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Vol. 3 No. 238 Decisions Released Dec. 18, 1995 STATE COURT CASES INSURANCE 23-2-7367 Sentry Ins. Co. v. Janet Disdier, et al., App. Div. (8 pp.) Where insurer was never able to contact insured to ascertain whether driver of vehicle (who disappeared) had insured’s permission to drive vehicle involved in an accident and whether there was a meritorious defense, insurer suffered appreciable prejudice, and default judgment against insured and summary judgment in favor of insurer were properly entered. NEGLIGENCE 31-2-7368 Curtis Davis v. Twp. of Cranbury, et al., App. Div. (18 pp.) Judgment was proper against rehabilitation company, which negligently communicated to plaintiff’s workers’ compensation carrier that he was able to return to light duty work, resulting in his being terminated when he did not return to work, and any errors were harmless. 31-2-7369 Andrzej Pielacki, et al. v. Industrial Poly Mfg., Inc., et al., App. Div. (7 pp.) A new trial should have been granted to plaintiff after no cause verdict, because the jury’s answers to interrogatories were irreconcilably inconsistent and showed confusion and mistake. PUBLIC EMPLOYEES — ACCIDENTAL DISABILITY 33-1-7370 Dennis Mazza v. Bd. of Trustees, Police and Firemen’s Retirement System, Supreme Ct. (15 pp. — includes dissent) Since back injury suffered by park patrolman when his horse suddenly bucked and spun was not the result of a “traumatic event” constituting a “great rush of force or uncontrollable power” as required under the Police and Firemen’s Retirement System, the patrolman was properly denied accidental disability benefits. [Approved for Publication. Available online in NJ Full-Text Decisions] TAXATION 35-2-7371 Pine Street Management Corp., etc. v. City of East Orange, App. Div. (8 pp.) Judge did not abuse his discretion in denying landowner’s motion to vacate judgments entered as a result of the settlement of tax appeals by prior lessee of property, since owner was aware of the settlement and did not file a timely motion to intervene, and there was no evidence to establish that the settlements were not fair and equitable. 35-2-7372 Pine Street Management Corp., etc. v. City of East Orange, App. Div. (4 pp.) Attorney had no claim in his client’s tax refund when the city properly set off the refund against delinquent taxes, since there was no “client’s interest” on which the attorney’s lien could be affixed, and city’s right to offset delinquent taxes takes priority over the attorney’s lien. CRIMINAL LAW AND PROCEDURE 14-2-7373 State v. James Cherry, App. Div. (29 pp.) Defendant’s conviction for the murder of a police officer is affirmed, since, although the trial judge improperly concluded that an identification array was not suggestive, he nevertheless correctly recognized that the ultimate object of the inquiry was whether the identification was truly that of the witness, or whether it was the result imposed upon her by the process. [Approved for publication Dec. 18, 1995. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES CONTRACTS — FRANCHISES — DAMAGES — BONDS 11-7-7374 Cooper Distribution Co. Inc., etc. v. Amana Refrigeration Inc., etc., U.S. Dist. Ct. (15 pp.) Since it was not the case that wholesale appliance distributor failed to prove the existence of any damages on its breach of franchise claim against appliance manufacturer, but remand was required to determine the amount of the damages, the supersedeas bond posted by manufacturer must remain in effect until the damages trial is concluded; therefore distributor’s motion to enforce the bond, and manufacturer’s motion to discharge the bond, are both denied. ENVIRONMENT — CONSTRUCTION & DEMOLITION WASTE 17-7-7375 Atl. Coast Demolition & Recycling Inc., et al. v. Bd. of Chosen Freeholders of Atl. County, et al., U.S. Dist. Ct. (30 pp.) Since defendants have not established that a preliminary injunction would cause irreparable harm either to themselves or the public if an alternative regulatory scheme is implemented, the injunction will be granted to restrain enforcement of the current flow regulations of construction and demolition materials in accordance with the alternative regulatory plan submitted by the New Jersey Department of Environmental Protection on Aug. 8, 1995. LABOR AND EMPLOYMENT 25-7-7376 Michael J. Whittle, et al. v. Local 641, etc., et al., U.S. Dist. Ct. (29 pp.) Because there exists no genuine issue of material fact pertinent to teamsters’ claim against their union for breach of the duty of fair representation — for wrongful denial of seniority — the union is granted summary judgment, and, as a consequence, teamsters are barred from pursuing their breach of collective bargaining agreement claim against their employer, to which summary judgment is also granted. TORTS — SEXUAL ABUSE — LIMITATIONS — DISCOVERY RULE 36-7-7377 Perry Dattoli v. Thomas Yanelli, U.S. Dist. Ct. (12 pp.) Analyzing the effect of the discovery rule on the tolling of the statute of limitations as defined in New Jersey’s sexual abuse statute, N.J.S.A. 2A:61B-1, the court finds that equitable considerations and fundamental fairness dictate that the plaintiff be allowed the opportunity to convince the court that he discovered his cause of action for sexual abuse after it would otherwise have been foreclosed by such limitations statute, and the court finds that it is not necessary to empanel a jury solely for this hearing.

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