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Vol. 4, No. 205 — October 24, 1996 THIS WEEK IN THE … Parker, McCay & Criscuolo’s part-time arrangement with two of its associates can guide other firms thinking of implementing their own programs. See page 29 of the Oct. 21Law Journal. STATE COURT CASES CONTRACTS — HORSES 11-2-0348 William H. Ludlow v. Carol Person, App. Div. (8 pp.) Though the parties disagreed as to what their arrangement was when defendant gave her horse to plaintiff, neither contended that the arrangement included a provision for defendant to pay plaintiff board, and the judge erred in unilaterally modifying the “lease type” arrangement to require such payment (when defendant repossessed horse), even on a quantum meruit basis, since plaintiff appeared to have benefitted from having possession of the horse. Judge did not err in dismissing defendant’s counterclaim for the costs of removing her own horse from plaintiff’s premises. DEBTOR/CREDITOR — RECEIVERS — INSOLVENCY 15-2-0349 Bill Wahl Supply, Inc. v. American Exterior Decorators, Inc., et al., App. Div. (7 pp.) Order of Chancery Division appointing a statutory receiver for defendant corporation on the application of one sole creditor — plaintiff — is reversed because the judge failed to resolve disputed material facts concerning the solvency status of the corporation, and bond could have been posted pending a presentation of proofs. INSURANCE — P.I.P. 23-2-0350 Rutgers Casualty Ins. Co. v. N.J. Mfrs. Ins. Co., App. Div. (3 pp.) The purpose of N.J.S.A. 39:6A-4.2 is to identify a source for the immediate payment of PIP benefits, thereby insulating covered persons from squabbles between insurers, and notwithstanding that section 4.2 expressly provides that the PIP coverage of the named insured shall be the primary coverage for the named insured, that carrier may nevertheless seek contribution under section 11 even though the PIP payments did not exceed the policy limits. [Approved for publication Oct. 24, 1996.] LABOR AND EMPLOYMENT — POLICE 25-2-0351 Steven Zenes, et al. v. Twp. of Mt. Olive, et al., App. Div. (3 pp.) In a failure to promote case, judge properly concluded that police officers’ concerns regarding promotional criteria fell within the terms and conditions of employment which had been subject to negotiation, and that their sole remedy was through the grievance procedure of the collective bargaining agreement rather than litigation. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0352 Michael Benning v. Bd. of Review, App. Div. (3 pp.) Both the Appeal Tribunal and the Board of Review properly disqualified appellant from benefits, because his employment at his second job was served entirely in another state, and could not be considered in calculating his base weeks and earnings. 25-2-0353 Patricia Ann Pacitti v. Bd. of Review, App. Div. (2 pp.) Appellant was properly disqualified for benefits since her reasons for leaving her job — including day care problems, erratic scheduling and a long commute — were personal and not attributable to her work, and her claims that second-hand smoke and her working conditions adversely affected her health were not supported by adequate medical evidence. 25-2-0354 Angela P. Alston v. Bd. of Review, App. Div. (4 pp.) Where employee was denied unemployment benefits because of gross misconduct (embezzlement), and refused to testify before Appeal Tribunal because anything she said could have been used against her in related criminal prosecution, her Fifth Amendment right against self-incrimination was not violated when Tribunal then dismissed appeal for lack of evidence contradicting the Deputy Director’s findings; appellant was not compelled to testify, however she had the burden of proof and simply failed to meet it. LABOR AND EMPLOYMENT — WRONGFUL DISCHARGE 25-2-0355 Ellen Z. Melick, et al. v. Twp. of Oxford, et al., App. Div. (15 pp.) Defendants were properly granted summary judgment in wrongful discharge action filed by former municipal court clerk and deputy court clerk, since the evidence clearly demonstrated that defendants’ reason for terminating the employees — having to do with the relocation of the court with limited space for staff, and the hiring of the clerk already in place in the neighboring municipality — was not pretextual. [Approved for publication Oct. 24, 1996.] PHYSICIAN/PATIENT — INVOLUNTARY COMMITMENTS 29-2-0356 Shawn R. Hines v. Beth Israel Medical Center-Newark, et al., App. Div. (10 pp.) In case where plaintiff alleges he was wrongly commited, judge properly granted summary judgment dismissing case (1) as to medical personnel since plaintiff failed to produce an expert report which not only established the standard of care but also explained how each defendant had violated that standard, (2) as to plaintiff’s claims flowing from a wrongful confinement, which must also fail for the same reason, (3) as to the tort claims against municipality for failure to file a notice of claim under the Tort Claims Act, (4) as to civil rights claims against municipality because plaintiff failed to present any evidence of pattern, custom or policy which led to a precipitous and unjustified abridgment of his personal liberty, and (5) as to hospital because plaintiff failed to show that hospital had a policy, practice or custom to participate in wrongful commitment. PUBLIC EMPLOYEES — FIREFIGHTERS — DRUG ABUSE 33-2-0357 Kevin Hayes v. Fire Dept., City of Plainfield, App. Div. (7 pp.) Firefighter, who had successfully completed drug rehabilitation program but whose urinalysis then tested positive for cocaine, was properly terminated, and, inter alia, the fact that there was no proof that he was addicted was immaterial, as the rules and regulations prohibited use of illegal drugs. REAL ESTATE — CONDOMINIUMS — EQUITABLE FRAUD 34-2-0358 Maria Sergi v. Stephen Whalen, et al., App. Div. (13 pp.) Judge correctly dismissed plaintiff’s suit seeking to rescind — on the basis of alleged misrepresentations and violations of the Planned Real Estate Development Full Disclosure Act — her purchase of condominium in converted motel, placing great weight on the fact that plaintiff never read the Public Offering Statement, the Master Deed and the Bylaws, and therefore could not have had the requisite reliance on the alleged untruths contained therein. REAL ESTATE — CONDOMINIUMS — OIL TANKS — RESPONSIBILITY FOR CLEANUP 34-2-0359 Ellenheath Condominium Assn., Inc. v. Nayda Kovak Pearlman, et al., App. Div. (6 pp.) In dispute between unit owner and condominium association over responsibility for environmental clean-up costs for leaking oil tank on condominium property, since each condominium unit has its own underground oil storage tank, constituting an essential and permanent part of the heating facility of the unit, the tank is an improvement which is clearly not included in the definition of “common elements” and the court finds that the tank forms a part of the unit and is the responsibility of the unit owner. [Approved for publication Oct. 24, 1996.] TORTS — MALICIOUS PROSECUTION 36-2-0360 Jian-Ping Zhang v. Thanh Ly, App. Div. (7 pp.) Where parties settled defendant’s municipal court stalking complaint against plaintiff with prosecutor downgrading the offense and allowing the entry of a “no contact” order in exchange for the dismissal of the charges, this did not amount to a favorable termination for plaintiff such that he could prevail on malicious prosecution complaint, and dismissal of same is affirmed. CRIMINAL LAW AND PROCEDURE — RIGHT TO COUNSEL 14-2-0361 State v. William Todd Lewis, App. Div. (6 pp.) Under the circumstances of the antagonistic relationship defendant had with his attorney, and attorney’s representation that he did not understand exactly what grounds defendant wished to raise, proceedings should have been adjourned and defense counsel directed to complete preparation for hearing rather than continuing with defendant presenting his PCR petition pro se. FEDERAL COURT CASES CIVIL RIGHTS — CIVIL FORFEITURE — IMMUNITIES — ENTIRE CONTROVERSY 46-7-0362 Mark Schrama, et al. v. Borough of Franklin Police Dept., et al., U.S. Dist. Ct. (31 pp.) In a case where plaintiffs’ home and property were seized in a civil forfeiture action instituted in conjunction with a criminal case against them for theft, and plaintiffs allege various violations of their rights for damage to their property while in the custody of the defendants, (1) even though plaintiffs could have joined these claims in the civil forfeiture action, the entire controversy doctrine does not bar suit due to defendants’ waiver of same by not pleading it as an affirmative defense and by allowing this suit to proceed for four years without raising the issue, (2) prosecutors are absolutely immune from suit under Section 1983 for their preparation in support of the issuance of the seizure warrant, and filing and serving of the forfeiture complaint and prosecution thereof, and (3) while it is unfortunate that plaintiffs’ property suffered damage at the hands of vandals or was damaged as a result of the seizure, it cannot be said that defendants failed to act in a reasonable manner to safeguard the property, and the damage fails to rise to the level of a constitutional violation. [Filed Oct. 15, 1996.] DEBTOR/CREDITOR — CONTEMPT 15-7-0363 eMTe Corp., etc. v. Bonnie and Company Fashions, Inc., etc., et al., U.S. Dist. Ct. (10 pp.) In plaintiff’s effort to collect judgment filed against closely held corporation from the individual who had been the corporation’s president and majority stockholder, (1) despite the fact that the individual may ultimately be held liable for the past corporate debts of the corporation, she was not a party to the final judgment in this case, and cannot be held in contempt for failure to obey a subpoena for discovery, however, (2) the court orders the individual to obey the subpoenas and answer all interrogatories, or it will order her to show cause why she then should not be held in contempt. [Filed Oct. 16, 1996.] SECURITIES — CLASS ACTIONS — DISCOVERY OF ABSENT CLASS MEMBERS 50-7-0364 Patricia Gunter, et al. v. Ridgewood Energy Corp., et al., U.S. Dist. Ct. (10 pp.) In a class action lawsuit alleging material misrepresentations and omissions by defendants which led to plaintiffs’ losses in oil and gas limited partnerships, the court grants plaintiffs’ motion for a protective order precluding defendants from taking discovery of absent class members, since the interrogatories — dealing with individual issues of reliance — do not address common issues. [Filed Oct. 16, 1996.] TELECOMMUNICATIONS — JURISDICTION 57-7-0365 IPCO Safety Corp. v. Worldcom, Inc., etc., U.S. Dist. Ct. (16 pp.) In a case where plaintiff alleges various business losses as a result of defendant’s failure to properly provide long distance services, since the court would have to ascertain the applicability, validity, enforceability and reasonableness of the limitation of liability clause contained in defendant’s F.C.C. tariff — a task which falls squarely within the set of tasks over which the FCC has primary jurisdiction — defendant’s motion to dismiss is denied, but its motion to refer this part of the action to the FCC is granted. [Filed Oct. 18, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … FEDERAL COURT AGAIN SIGNALS TROUBLE WITH MEGAN’S LAW: As legislators continue to defend Megan’s Law, a federal appeals judge expresses reservations about the retrospective nature of the challenged law.

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