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Vol. 3 No. 249 Decisions Released Jan. 4, 1996 STATE COURT CASES ATTORNEYS — PER DIEM 04-2-7476 Bonnie Muniz, et al. v. Grand Photo Inc., et al., App. Div. (5 pp.) While plaintiff’s per diem attorney, like any other attorney, should have been totally familiar with plaintiff’s file and made only representations known to be true in a settlement conference, under the facts of this case, where defendants’ counsel and insurance adjuster never revealed to the per diem attorney that their previous $25,000 settlement offer had been refused by plaintiff, plaintiff is entitled to relief from order enforcing per diem attorney’s settlement of case for $10,000. CIVIL PROCEDURE 07-2-7477 Scott Lewis, et al. v. Gabriel Warshawsky, et al., App. Div. (5 pp.) Even if purported service of settlement enforcment motion on defendant was invalid, the technical error was cured by defense counsel sending the motion papers to his client before the return date and, despite defendant’s actual notice of the motion weeks in advance, he inexplicably failed to respond and oppose it; judgment was properly entered on the settlement. FAMILY LAW 20-2-7478 Margo J. Ruddy v. Jeffrey P. Ruddy, App. Div. (10 pp.) The trial judge must reconsider wife’s alimony application based on a more realistic assessment of husband’s income and earning capacity now that he has been reinstated to the practice of law, and based on developments regarding the sale of the marital residence. 20-2-7479 Alexandros Dakouvanos v. Dimiria Dakouvanos, App. Div. (3 pp.) Although son was 23 and less than diligent in pursuing his college degree at the time father moved to have him declared emancipated, son’s economic dependence upon his parents while in various schools was clear from the record, and father’s motion was properly denied. 20-2-7480 Walter Kamfolt v. Virginia Kamfolt, App. Div. (4 pp.) Where parties’ divorce judgment specifically stated that husband’s retirement would be considered a “change of circumstances” for purposes of future alimony determinations, and where there was substantial medical evidence to refute the judge’s apparent impression that husband’s early retirement was purely voluntary, it was a manifest injustice for the motion judge to conclude that husband’s early retirement did not constitute a “change in circumstances” justifying an alimony reduction. GOVERNMENT — BIDS 21-2-7481 Bodies By Lembo Inc. v. County of Middlesex, et al., App. Div. (14 pp.) While trial judge correctly ruled that a hearing to correct bid non-conformities requested by defendant, a successful contract bidder, and held without notice to other bidders, violated Local Public Contracts Law and therefore invalidated the bid, the judge erred in ordering the municipality to readvertise for bids, since plaintiff’s bid conformed in every respect, qualifying it as the lowest responsible bidder, and the trial court must order that the contract be awarded to plaintiff. [Approved for publication Jan. 4, 1995. Available online in NJ Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-7482 Richard Coleman v. Brett Kuntz, et al., App. Div. (4 pp.) Since plaintiff’s doctor did not compare plaintiff’s condition after a long course of earlier treatment with his condition after an accident, the causal relationship between plaintiff’s disability and the accident was not proved and his case was correctly dismissed. LANDLORD/TENANT — ATTORNEYS’ FEES 27-2-7483 Bae, So & Pak v. Consolidated Bakers Inc., et al., App. Div. (3 pp.) Because the parties’ lease provided a contractual right for landlord’s entitlement to reasonable attorney fees in dispossess action against tenant, judge’s fee award to landlord was proper, even though the tenant did not acknowledge any wrongdoing and the case ultimately was settled, since the settlement included more than $10,000 in acknowledged arrearages. PRODUCT LIABILITY 32-2-7484 John Viola, et al. v. Carlton Machine Tool Co., etc., et al. v. Nat’l Automatic Tool Co., App. Div. (9 pp.) Trial court correctly granted summary judgment to defendant UNC Corp., ruling that it did not have any successor corporate liability for any defect in a drill press that caused plaintiff’s injuries, since UNC did not continue to manufacture the drill press product line after it acquired the original manufacturer’s assets, and the sale of the remaining inventory as a liquidation of the acquired company’s assets is an insufficient basis for the imposition of successor liability. PRODUCT LIABILITY — FORUM NON CONVENIENS 32-2-7485 Corey Moyer v. Spieth-Anderson, U.S.A. Inc., et al. v. John Does A-Z, App. Div. (17 pp.) Where Pennsylvania plaintiff — injured and paralyzed in a Connecticut gymnastics accident — filed suit against two New Jersey companies, in New Jersey court, alleging defective manufacture of a gymnastics mat, and the New Jersey companies later were dismissed from the suit when it was discovered that the mat was made by Canadian and Ohio companies, trial judge erred in denying defendants’ motion to transfer the case to Connecticut based on forum non conveniens, since New Jersey has no local interest in the action, witnesses and evidence are located in Connecticut, and plaintiff’s difficulty in commuting to Connecticut can be accommodated in other ways; the transfer, however, is subject to all defendants submitting to Connecticut’s jurisdiction and waiving the Connecticut statute of limitations. PUBLIC RECORDS 52-2-7486 Wells H. Keddie, et al. v. Rutgers, the State Univ., App. Div. (17 pp.) In a case where plaintiffs seek the production of certain documents pertaining to the university’s legal fees in employment litigation, (1) the trial judge correctly held that the university is subject to the state’s Right to Know Law but, (2) in light of the statutory requirement that university must have its accounts available for audit at any time, the underlying billing documents are public records under the law, and the judge erred in holding there were not. [Approved for publication Jan. 4, 1995. Available online in NJ Full-Text Decisions.] Correction: In the Alert dated Jan. 4, 1996, in the summary of case number 52-2-7486, Wells H. Keddie, et al. v. Rutgers, the State Univ., the last phrase should read, ” … and the judge erred in holding they were not.” CRIMINAL LAW AND PROCEDURE — TESTIMONY UNDER HYPNOSIS 14-1-7487 State v. Frank Fertig, etc., Supreme Ct. (19 pp.) The proffered post-hypnotic testimony of the State’s witness does not meet the requirements of State v. Hurd, 86 N.J. 525 (1981), and therefore is inadmissible, and the Hurd guidelines apply even though the witness sought hypnosis independently and without the knowledge or involvement of either party to the prosecution. [Approved for Publication. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES BANKRUPTCY — MORTGAGEES — RENTS 42-6-7488 In re: Bridgepoint Nurseries Inc., Debtor, U.S. Bankruptcy Ct. (19 pp.) Debtor’s objection to settlement between its landlord’s mortgagee and the trustee is allowed and approval of the settlement is denied, since landlord’s mortgagee is not entitled to an administrative claim for rents before the consummation of a mortgage foreclosure sale, however, mortgagee is entitled to an administrative claim for the reasonable use and occupancy of the premises for the time debtor actually occupied the premises after the sheriff’s deed was issued to mortgagee. CIVIL RIGHTS — CORRECTIONS 46-7-7489 Barry Robinson v. N. J. State Parole Bd., et al., U.S. Dist. Ct. (8 pp.) (1) Inmate’s civil rights action against State Parole Board is dismissed since the board, as a state agency, is entitled to immunity in federal court under the Eleventh Amendment, and, even if it were not, state agencies cannot be sued under Section 1983; (2) since inmate’s claim that his rights were violated by state Department of Corrections commissioner’s refusal to transfer him to a state facility alleges personal, specific conduct, commissioner’s motion to dismiss is denied, however, inmate’s claim that commissioner conspired with county sheriff is dismissed since no facts have been alleged to support such a claim. CIVIL RIGHTS — IMMUNITIES 46-7-7490 Richard Corcoran Jr. v. Herbert Tate Jr., et al., U.S. Dist. Ct. (14 pp.) Since a prosecuting attorney is absolutely immune from Section 1983 liability for acts within the scope of his duties in initiating and pursuing criminal prosecution, such as evaluating evidence and interviewing witnesses in preparation for trial, plaintiff’s civil rights case against prosecutors for their participation in his rape indictment and prosecution is dismissed, however, since the immunity does not shield prosecutors acting in their investigative capacity, searching for clues and corroboration for probable cause, a municipal police officer working with the prosecutors is not immune from suit, and her motion to dismiss is denied. [Available online in 3rd Circuit - District Courts.]

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