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Vol. 4, No. 204 — October 23, 1996 STATE COURT CASES CONSTITUTIONAL LAW — INVOLUNTARY COMMITMENT 10-2-0334 In the Matter of the Commitments of J.B. and J.H., App. Div. (5 pp.) Apart from the fatal deficiency created by the committing doctor’s reliance on inadmissible hearsay evidence, the court reverses judgments of commitment because at neither hearing did the evidence which was presented support the critically required finding of a substantial likelihood of dangerous behavior. CORPORATIONS 12-1-0335 Strasenburgh, et al. v. Straubmuller, et al.; Wheaton, Inc. v. Smith, et al., Supreme Ct. (43 pp.) A corporation may rescind its corporate action after appraisal rights have vested only within a reasonable time after the effective date of the corporate action. Amendments to the Business Corporation Act that deny appraisal rights in transfers to wholly-owned subsidiaries may be applied retroactively only upon a careful factual analysis that establishes both that it was the Legislature’s intent to apply the statute retroactively and that retroactive application of the statute will not result in either an unconstitutional interference with vested rights or a manifest injustice to the party adversely affected by such application. Election of the appraisal remedy is exclusive only if that remedy will provide the aggrieved parties with a sufficient recovery of the value of their shares. The essential nature of the injuries claimed by the dissenting shareholders consists of a diminution in share value, which was an injury suffered by all shareholders and is, therefore, derivative. FAMILY LAW 20-2-0336 Guy F. Gallo v. Kim E. Gallo, App. Div. (11 pp.) The trial court, inter alia, correctly permitted wife to move to Ohio with children, finding that her intention was to live closer to her relatives and make a fresh start in life, and that there was no basis in the record to conclude that either child would suffer from the move. Husband’s claim that visitation schedule is unfair is without merit, since it substantially mirrors his requests, but since husband objected to the Ohio move consistently, he should not be made to bear the entire expense of visitation, and same is ordered to be equally shared by the parties during rehabilitative alimony period, with a full reevaluation thereafter. 20-2-0337 Cathleen A. Guarino v. Martin F. Guarino, App. Div. (2 pp.) In view of husband’s failure to show good cause for his adjournment request, and the bad faith which he exhibited during the course of the litigation prior to the trial date, the court did not abuse its discretion in denying the adjournment request, and when husband simply failed to appear at trial, allegedly because he had to be out of town on business, court did not err in basing its award of custody, support and equitable distribution solely on testimony from the wife. FAMILY LAW — JOINT CUSTODY 20-2-0338 Allan Reading v. Patricia Willard, App. Div. (13 pp.) Since the documentary submissions filed by the parties in support of their motions regarding joint custody presented wildly conflicting assertions vitally affecting the child’s best interests, and since the parties’ credibility was clearly in issue, the judge’s decision to restore joint custody should not have been made in the absence of a full evidentiary hearing. INSURANCE — DUTY TO DEFEND 23-2-0339 Edward F. Hare v. A.E. Stone, Inc. v. N.J. Mfrs. Ins. Cos., et al., App. Div. (3 pp.) Since the employee’s workplace injury negligence complaint facially asserted no basis for employer liability, certain policy exclusions apply and summary judgment was properly entered in favor of insurer on employer’s action seeking a defense of the suit under its Employer Liability policy. INSURANCE — VERBAL THRESHOLD 23-2-0340 Gonzalo Gonzalez, et al. v. Raymond Wharrie, et al., App. Div. (2 pp.) Although there was a statement in doctor’s report that the plaintiff’s injuries prevented him from performing all his normal work activities for more than 90 days, plaintiff, by his own admission, did not lose more than two months from work, and therefore failed to meet the standard for a type 9 injury. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0341 Thomas M. Reed v. Bd. of Review, et al., App. Div. (2 pp.) Board of Review correctly found that claimant was an officer and shareholder of employer at the time that he filed his claim for and received unemployment benefits and that the company was not defunct as reported by claimant, therefore claimant was properly disqualified from receipt of benefits. TORTS — MALICIOUS PROSECUTION 36-2-0342 Thomas Klesh, et al. v. Virginia Coddington, et al.; Armando Monte Consalvo, etc., et al. v. Virginia Coddington, et al., App. Div. (17 pp. — includes 5 pg. appellate opinion and 12 page Law Division opinion) A disorderly persons complaint — based as it is on a quasi-criminal offense — does not constitute the initiation of a criminal action so as to spare the malicious prosecution plaintiff the necessity of showing a special grievance beyond those inherent in the criminal process itself. [Approved for publication Oct. 23, 1996.] WORKERS’ COMPENSATION 39-2-0343 Luis M. Suarez v. Gold Parc Condominiums, App. Div. (5 pp.) Award to petitioner based upon five percent partial-permanent disability of the right foot from chronic synovitis is reversed, since the judge’s findings and conclusions are wanting in their omission to articulate the “functional disability” that resulted from the injury and the “demonstrable objective medical evidence” that established the existence of that functional disability, nor did the judge indicate whether he found that there was or was not a lessening to a material degree of the employee’s working ability, and, exercising original jurisdiction, the court finds the evidence lacking and dismisses petition. CRIMINAL LAW AND PROCEDURE — INFORMANT RELIABILITY — PROBABLE CAUSE 14-2-0344 State v. Joseph R. Zutic, App. Div. (16 pp.) A telephone tip from an untested informant consisting entirely of innocuous details concerning defendant’s alleged criminal activities did not exhibit sufficient indicia of reliability to establish probable cause to search defendant and his motor vehicle under the Fourth Amendment, even though the details were corroborated by independent police work, and evidence should have been suppressed. [Approved for publication Oct. 23, 1996.] FEDERAL COURT CASES LABOR AND EMPLOYMENT — HANDICAP AND AGE DISCRIMINATION 25-8-0345 Albert L. Lawrence v. National Westminster Bank of N.J., Third Cir. (33 pp.) In suit alleging age and handicap discrimination and denial of severance benefits, (1) district court erroneously granted summary judgment to bank/employer on age discrimination claim, since plaintiff cast sufficient doubt on bank’s proffered reasons for his termination to create a material issue of fact; (2) district court erred when it required plaintiff to proffer evidence of a causal relationship between his disability and his termination to establish his prima facie handicap discrimination claim, and since there was enough evidence to cast sufficient doubt on employer’s claim that plaintiff was fired for “cause” rather than on account of his physical condition, summary judgment in favor of employer is reversed; (3) summary judgment was properly granted to employer on failure to accommodate claim, and (4) denial of severance benefits must be reversed until it is determined upon remand whether or not plaintiff was fired for “cause,” in which case he would not be entitled to those benefits, but (5) the district court correctly held that the denial of such benefits was not in retaliation for plaintiff’s failure to sign severance agreement and release. [Filed Oct. 15, 1996.] TORTS — DEFAMATION — LIMITATIONS 36-7-0346 Eugene H. Steele v. Maite Vazquez, U.S. Dist. Ct. (9 pp.) The court affirms the decision of the magistrate judge denying plaintiff the right to amend his defamation complaint to add defendant’s employer and supervisor during the time she made allegedly defamatory statements — on the theory of respondeat superior — and to add other airline employees who allegedly encouraged and repeated the alleged defamation, since N.J. provides for a one-year statute of limitations for defamation actions, which has long passed, and since the plaintiff did not name fictitious defendants or provide any notice to those prospective defendants of the claims against them, and, accordingly, plaintiff is not entitled to invoke the “relation back” doctrine to surmount the limitations problem. [Filed Oct. 15, 1996.] CRIMINAL LAW AND PROCEDURE — SENTENCING — CAREER OFFENDERS 14-8-0347 U.S.A. v. Robert McQuilkin, Third Cir. (27 pp.) (1) The district court correctly found defendant to be a “career offender” based upon his past convictions, and although this court expresses misgivings about including “purely reckless” offenses within the “crime of violence” category to determine such status, since there has been no change in the sentencing laws, such offenses count as predicate offenses, and defendant’s sentence is affirmed. (2) District court correctly held that defendant was not entitled to a downward departure due to his physical condition — arm injuries and a congenital eye defect — because these injuries did not constitute so severe a medical impairment to justify the downward departure. [Filed Oct. 15, 1996.] A Daily Reporter of New Jersey Court Decisions

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