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Vol. 4, No. 202 — OCTOBER 21, 1996 STATE COURT CASES CIVIL PROCEDURE — RESTORATION OF COMPLAINT 07-2-0301 Roland J. Raggio v. Dennis L. Rosengrant, App. Div. (4 pp.) The motion judge abused his discretion in denying plaintiff s motion to restore his automobile negligence complaint, dismissed with prejudice for failure to answer interrogatories, where plaintiff s former (now disbarred) attorney had not notified plaintiff of the dismissal of the action, and where plaintiff s certification documented his own repeated attempts to ascertain information about the status of the case. CONSTITUTIONAL LAW — ORGANIZED CRIME INVESTIGATIONS — PRIVACY 10-2-0302 Arthur R. Pelullo v. State, Commission of Investigation, et al., App. Div. (20 pp.) Nature of the information disclosed about plaintiff in defendant s investigative report on organized crime, when balanced against the strong state interest in disclosure to inform the government and public as to organized criminal activity, entitles plaintiff only to reasonable protection against false and reckless information by means of procedural safeguards, without duly impeding dissemination, and, since plaintiff was afforded such reasonable safeguards, he was not denied due process and summary judgment was properly granted to defendants. [Approved for publication Oct. 21, 1996.] EVIDENCE 19-2-0303 Commercial Investigation and Adjustment Co., Inc. v. Richard Ulbrich, App. Div. (12 pp.) In a case where plaintiff sues two former employees for allegedly removing certain proprietary information when the employees left to form their own company, (1) the court dismisses plaintiff s challenge to order authorizing an attorney to testify as to communications between the attorney and the employees — his joint clients — since the plaintiff was not the client and has no standing to object, (2) court reverses order which authorized, to a limited degree, the use of documents covered by an expungement order and (3) affirms dismissal of defamation counts. ENVIRONMENT 17-2-0304 N.J. Dept. of Environmental Protection v. Alden Leeds, Inc., App. Div. (13 pp.) (1) Since the record is barren of any evidence that the manner in which appellant stored its chemicals was the cause of the fire, the DEP failed to establish a causal nexus between the appellant and the contaminants released into the air as a result of the fire, and the Commissioner mistakenly concluded that appellant caused the release. (2) Since the appellant did not cause the fire, the appellant was not responsible for reporting same, and was wrongly found guilty of failing to immediately report the fire. FAMILY LAW 20-2-0305 Nilinda Cavalieri v. John J. Cavalieri, App. Div. (10 pp.) Post-judgment order modifying terms of parties divorce judgment is remanded because the trial judge was forced to base his decision on estimates of income and expenses in a situation that was very much in transition, and the uncertainty of the figures presented warrants a confirmatory review by the trial judge. NEGLIGENCE — JURISDICTION — LOADING/SHIPPING 31-2-0306 Angel Fernandez, et al. v. S/S Atlantic Song, et al., App. Div. (8 pp.) In a case where truck driver was injured when his rig overturned as he was hauling a piece of heavy machinery in a sealed container, summary judgment was properly granted, inter alia, (1) to Belgian company responsible for securing and lashing the machinery within the container, since company could not have reasonably contemplated suit in every jurisdiction through which its secured containers might pass in transit, nor any reason specifically to contemplate a N.J. locus, and (2) to N.Y. rigging and millwright company set to place the machine at its final destination, since it was merely the consignee to whom the container was being shipped so that the machine could be installed. NEGLIGENCE — RES IPSA LOQUITOR 31-2-0307 Edward Schapley v. Jersey Central Power and Light, App. Div. (9 pp.) Fall of defendant s electrical cable into the street, causing a fire which damaged plaintiff s jeep, are occurrences which ordinarily would not occur without negligence, and since the instrumentality was within defendant s exclusive control, and the plaintiff was in no way responsible, the doctrine of res ipsa loquitor was properly applied to this case and judgment for plaintiff is affirmed. CRIMINAL LAW AND PROCEDURE — ASSAULT WEAPONS 14-2-0308 State v. Joseph Pelleteri, App. Div. (6 pp.) The fact that defendant did not know that the weapon he possessed was an assault weapon is not a defense where the statute is clear and unambiguous, and the judge properly rejected the defendant s claims of mistake of law and fact, and properly instructed the jury that it could convict if they found defendant knowingly possessed the weapon, even if he did not know it had a fixed capacity exceeding fifteen rounds. [Approved for publication Oct. 21, 1996.] CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-0309 State v. Marcus Hill, et al., App. Div. (9 pp.) In suppressing drug evidence seized by police during a search incident to a warrantless arrest on an enclosed porch from which defendants were selling cocaine, the judge incorrectly focused on the fact that the police officer observing the defendants could not see the nature of the small objects being exchanged, and the judge did not analyze the officer s experiences in observing drug transactions, which gave the officer the requisite probable cause to arrest under the totality of the circumstances in this situation. FEDERAL COURT CASES ATTORNEYS — FEES — CLASS ACTIONS 04-7-0310 Cecil McLendon, et al. v. The Continental Group, Inc., et al., U.S. Dist. Ct. (18 pp.) (1) Law firm is not entitled to be compensated by class for the defense of a malpractice claim brought by a third party on account of firm s efforts successfully resisting the attempts of potential intervenors in the class action, even though this success advanced the interests of the class. (2) Special Master attempted to provide a fair method of expenditure reimbursement for another law firm, despite firm s failure to furnish adequate records to support those claims, and master s review methodology was appropriate and will be accepted. (3) Although special master may have unrealistically observed that the attorneys who agreed to withhold payments of fees awarded to them could have borrowed money on the basis of the settlement agreement and invested in the stock market had they so wished, the master s other reasons for recommending payment of enhanced fees based on interest rates rather than on advances in the stock indexes are sound and affirmed. [Filed Oct. 11, 1996.] FAMILY LAW — CLASS ACTIONS — SETTLEMENTS — SPOUSE S RIGHTS 20-7-0311 Cecil McLendon, et al. v. The Continental Group, Inc., et al., U.S. Dist. Ct. (18 pp.) Decision of Special Master recommending that part of class member s pre-tax settlement award be paid to his former wife is sound and in keeping with terms of both the class settlement and the orders entered in the member s matrimonial action in Georgia. [Filed Oct. 11, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The Office of Attorney Ethics recommends a three-year suspension for a lawyer who broke into doctors’ homes to fund her addiction to pain killers. See page 1 of the Oct. 21 Law Journal.

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