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Vol. 4 No. 12 Decisions Released Jan. 19, 1996 Daily Reporter of N.J. Court Decisions STATE COURT CASES CONTRACTS — REAL ESTATE BROKERS/SALESPERSONS 11-2-7605 Louise C. Bubser v. Joseph Rauh, App. Div. (6 pp.) Although a real estate closing at issue was not covered by a commissions contract between a broker and a saleswoman — who had left her job with the broker two days before the matter on which she had worked came to final terms — the trial judge correctly held that, because the saleswoman was the only person in broker’s office to have anything to do with the transaction and had done all the work to bring the matter to conclusion, she was entitled to her commission on the theory of quantum meruit. ENVIRONMENT — REMEDIATION — ACCESS 17-2-7606 Deleet Merchandising Corp. v. Newark Group Indus. Inc., App. Div. (6 pp.) Although the trial judge may have misinterpreted N.J.S.A. 58:10B-16, he still correctly denied plaintiff access to neighbor’s property for environmental remediation purposes, since plaintiff failed to present any “applicable department oversight document or remediation obligation” from the DEP. NEGLIGENCE — MALPRACTICE — ENTIRE CONTROVERSY 31-2-7607 Perfect Concrete Cutting Co. v. Porro & Porro, et al., App. Div. (7 pp.) The entire controversy doctrine does not bar plaintiff’s legal malpractice action, since the alleged malpractice occurred after the underlying trial ended and was not reasonably known to plaintiff until the conclusion of the motion to enforce the settlement of that case. [Available online in NJ Full-Text Decisions.] 31-2-7608 U.K. Life Ins. Co. v. Saul N. Friedman, etc., et al., App. Div. (10 pp.) The motion judge correctly reasoned that entire controversy doctrine barred lender’s malpractice suit against accountants and lawyers for debtor, since the evidence showed that lender knew that the debtor was highly leveraged at the time of the making of the subject loan, and should have known of the potential negligence or fraud claims against the professionals who prepared and submitted the financial statements presented to lender during the loan application process, and included such claims in suit against defaulted debtor. PHYSICIAN/PATIENT 29-2-7609 Herman Brockman, et al. v. Dr. Arnold Topilow, App. Div. (7 pp.) Since discovery orders requiring plaintiffs to submit expert reports went to the very foundation of the medical malpractice action, and no bona fide reason excused plaintiffs’ failure to submit the reports after numerous opportunities to do so, an ex parte granting of summary judgment dismissing the case was not an abuse of discretion. PRODUCT LIABILITY — FAILURE TO WARN 32-2-7610 David Facendo v. S.M.S. Concast, Inc., App. Div. (16 pp.) In this failure-to-warn case, trial judge erred in denying plaintiff’s request to charge the jury on the natural inferences giving rise to the heeding presumption — that plaintiff would have “heeded” or followed a warning had defendant given one. [Approved for publication Jan. 19, 1996. Available online in NJ Full-Text Decisions.] WORKERS’ COMPENSATION 39-2-7611 Toby Easton-Reinhart v. E.I. Dupont De Nemours, App. Div. (7 pp.) Compensation judge erred in admitting a transcript from a previous case to be used to challenge petitioner’s credibility in her compensation case. CRIMINAL LAW AND PROCEDURE — INTERSTATE DETAINERS 14-3-7612 State v. Stuart Moreau, Law Div. (11 pp.) Given the purposes of the Interstate Agreement on Detainers and the significant impacts that detainers have upon prisoners, it is the duty of the court to make sure that the state exhibits good faith in complying with prisoners’ requests for final disposition of untried matters, and, since the state in this case, despite defendant’s request for final disposition, has indicated no intention of bringing defendant’s indictment to trial within the time allotted under the IAD, the state has constructively violated the IAD and the indictment is dismissed with prejudice. [Approved for publication Jan. 17, 1996. Available online in NJ Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE — JUVENILES — VENUE TRANSFER 14-4-7613 State in the Interest of J.W., Chancery Div. (8 pp.) Where juvenile’s case was transferred from Hudson County to Middlesex County, and Middlesex County acted diligently upon receiving the case in filing its motion to waive juvenile jurisdiction and refer the case to adult court, Middlesex County has established “good cause” to warrant extension of the rule requiring a waiver motion be filed within 30 days of the original complaint, since Middlesex County did not have the case at the time the statutory period expired, and to require the referring county to file timely waiver motions in all cases to protect receiving counties would overburden the courts. [Approved for publication Jan. 17, 1996. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES CONTRACTS — FINANCE LEASES — BONDS 11-7-7614 Financing for Science Int’l Inc. v. A.C. Trams Inc., et al., U.S. Dist. Ct. (26 pp.) On plaintiff’s action for unpaid rent due under an equipment lease for motorized boardwalk trolleys, summary judgment is granted to plaintiff (1) against defendant lessee, since lessee’s conduct in inspecting the trolleys when they arrived, taking possession and operating the trolleys, and making payments constitutes acceptance of the trolleys as a matter of law, which makes the obligation to pay rent unconditional, (2) against principal of lessee since he is liable for rent under the irrevocable guaranty he issued to plaintiff, and (3) against surety of lessee, since the plaintiff is a proper claimant under the bond and the sums due under the equipment lease are covered by the bond. PENSIONS — ERISA — FIDUCIARIES 56-7-7615 Lozada, et al. v. Ryan, Beck & Co. Inc., et al., U.S. Dist. Ct. (8 pp.) In a case alleging that brokerage firm violated its fiduciary duty to pension plan by not managing the plan assets conservatively, (1) although neither the complaint nor the moving papers allege the existence of a writing acknowledging that defendants were “fiduciaries” with respect to the subject pension plan, and the complaint does not, therefore, state a claim for breach of fiduciary duty created under ERISA section 1102(c)(3), the allegations support a claim for such breach under sections 1002(21)(A), and defendants’ motion to dismiss therefore is denied, however, (2) the court agrees that plaintiffs have not stated a claim for breach of a trust agreement, and that count of the complaint is dismissed.

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