that charity was not the intended third party beneficiary of a consent judgment settling decedent’s prior family court proceeding, out of which settlement the earlier will was drawn. CRIMINAL LAW AND PROCEDURE 14-2-7654 State v. Jose Tavares, App. Div. (12 pp.) Although judge acted improperly in resentencing the defendant in camera, since the resentencing on remand was not simply a ministerial task but required proceedings to be conducted anew, the new sentence was within the parameters of statutory limits, and, since the state failed to seek correction of the sentence or appeal in a timely fashion, its appeal of the resentence is dismissed. [Approved for publication Jan. 24, 1996. Available online in NJ Full-Text Decisions.] 14-2-7655 State v. Michael Williams; State v. Leslie M. Luke, App. Div. (6 pp.) Since possession of drugs in a school zone does not create an offense different from the crime of drug possession and is not an element of that crime, but rather, enhances the punishment at the time of sentencing for the crime of drug possession itself, jury could have been misled by prosecutor’s statements that two separate crimes would be proven against defendants, and judge’s attempt to rectify the problem, by telling jury that it did not have to decide whether the possession was within 1,000 feet of a school, allowed an inference of criminality because of the proximity of defendants’ conduct to school property, and the convictions are reversed. FEDERAL COURT CASES INSURANCE — DISABILITY — R.I.C.O. 23-7-7656 Centennial Life Ins. Co. v. Marcy Gold, etc., et al., U.S. Dist. Ct. (19 pp.) The court denies defendants’ motions to dismiss civil RICO counts of plaintiff insurer’s suit — alleging fraud surrounding the procurement of disability policies and benefits — since the insurer has adequately pleaded wire and mail fraud under Section 1961(1)(B), investment violations under Section 1962(a), and the necessary elements of conspiracy under 1962(d). LABOR AND EMPLOYMENT — DISCRIMINATION 25-7-7657 James Valle v. Marvin T. Runyon Jr., etc., et al., U.S. Dist. Ct. (12 pp.) Postmaster and officer in charge of post office branch are granted summary judgment on various claims by postal custodian, including (1) a wrongful termination claim, since custodian’s grievance was settled and he returned to work, making the issue moot, (2) racial discrimination and reprisal claims, since custodian failed to contact an EEO counselor and therefore is precluded from pursuing this claim for failure to exhaust his administrative remedies, (3) a claim against the head branch officer, since a federal discrimination action must be brought against the department head, not branch officer, and (4) hostile work environment claim, since one incident of the uttering of a racial epithet is insufficient to prove that the discrimination was pervasive and regular.

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