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Vol. 4 No. 8 Decisions Released Jan. 12, 1996 STATE COURT CASES ADMINISTRATIVE LAW — PHYSICIANS — LICENSE SUSPENSIONS 01-2-7546 In the Matter of the Suspension or Revocation of the License of John W. Schermer Jr., M.D., App. Div. (5 pp.) Decision of state Board of Medical Examiners to revoke psychiatrist’s license and to impose sanctions for his sexual involvement with female patients is affirmed, and doctor’s contention that the judge showed prejudice against him and should have been disqualified is without merit, since doctor never requested the judge’s recusal. ADMINISTRATIVE LAW — POLICE 01-2-7547 In the Matter of the Disciplinary Hearing of Police Officer Craig Coles, etc. v. Twp. of Neptune, et al., App. Div. (6 pp.) Where a disciplinary hearing against police officer accused of drug charges began and then was suspended pending an appeal of a second disciplinary hearing — which resulted in the officer’s termination — where penalty was reversed in favor of a suspension without pay until the first hearing was resolved, the statutory 30-day period was not re-triggered and defendant had the authority to resume the first hearing beyond the 30-day period. ATTORNEYS — FEES 04-2-7548 Samuel Lachs v. Leo Finkelstein, et al., App. Div. (12 pp.) In a suit for attorney’s fees, proceedings resulting in an order striking defendant’s answer and suppressing his defenses with prejudice did not conform to R. 4:23-5(a)(2), and judgments entered based on the order must be reversed. FAMILY LAW — DOMESTIC VIOLENCE — COUNSEL FEES 20-2-7549 M.W. v. R.L., App. Div. (6 pp.) Although, to avoid a chilling effect under the Domestic Violence Act, the Legislature only provided for counsel fees to a victim and not the prevailing party, this does not mean that the award of fees to the prevailing party is prohibited under every other statute or rule, and the trial court on remand must consider prevailing defendant’s claim that he is entitled to fees under the frivolous litigation statute. [For the decision on the domestic violence complaint, see DDS No. 20-2-4738 in Alert dated 1/17/95; the counsel fee opinion discussed here was approved for publication on Dec. 4, 1995, and released last week. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT 25-2-7550 In re: Elizabeth A. Conlon, etc., App. Div. (6 pp.) Although plaintiff did not know until sometime after she was laid off that an error had been made in her seniority calculation, the Merit System Board’s decision to deny her layoff appeal as untimely cannot be said to be arbitrary or capricious because the plaintiff had been a state employee for more than 20 years and should have been aware of her seniority status, was less than diligent in appealing, and made serious procedural mistakes in her appeal. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7551 Domenic Malinconico v. Bd. of Review, App. Div. (4 pp.) Board’s decision to disqualify plaintiff from benefits because he knowingly provided false answers to questions on mail claim forms regarding his employment is affirmed. 25-2-7552 Gary W. Kessel v. State of N.J., Bd. of Review, App. Div. (4 pp.) Where one of plaintiff’s stated reasons for not returning to his messenger job was that he had been advised by an Internal Revenue Service agent that his employment arrangement was in violation of federal and state law, he was entitled to a hearing on that issue, and the denial of that request was erroneous. LANDLORD/TENANT 27-2-7553 Keith Miller v. Alfred R. Caggia, App. Div. (5 pp.) Although sentence in lease regarding the renewal term was ambiguous, the parties’ actions support the tenant’s argument that, upon renewal, the lease converted from one-year period to a month-to-month, tenant’s surrender of the premises was valid, and he is entitled to double the security deposit wrongfully withheld by landlord. LAND USE 26-2-7554 Sun Co. Inc., etc. v. Zoning Bd. of Adj. of Borough of Avalon, App. Div. (9 pp.) Although, individually, a gas station and a mini-market or convenience store are listed in municipal ordinance as permitted principal uses in the subject zone, the Law Division erred in determining that more than one principal use would be permitted on one lot without a variance under the ordinance, and the decision is reversed. [Approved for publication Jan.12, 1996. Available online in NJ Full-Text Decisions.] NEGLIGENCE — BIFURCATION 31-2-7555 Priscilla E. Jakoweiczuk, et al. v. K-mart Corp., App. Div. (7 pp.) Trial judge correctly bifurcated plaintiff’s personal injury trial since her alleged injuries are substantial and a damages trial would have been lengthy, while the liability issue was straightforward, and the accident’s dynamics were not so intertwined with the injuries that both issues should have been tried together. PHYSICIAN/PATIENT — DENTISTS 29-2-7556 Daniel Diadul v. Richard J. Gawarzewski, D.M.D., App. Div. (7 pp.) Judgment notwithstanding the verdict should not have been granted to plaintiff on her dental malpractice claim, since reasonable minds could differ whether dentist deviated from the established standard of care when he took an impression of plaintiff’s tooth, allegedly leaving some of the impression material in plaintiff’s mouth which seeped below his gum line and caused later problems. 29-2-7557 Suzanne Short, et al. v. Kirk Huckel, D.D.S., App. Div. (4 pp.) Using the new summary judgment standard and weighing the evidence to determine whether there existed a material question of fact, the trial court correctly dismissed plaintiffs’ dental malpractice action as time-barred, determining that the plaintiffs’ fresher deposition testimony acknowledging that they were not happy with their dental treatment outweighed plaintiffs’ mere certification in opposition to the summary judgment motion that they were not aware that their dental problems could have been caused by dentist’s negligence. REAL ESTATE — AFFORDABLE HOUSING 34-2-7558 B.A. Parkway Plaza Inc. v. Twp. of Middletown, App. Div. (13 pp.) Although plaintiff, as owner of a large tract of land for which it seeks high-density rezoning from defendant, has standing to assert the interest of low-income housing candidates, the Council on Affordable Housing reasonably exercised its discretion in finding that plaintiff did not raise material issues of disputed fact sufficient to require yet another delay in implementing the long-deferred Middletown fair share plan, and COAH’s final decision granting Middletown substantive certification is affirmed. CRIMINAL LAW AND PROCEDURE — VIDEOTAPES AS EVIDENCE 14-2-7559 State v. Donald Loftin, App. Div. (39 pp.) Although the merger of certain convictions is reversed, defendant’s convictions relating to the robbery and murder of a casino chambermaid are affirmed, since (1) the issue of identification of a man shown in casino videotapes was critically significant to the case, and the showing of a videotape of defendant in a Sears store to establish his identity provided the only reliable means for an accurate comparison of defendant to the suspect, and far outweighed any prejudicial impact, and (2) a composite casino videotape, condensing surveillance video footage, was properly authenticated. [Approved for publication Jan. 12, 1996. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES BANKRUPTCY — COMMERCE — CARRIERS 42-8-7560 John W. Hargrave, Trustee, etc. v. United Wire Hanger Corp., Third Cir. (5 pp.) On action brought by trustee of bankrupt carrier to collect freight undercharges — the difference between the carrier’s filed rates and negotiated lower rates — the district court properly held that the small business exemption under the 1993 Negotiated Rates Act relieves the shipper from liability for such undercharges, and the trustee’s argument that the Bankruptcy Codes’ anti-forfeiture provisions prohibit application of the exemption is without merit. [For publication. Available in 3rd Circuit - Court of Appeals.] BANKRUPTCY — FORECLOSURE 42-7-7561 MacArthur Executive Assocs. v. State Farm Life Ins. Co., U.S. Dist. Ct. (16 pp.) (1) The Bankruptcy Court correctly scrutinized the language of the assignment of rents and leases to State Farm and concluded that the assignment was not merely a security interest, but an absolute transfer of title, conditioned upon default by the debtor, and the debtor’s argument that the mortgage and security agreement contain inconsistent remedies fails because a mortgage may contain independent remedies for the creditor. (2) Since the debtor has no title to the rents, it cannot provide State Farm with adequate protection of its interest in the commercial office building, and State Farm was therefore correctly granted relief from the stay to proceed with foreclosure. COMMERCE — CARRIERS — TARIFFS 08-7-7562 Van Brunt & Son Inc. v. Thomas & Betts Corp., U.S. Dist. Ct. (7 pp.) Shipper is granted summary judgment on common carrier’s suit for penalties for alleged late payments and recoupment of discounts for freight charges, since, assuming carrier’s position that the parties independently contracted that commercial zone shipments would be subject to the terms and conditions of carrier’s filed ICC tariffs, ICC regulations must then apply, and carrier has not complied with the notice requirements for imposition of loss of discount and deferred payment charges on the shipper. CRIMINAL LAW AND PROCEDURE — MAIL FRAUD 14-7-7563 U.S.A. v. Joseph C. Parlavecchio, et al., U.S. Dist. Ct. (4 pp.) The court denies defendants’ motion to dismiss a count of their indictment, rejecting defendants’ argument that their conduct does not establish a violation of N.J.S.A. 2C:27-7(a) and cannot form the basis for the breach of fiduciary duty which the government asserts as a predicate act of mail fraud, since the defendants rely on commentary from older versions of the statute, which the most recent amendments render inapplicable, and although the statute’s title was not changed to match its amended text, it does not render the statute unconstitutionally vague.

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