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Vol. 4 No. 6 Decisions Released Jan. 10, 1996 Editor’s Note: No appellate opinions were released today. The cases in today’s Alert are those dated January 8, 1996 that the court had intended to release on Monday. STATE COURT CASES ALCOHOLIC BEVERAGES — DRAM SHOP — NEGLIGENCE 47-2-7513 Ty Paul Steele v. Mums Inc., etc., et al., App. Div. (11 pp.) The record is sufficient to affirm jury verdict finding tavern primarily negligent for injuries plaintiff sustained in an altercation in tavern’s pool room, both on negligent supervision and negligent service theories, and the allocation of fault as to the two theories is also affirmed; even though the tavern had different carriers defending the two theories, the tavern was still only one defendant, and any complaint with the fault allocation under the theories is more appropriate for a declaratory judgment action between the carriers. CORRECTIONS 13-2-7514 Derrick Hardwick v. William H. Fauver, App. Div. (4 pp.) Decision of Department of Corrections commissioner denying plaintiff’s request for modification of his sentence was supported by substantial credible evidence, and commissioner had the authority to reject Special Classification Review Board’s recommendation that plaintiff’s exceptional progress should minimize continued confinement. EDUCATION 16-2-7515 David Rollins v. Bridgewater-Raritan Regional School Dist., et al., App. Div. (12 pp.) Rejection of plaintiff’s challenge to nominating petition as untimely, even though it was filed only two days late, is affirmed, since plaintiff, although acting in good faith, has not shown sufficient reason for his delay to relax the time constraints under the statute. FAMILY LAW 20-2-7516 Mary Ann O’Brien v. James M. O’Brien, App. Div. (10 pp.) Denial of parties’ cross-motions for reconsideration of divorce judgment is reversed, since (1) the trial judge should have discussed the statutory factors and set forth his conclusions to justify the award and amount of permanent alimony to wife, (2) although there is no abuse of trial judge’s discretion in his refusal to give husband a credit for his “would-be commission” on the sale of marital property, the record is unclear whether judge intended to require wife to reimburse husband for part of a personal loan he incurred in connection with that sale, and (3) trial judge erred in adjusting the value of husband’s pension because of wife’s expected future earnings. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7517 Sharon Catananzi v. Bd. of Review, et al., App. Div. (3 pp.) Since plaintiff made no attempt to resolve problems she experienced at work due to a newly operational computer system, the board’s decision that she resigned voluntarily because she was dissatisfied because of the nature of her new job tasks, and was therefore ineligible for unemployment benefits, is affirmed. MUNICIPAL LAW — PUBLIC ASSISTANCE 30-2-7518 Sandra M. York v. Twp. of East Brunswick, et al., App. Div. (19 pp.) Although township was justified in terminating plaintiff’s public assistance benefits due to plaintiff’s refusal to cooperate with the continuing eligibility process, township’s failure to give her proper statutory notice requires that she be deemed eligible for the period before notice finally was given properly. MUNICIPAL LAW — PUBLIC WATER SUPPLIES 30-2-7519 State of New Jersey/Twp. of Stafford v. Robert Kusznikow, App. Div. (7 pp.) Since landowners have not produced any authority to support their contention that municipal ordinance compelling them and other residential property owners to connect to a municipal water line is unconstitutional, their challenge is without merit and their conviction for violating the ordinance is affirmed. PHYSICIAN/PATIENT — DENTISTS 29-2-7520 Lenyr Villa-Lobos v. Hugh Doherty, D.D.S., et al., App. Div. (3 pp.) Judgment properly dismissed plaintiff’s dental malpractice complaint based on jury’s verdict that neither defendant was negligent, and plaintiff’s attacks on portions of the jury instructions are without merit. TAXATION 35-2-7521 Tower Center Assocs. v. Twp. of East Brunswick, App. Div. (9 pp.) On taxpayers’ challenge to assessment of their commercial complex, tax court judge did not err in limiting hearing to the reasonableness of assessor’s underlying data — precluding taxpayers from introducing proof of value — since taxpayers failed to comply with the tax assessor’s written request for financial information within the 45-day statutory time period, and taxpayers charge that the assessor’s request was illegal and overbroad should have been raised during that 45-day period. [Approved for publication Jan. 8, 1996. Available online in NJ Full-Text Decisions.] TRANSPORTATION — ARBITRATION 49-2-7522 United Transp. Union v. N.J. Transit Corp., App. Div. (4 pp.) Union’s application to vacate arbitration award was properly denied, since the arbitrators properly concluded, within the scope of their authority, that federal transit law was not applicable to the claims of bus company’s employees, and state law governed the issues. FEDERAL COURT CASES ATTORNEYS — FEES — CHOICE OF LAW 04-8-7523 Kirk Mitzel, et al. v. Westinghouse Elec.Corp., et al., Third Cir. (19 pp.) The district court properly limited attorneys’ fees by applying the New Jersey Contingency Fee Rule — despite retainer agreement executed between Pennsylvania residents and attorneys — since, even though the right of a party or an attorney to recover attorneys’ fees from another party in a diversity action is a matter of substantive state law, an attorneys’ fee issue affecting the allocation of funds between the attorney and the client in a diversity case is a matter of procedure governed by the law of the forum. [Available online in 3rd Circuit Court - Court of Appeals.] INSURANCE — RECONSIDERATION 23-7-7524 Lake Area Health Sys., Inc., et al. v. Royal Indem. Co., U.S. Dist. Ct. (5 pp.) In an indemnification action, where court earlier had denied summary judgment against insurer since plaintiffs had not provided insurer with required notice of claims against unnamed defendants, plaintiffs’ motion for reconsideration is denied, since, even though the plaintiffs provided a copy of the amended complaint to the insurer, and it included allegations against the unnamed defendants, plaintiffs did not mention these claims in their cover letter, where they specifically discussed only the potential claims against the named defendants. (For prior opinion, see DDS No. 23-7-7100 in Alert dated Nov. 21, 1995.) TRANSPORTATION — GOVERNMENT — BIDS 49-7-7525 Suburban Transit Corp., et al. v. Twp. Council of E. Brunswick, et al., U.S. Dist. Ct. (42 pp.) The court denies bus company’s application for preliminary injunctive relief — seeking to prevent township from entering into a contract with another bus company that successfully bid for a contract to provide service to two park-and-ride facilities — since (1) the bus company’s argument that the contract is preempted by federal law will not likely succeed at trial, (2) the ordinance and bid specifications do not unduly burden interstate commerce, nor do they violate the constitution’s “takings clause,” (3) balancing the hardships that the bus company and the township would suffer, the township prevails, and (4) the bid specifications comply with the fairness provisions of New Jersey public contracts law.

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