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Vol. 4 No. 7 Decisions Released Jan. 11, 1996 Editor’s Note: No appellate opinions were released today. The cases in today’s Alert are those dated January 9, 1996 which the court had intended to release on Tuesday. STATE COURT CASES CIVIL RIGHTS — POLICE ACTION 46-2-7526 Carmen A. Malignaggi, etc., et al. v. County of Gloucester, et al., App. Div. (7 pp.) In a case filed by estate of decedent — who was killed by members of a SWAT team when he aimed a rifle at them during a hostage situation — summary judgment was appropriate as to all defendants because the undisputed facts demonstrated that the police officers acted in good faith and not maliciously or willfully in disregard of their duties and thus were entitled to immunity under N.J.S.A. 59:3-3. EDUCATION — STUDENT DISCIPLINARY HEARINGS 16-2-7527 Todd S. Levine v. Richard Stockton College of N.J., App. Div. (8 pp.) The court affirms a special administrative hearing panel’s decision to expel college student based upon a charge of off-campus conduct involving a fight between fraternity brothers, since the evidence supports the charge, and student was accorded all the rights to which he was entitled under the college handbook and the law governing such hearings, which did not include the right to adversarial participation by counsel. EDUCATION — TENURE 16-2-7528 Ellen Francey v. Bd. of Educ. of the City of Salem, Salem County, App. Div. (8 pp.) Board of education properly determined that home economics teacher, who was laid off during a reduction in force and placed on a preferred reemployment list — and who later acquired a teaching certificate endorsement for elementary education — was not entitled to preference over qualified non-tenured teachers for available elementary school positions, since her reemployment rights are based upon the scope of her certificate as of the lay-off date, and do not include the after-acquired endorsement. [Approved for publication Jan. 9, 1996. Available online in NJ Full-Text Decisions.] FAMILY LAW 20-2-7529 Teresa Leyland v. Jeffrey Leyland, App. Div. (4 pp.) The motion judge correctly denied wife’s application for increased child support only 23 months after a property settlement agreement was signed and only 15 months after a divorce judgment was entered, given the relatively recent settlement, the fact that her claim that the husband’s assets may have increased due to investments was speculative, and because her temporary unemployment was an insufficient basis for child support modification. GOVERNMENT — BIDS — MOOTNESS 21-2-7530 George Harms Constr. Co. Inc., etc., et al. v. City of Trenton, etc., et al., App. Div. (7 pp.) On plaintiff’s appeal of defendant’s award of contract to upgrade sewage sludge treatment facilities, alleging bid solicitation violations, the court concludes that, because the contract already has been substantially performed by the successful bidder, there is no relief that could be awarded to plaintiff, and, because the case turns on the bid solicitation’s specific language and does not involve an issue of general public importance that should be decided to provide future guidance to public contracting agencies, the appeal is dismissed as moot. INSURANCE 23-2-7531 Teddi Jean Gryczkowski v. Continental Ins. Co. of N.J., et al., App. Div. (9 pp.) Where plaintiff incurred additional medical costs allegedly related to two injuries subsequent to the dates of the last payments by the respective insurers for each of the injuries, but where she failed to file timely coverage complaints under the statute within two years of the final payment dates, the motion judge properly granted summary judgment to both insurers under the statute of limitations, and the fact that the second insurer issued a payment in error beyond the date of the actual “last payment” did not extend the limitations period. INSURANCE — VERBAL THRESHOLD 23-2-7532 Edward A. Bontempo v. Emad A. Saadmina, et al., App. Div. (6 pp.) The motion judge correctly concluded that plaintiff had shown objective medical evidence of injury, however, the judge erred when he dismissed the case due to the plaintiff’s failure to show that the injuries had a substantial impact on his life, since, despite plaintiff’s relative youth, the combination of his employment limitations and his inability to drive and sleep comfortably raised an issue of material fact respecting this issue. 23-2-7533 Saundra Green v. Sidney Rossner, et al., App. Div. (7 pp.) Although the record and plaintiff’s evidence may not be sufficient to prevail at trial, viewed indulgently for summary judgment purposes, the record contains sufficient evidence to suggest that the plaintiff, a woman in her 20s, sustained injuries in an accident that were objectively manifested in an MRI of her cervical spine and in the CT scan of her lumbar spine, and the judge should not have dismissed her case. LANDLORD/TENANT 27-2-7534 Estrella Piemontese v. Mike Merlo, App. Div. (3 pp.) Trial judge’s finding that lease encompassed an entire house, as contended by tenant, and not just a portion, as contended by landlord, is supported by the credible evidence and affirmed. MUNICIPAL LAW 30-2-7535 Builders League of South Jersey Inc., etc. v. Borough of Pine Hill, etc., et al., App. Div. (7 pp.) Municipality’s ordinance requiring the payment of past-due real estate taxes on a subject property as a condition for a building permit was properly declared invalid by the motion judge, who concluded that the Uniform Construction Code Act pre-empts the ordinance, and the provisions of N.J.S.A. 40:52-1.2, which the municipality said gave it the right to require such payment, do not apply. [Approved for publication Jan. 9, 1996. Available online in NJ Full-Text Decisions.] NEGLIGENCE 31-2-7536 Mary E. O’Connell v. Deborah M. Dacchille, et al., App. Div. (19 pp.) The trial judge erred in permitting (1) defense counsel to cross-examine plaintiff on her PIP application because the subpoenaed application was not provided to plaintiff’s counsel prior to the trial, (2) defendant’s expert to testify concerning two specific medical studies because the names and details of the publications were not provided to plaintiff’s counsel prior to trial as requested, and (3) defense counsel to refer in his opening to the reason why plaintiff chose the verbal threshold, since the improper reference could not be cured by any instruction, and the cumulative effect of these errors requires a new trial. NEGLIGENCE — TEACHERS 31-2-7537 Lee A. Gordon, etc., et al. v. Princeton Day School, et al., App. Div. (15 pp.) The court affirms jury verdict finding gym teachers and school 100 percent negligent for dental injuries suffered by 8-year-old student when teacher fell on her during a game of “octopus tag” in gym class, and, defendants’ challenges to jury instructions on the standard of duty owed, proximate cause and pain and suffering are without merit. NEGLIGENCE — TORT CLAIMS ACT — WEATHER IMMUNITY 31-2-7538 Stanley Miles v. Borough of Freehold, et al., App. Div. (14 pp.) Judge properly dismissed plaintiff’s case against municipality and county for injuries suffered when he drove over a patch of ice and slid into a telephone pole, since municipality neither possessed nor controlled the area where the accident occurred, and, under N.J.S.A. 59:4-7, the county was entitled to immunity for injuries caused solely by the effect of weather conditions on streets and highways. REAL ESTATE 34-2-7539 John Himmelman, et al. v. R.C.G. Development Corp. of Freehold II Inc., App. Div. (10 pp.) No cause verdict on plaintiffs’ breach of contract complaint against residential real estate developer is affirmed, as is the judgment for developer on his counterclaim, since the evidence supports developer’s contentions that plaintiffs were aware of location of house on lot, that selection of siding color was part of the contract and developer was entitled to liquidated damages. REAL ESTATE — FRAUD 34-2-7540 Joseph Knapp, Sr., et al. v. Harvey Schechter, et al. v. David Rosenblum, et al., App. Div. (11 pp.) Credible evidence supports the judge’s determination that sellers of real estate deliberately concealed or failed to disclose material fact of septic tank problems to buyers, and judgment for consumer fraud damages is affirmed. REAL ESTATE — TAX SALE CERTIFICATES 34-2-7541 Richard Simon, Trustee v. Twp. of Dennis, App. Div. (3 pp.) Where plaintiff relied on a tax map and failed to examine the recorded tax sale certificate or perform a title search before taking assignment of municipality’s tax sale certificate, and such an investigation would have revealed the acreage discrepancy plaintiff later discovered, the plaintiff’s assignment recission action was properly dismissed. CRIMINAL LAW AND PROCEDURE 14-2-7542 State v. Fernando Lopera, App. Div. (5 pp.) Since defendant established a prima facie case to warrant a hearing on the issue of the ineffective assistance of his counsel, his motion for post-conviction relief was improperly denied. Additional state opinions approved for publication: 07-2-6351 R. Jennings Mfg. Co., Inc. v. N. Elec. Supply Co. Inc., et al.; 17-2-6771 I/M/O Cadgene Family Partnership; 31-2-6851 William F. Randazzo Jr., et al. v. Twp. of Washington, etc., et al. [All available in NJ Full-Text Decisions.] FEDERAL COURT CASES COMMERCE — TELECOMMUNICATIONS 08-8-7543 MCI Telecommunications Corp. v. Teleconcepts Inc. v. Bell of Pa., Third Cir. (70 pp.) (1) Although the district court abused its discretion in inexplicably finding “good cause” for plaintiff’s lack of diligence in serving defendant, the retroactive effect of Rule 4(m) gave the district court the discretion to allow this action for collection of long-distance fees to proceed, even in the absence of “good cause,” and, therefore, the district court properly denied defendant’s dismissal motion; (2) Defendant’s obligations to plaintiff became past due 30 days after the date of each particular invoice, and, therefore, some of the invoices are time-barred, but others are not, and district court erred in finding that none of the invoices were time barred; (3) Although the district court had jurisdiction over the third-party complaint, the court erred in deciding the liability issue, since that claim must be transferred to the Pennsylvania Public Utilities Commission for such a determination. [Available online in 3rd Circuit Court - Court of Appeals] DEBTOR/CREDITOR — CONTRACTS — CONSTRUCTION 15-7-7544 Consol. Rail Corp., etc. v. Morris Indus. Bldrs. Inc., etc., U.S. Dist. Ct. (9 pp.) While plaintiff might be faulted for failure to provide defendant with requested detailed information about the manner in which it computed its charges as the construction project proceeded, the evidence at trial established that the charges set forth in its invoices and supplemental materials are in accordance with the parties’ agreement, and defendant must pay them. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-7545 Ariel B. Gatewood v. Revlon Inc., U.S. Dist. Ct. (18 pp.) Summary judgment is granted to employer on plaintiff’s complaint alleging racial discrimination in failure to promote and constructive termination, since (1) even viewing the uncontroverted facts most favorably to the plaintiff, it is impossible to conclude that the working conditions were intolerable, or that a reasonable person in plaintiff’s position would have resigned, and (2) plaintiff failed to prove that he was qualified for the positions to which he alleges the employer failed to promote him.

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