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Vol. 4 No. 16 Decisions Released Jan. 25, 1996 STATE COURT CASES CORRECTIONS 13-2-7658 John Hill v. N.J. Dept. of Corrections, App. Div. (3 pp.) Although in considering the question of disproportionate penalties a prisoner’s punishment must not merely be compared with the most lenient punishment that has been given, in a case where prisoner lost 270 days of “commutation” time, adding nine months of “real” time to his sentence for unauthorized possession of $40 over the allowed $50, the punishment is facially disproportionate to that given to two other inmates, and was beyond the discretion of the administrator. 13-2-7659 Artis Kato v. Patrick Arvonio, App. Div. (4 pp.) Prisoner was afforded all due process rights in disciplinary proceedings for his possession of “unauthorized tools,” and in view of the seriousness of his offense and the security threat it posed, sanctions imposed were not excessive. DEBTOR/CREDITOR 15-2-7660 Bethpage Federal Credit Union v. Howard Bilanin, App. Div. (3 pp.) Since creditor did not provide sufficient support to establish the principal balance owed by debtor, summary judgment should not have been granted. DEBTOR/CREDITOR — CONSTRUCTION 15-2-7661 Robert H. Summers Inc. Mason Contractors, etc. v. Mayer Rosenbaum, et al., App. Div. (7 pp.) The indemnification and hold-harmless provision in settlement agreement over construction contract litigation was intended to operate only while the settlement agreement was in effect without default, and, since defendant defaulted on the agreement, trial judge correctly held that plaintiff was entitled to proceed to enforce its mechanic’s lien claim. EDUCATION 16-2-7662 Joyce Breitwieser v. State-Operated School Distr. of the City of Jersey City, etc., App. Div. (19 pp.) The tacking of periods of unrelated certification is not permitted, and trial judge properly held that teacher could not acquire tenure for service under a permanent certificate by tacking on an earlier service period under an emergency certificate in a different field. [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] ENVIRONMENT — SPILL ACT 17-2-7663 Marie Marsh v. N.J. Spill Compensation Fund and Envt’l Claims Admin., etc., App. Div. (15 pp.) Although there are factual issues material to whether plaintiff is a person “responsible” for discharge of pollutants onto her property and therefore ineligible to receive Spill Fund reimbursement, as a matter of law, she is ineligible because she is a donee of the property from a “responsible person.” [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7664 Rahway Hosp. v. Bd. of Review, et al., App. Div. (4 pp.) Appeal tribunal’s finding that employee was not disqualified for unemployment compensation benefits is reversed, since, although its determination that the employee’s conduct did not constitute gross misconduct is technically correct since the conduct occurred after receipt of a termination notice, the finding that employee did not threaten her supervisor is not supported by substantial credible evidence. 25-2-7665 Linda Visco v. Bd. of Review, etc., App. Div. (5 pp.) Claimant was properly held ineligible for unemployment compensation benefits for her failure to follow reporting requirements since, following an initial denial, she clearly was advised to continue to mail certification forms during the appeal process, and did not do so. NEGLIGENCE 31-2-7666 Maria Bastamov v. Brandywine at Florham Park, et al., App. Div. (10 pp.) The trial court properly held that adjoining condominium unit owners were not liable to plaintiff for the injuries she suffered when she fell on snow and ice on steps leading to the breezeway of her rented condominium unit, since this area was not under the control of the owners, but was under the exclusive control of the condominium association. NEGLIGENCE — JURY CHARGES 31-2-7667 Chiji A. Ohayia v. David Cass, App. Div. (7 pp.) (1) While charging conferences in chambers may prove useful in formulating a charge, Rule 1:8-7 calls for the trial court, prior to closing arguments, to place its rulings on the record as to any requests to charge that have been submitted by the parties. (2) In this case, where defendant rear-ended plaintiff’s vehicle on a snowy highway entrance ramp, judgment in favor of defendant following a no-cause jury verdict is reversed, since judge erred in failing to instruct jury, despite plaintiff’s request to do so, that a driver should not follow another vehicle too closely. [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] 31-2-7668 Joan Perrapato v. Borough of Elmwood Park, et al., App. Div. (5 pp.) In case involving an accident caused by plaintiff’s car hitting a raised “valve cover” in the street, although the trial judge made significant errors in her presentation of the issues of the jury, especially the injection of derivative design immunity principles, these errors were harmless, since jury answered question regarding whether the condition was “hazardous” in the negative, and jury never reached consideration of issues on which harmful instructions were given. NEGLIGENCE — TORT CLAIMS ACT — LATE NOTICE OF CLAIM 31-2-7669 Anthony Zois v. N.J. Sports & Exposition Auth., App. Div. (7 pp.) (1) Although plaintiff’s attorney’s letter to defendant clearly indicated an intention to file a formal claim upon receipt of the requested medical report from defendant, and, as such, might be considered substantial compliance with the notice provisions of the Tort Claims Act, the plaintiff has failed to prove that this request actually was received, and it is, therefore, a nullity insofar as satisfying the notice requirement. (2) The excuses for late filing — that the attorney’s secretary misplaced the file and the misfiling was not discovered by the attorney until five months later — might have satisfied a statute that had been in effect until two months before plaintiff’s fall, but they fail under the amended language to constitute “extraordinary circumstances.” [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] 31-2-7670 Carmine DeSanctis, et al. v. City of New Brunswick, App. Div. (2 pp.) Since plaintiff was unable to point to a particular hole, rut or other defect that caused his fall, he failed to establish the prerequisite existence of a “dangerous condition,” and summary judgment in favor of municipality was proper. TORTS 36-2-7671 Laurie Pepe, et al. v. Brenda DeRogatis, App. Div. (7 pp.) Although, based upon what was before it at the time, it was within trial court’s discretion to grant defendant’s motion for dismissal with prejudice (for plaintiffs’ continued failure to fully answer interrogatories), the trial court was too unsparing in its disposition of the motion to reconsider, and “exceptional circumstances” for the failure to answer were shown when attorney detailed the serious illness of his father, which distracted him from paying appropriate attention to detail of this case. CRIMINAL LAW AND PROCEDURE 14-2-7672 State v. James L. Damon, App. Div. (9 pp.) Denial of petitioner’s post-conviction relief application is reversed, because the trial judge permitted the petitioner to be shackled in the presence of the jury. [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE — BATTERED CHILD SYNDROME 14-2-7673 State v. Sharon Moorman, App. Div. (17 pp.) The trial judge properly recognized Battered Child Syndrome as a valid scientific premise, presenting a valid, reliable basis for admission of expert testimony tending to show absence of accident or mistake, and, even if this were not so, any error in such a conclusion would have been harmless in this case, since evidence of prior episodes of child abuse unconnected with the direct cause of the child’s death were admissible as such proof. [Approved for publication Jan. 25, 1996. Available online in NJ Full-Text Decisions.] Additional State Opinions Approved for Publication: 01-2-5785 Innkeeper Inc. t/a Mason Jar v. Remington Inc., et al.; 20-2-7628 D.C. v. F.R. [Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES CONTRACTS — R.I.C.O. — TORTS 11-7-7674 Sheldon H. Schiffman v. Sheldon Motors of E. Brunswick., et al., U.S. Dist. Ct. (14 pp.) On plaintiff’s challenge of stock purchase agreement and the actions of his sons, who are owners of family car dealership, as well as accountants and lawyers involved in the business, (1) defendants’ motion to dismiss RICO counts is granted since, even overlooking the obvious statute-of-limitations bar, there was neither a racketeering act nor a pattern of racketeering activity, (2) motion to dismiss tax fraud claims is granted, since there is no suggestion as to how the stock purchase agreement violates the Internal Revenue Code, and, (3) since all of plaintiff’s state law claims are barred by the entire controversy doctrine, they, too, are dismissed. LABOR AND EMPLOYMENT — HANDBOOKS — AT-WILL STATUS 25-7-7675 Arleen Brown v. J.C. Penney Co. Inc., et al., U.S. Dist. Ct. (14 pp.) Defendants are granted summary judgment on plaintiff’s wrongful termination suit, since both the plaintiff’s employment application and the employee handbook created no more than an at-will employment status, and plaintiff has failed to prove that her termination (for taking excessive sick leave) either violated public policy or was discriminatory. NEGLIGENCE — JURISDICTION — REMAND 31-7-7676 Carolyn Miller, et al. v. Wal-Mart Stores Inc., et al., U.S. Dist. Ct. (7 pp.) Suit arising out of plaintiff’s accident in a Wal-Mart store is remanded to state court on plaintiffs’ motion, since plaintiff asserts that her claim is not worth the $50,000 required to give federal courts jurisdiction, and defendant has not produced any evidence relating to the actual amount in controversy to refute this assertion.

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