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Vol. 3 No. 237 Decisions Released Dec. 15, 1995 STATE COURT CASES AUTOMOBILES — LICENSE SUSPENSION 05-2-7349 C. Richard Kamin, etc. v. Alexander Lopez, App. Div. (5 pp.) Suspension of defendant’s driving privileges for ten months — due to his involvement in a fatal automobile accident — is reversed, since there was insufficient evidence that defendant’s driving was careless, and not the slightest evidence to sustain the holding that the defendant showed no remorse. CONTRACTS 11-2-7350 Grandisa, Inc. v. American Granite, Inc., et al., App. Div. (3 pp.) Plaintiff breached a material term of an oral contract — by failing to pay for the stone which it had removed from defendant’s yard, and failing to take delivery of the remainder of the stone — and therefore judge’s finding that defendant properly cancelled the contract and sold the stone to another party is affirmed. CORPORATIONS 12-2-7351 Jack Holthaus v. Viking Transportation, Inc., etc., et al., App. Div. (2 pp.) Where defendant had alleged in his divorce proceeding that he had no ownership interest in the corporation, but alleges in this corporate ownership action that the shares were put in plaintiff’s name only because of defendant’s bad credit, the court erred in granting summary judgment to plaintiff based on estoppel, and a plenary hearing on the ownership issue is ordered. EQUITY — CONTRACT REFORMATION 18-2-7352 Murray Morein, et al. v. Frank Peterpaul, et al., App. Div. (9 pp.) Judge’s findings concerning defendant’s misrepresentations and lack of scienter are supported by sufficient credible evidence, and reformation of the contract for the sale of a business was the proper remedy. FAMILY LAW 20-2-7353 L.K. v. J.K., App. Div. (14 pp.) Judge’s orders concerning father’s child support obligations and responsibility for his troubled son’s psychiatric fees are affirmed, inter alia, since even though the son’s drug addiction should not trigger the continued obligation of support beyond the point at which emancipation would otherwise occur, it is clear that son’s problems primarily were caused by his diagnosed attention deficit problems, rather than drug addiction; therefore, son was not legally emancipated and father is responsible for his support. FAMILY LAW — ATTORNEYS’ FEES 20-2-7354 Nina Rosenberg v. Ira Rosenberg; Rose & DeFuccio, Esqs. v. Nina Rosenberg, App. Div. (14 pp.) The trial judge erred by summarily concluding that the prior court determination of the reasonableness of wife’s attorneys’ fee application, as it pertained to order that husband was responsible for such fees, determined the firm’s contractual claim asserted against the wife herself, as the firm’s former client. [Approved for publication Dec. 15, 1995. Available online in NJ Full-Text Decisions.] 20-2-7355 Elinore West v. Charles D. West, et al., App. Div. (3 pp.) The trial judge did not abuse his discretion in precluding wife’s former attorney from satisfying his charging lien from an $850 wage execution against the husband, since judge concluded that wife should have priority to those proceeds, and attorney’s lien could be satisfied from future executions. HEALTH — CERTIFICATES OF NEED 22-2-7356 In re Certificate of Need Application of Cherry Hill Women’s Center, App. Div. (11 pp.) Challenge of anti-abortionists to the Commissioner of Health’s granting of certificate of need to women’s center — which certificate allows the center to conduct second-trimester abortions and tubal ligations — was properly dismissed, since the commissioner’s decision sufficiently articulated the basis for his decision and the reasoning behind it, and because there was substantial credible evidence in the record establishing the need for the certificate. LABOR AND EMPLOYMENT — DRUG TESTING — DEFAMATION 25-2-7357 Anthony Colanduoni v. Ortho Pharmaceutical Corp., App. Div. (3 pp.) Defamation claim against employer was properly dismissed, since the objectionable statement — that employee had tested positive for morphine — was true; and, further, any statement concerning the results of drug testing was subject to a qualified privilege, which had not been overcome by any evidence of malice on the part of the employer. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7358 Shailesh A. Shah v. Bd. of Review, App. Div. (5 pp.) Employee was correctly found ineligible for benefits for a certain period of time because he did not report in accordance with applicable regulations, and his excuses for not reporting were found incredible by the fact finder. NEGLIGENCE 31-2-7359 Teresa Schwartz v. Studio Six Lounge, et al., App. Div. (4 pp.) Jury’s decision to grant summary judgment to tavern on plaintiff’s personal injury claim was proper, since jury reasonably could have found that bar employee was acting within the scope of his employment when he started to eject plaintiff from the bar, but that his act of throwing plaintiff down the stairs in reaction to her verbal insult was personal, rather than for the purpose of maintaining the security of the bar. PARENT/CHILD 28-2-7360 In the Matter of the Guardianship of A.M.L., App. Div. (5 pp.) Father’s parental rights to his one-year-old, special needs, son were properly terminated, since the father killed his twenty-five-day-old daughter because he was unable to stop her from crying; and son would be at risk of physical harm if returned to father. PRODUCT LIABILITY 32-2-7361 Joseph Rega, et al. v. Terminal Construction, et al. v. Goya Painting, Inc., App. Div. (7 pp.) The court properly denied partial summary judgment to plaintiff — who fell off a ladder while painting at work — since the issues relevant to the jury’s consideration may depend on the actual proofs at trial, and the legal issues presented on appeal concerning comparative negligence should be properly considered by the jury in the context of the entire record. TAXATION — DISPOSITION OF PARTNERSHIP INTEREST 35-5-7362 Sidney Koch, et al. v. Director, Div. of Taxation, Tax Ct. (10 pp.) (1) Taxpayers’ share of partnership debt — released at the time of the sale of their interest in the partnership — was properly includable in the amount realized in connection with the sale, and was not income from the discharge of indebtedness, (2) no justification existed for not applying the statutory command of N.J.S.A. 54:5-1(c) that the federal adjusted basis be used to determine net gain or income from the disposition of the partnership interest, and, (3) the income attributable to the sale of plaintiff’s partnership interest constitutes a net gain or income from the disposition of property within the purview of N.J.S.A. 54A:5-1(c), and the fact that a portion of such income may be characterized as depreciation recapture for federal tax purposes is irrelevant. [Approved for publication.] WORKERS’ COMPENSATION 39-2-7363 Josephine Knowles v. Charles M. Maltbie Associates, App. Div. (3 pp.) There is sufficient evidence to support the compensation judge’s award of death dependency benefits and funeral expenses to petitioner based on judge’s finding that the excessive work effort of petitioner’s husband, while in respondent’s employ, materially contributed to husband’s fatal heart attack. FEDERAL COURT CASES CONTRACTS — DEVELOPMENT — R.I.C.O. 11-7-7364 Charles W. Geyer v. Newark Economic Development Corp., et al., U.S. Dist. Ct. (71 pp.) Summary judgment is granted to defendants on all of the numerous claims of developer relating to failed development project — including claims of a vast RICO conspiracy of corruption and fraud implicating Newark, its mayor, various public officials, the NEDC, its lawyers and others in a vaguely defined plot to “squeeze” developer financially until he lost his interest in development partnership — since complaint fails to adequately allege RICO violations against any defendant, and court retains jurisdiction solely to determine the amount of sanctions, which are also granted to defendants. PARENT/CHILD — D.Y.F.S. — IMMUNITIES 28-7-7365 James J. Rossini v. N.J. Div. of Youth and Family Services, et al., U.S. Dist. Ct. (13 pp.) Parents’ claim that D.Y.F.S. family service specialist wrongfully initiated child abuse proceedings against them — depriving them, under color of state law, of their fourteenth amendment constitutional rights — must be dismissed since specialist reasonably believed in good faith that probable cause of child abuse existed, and she therefore enjoys qualified immunity from suit. PRODUCT LIABILITY — CIVIL PROCEDURE 32-7-7366 Delta Tanning Corp. v. Classic Leather Sales Corp., et al., U.S. Dist. Ct. (11 pp.) Since neither party moving for reconsideration has presented controlling law or facts that compel a change in the court’s prior ruling, or newly-discovered evidence that could not have been obtained earlier, the court denies the motions for reconsideration. [For prior order, see DDS No. 32-7-6828 in the Alert dated Oct. 24, 1995.]

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