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Vol. 4, No. 203 — October 22, 1996 STATE COURT CASES CIVIL PROCEDURE — VACATING DISMISSAL 07-2-0312 Mehdi Ghamkar, et al. v. Rachna Puri, App. Div. (3 pp.) Judge acted within his discretion and properly denied plaintiff’s 1995 motion to vacate 1993 dismissal of negligence claim, and, due to counsel’s egregious inattention to the case and attempted manipulation of the court rules, plaintiff’s remedy, if any, is no longer to be found against the defendant in this case. CORRECTIONS 13-2-0313 Thomas Davis v. Cy. of Ocean, et al., App. Div. (3 pp.) Where inmate was injured when his cellmate fell on him as he lay sleeping on his mattress on the floor, and sued county and prison officials — alleging that placement of mattresses on the floor created a dangerous condition under N.J.S.A. 59:4-2 — court properly granted summary judgment to defendants on the ground that the immunity conferred under N.J.S.A. 59:5-2b(4) trumps any liability enunciated in 59:4-2. FAMILY LAW — COUNSEL FEES 20-2-0314 Colleen Laudisi v. Gary Laudisi, App. Div. (2 pp.) Trial court’s award to plaintiff of $5,000 (on a demand for over $37,000) was not inadequate nor an abuse of discretion where, although plaintiff demonstrated need, the defendant’s ability to pay was limited, and the plaintiff’s lack of good faith in forcing the matter to trial was also considered by judge. 20-2-0315 Roger J. Lokker v. Mariella Lokker, App. Div. (3 pp.) Given short duration of marriage, modest assets accumulated therein, and the immense attorneys’ fees incurred by both parties in relation to their assets and incomes, judge’s award of modest counsel fees to defendant, against plaintiff who earned twice as much money, is affirmed. INSURANCE — COMPREHENSIVE GENERAL LIABILITY — LANDLORD/TENANT 23-2-0316 Juan Reyes v. Meadow Park Associates, et al. v. Pizzeria Uno of N.J., Inc., et al., App. Div. (6 pp.) Shopping center landlord was correctly granted summary judgment in its coverage action seeking coverage as an additional insured under a comprehensive general public liability insurance policy issued by insurer to tenant pizzeria, in case where pizzeria’s employee was injured when he fell on pavement defects in the shopping center parking lot behind the pizzeria. INSURANCE — PHYSICAL DAMAGE COVERAGE — INSPECTIONS 23-2-0317 Nicole Stani v. Warner Ins. Co., et al., App. Div. (3 pp.) The court properly dismissed plaintiff’s complaint — seeking coverage for physical damage to her automobile — since she signed an acknowledgment that physical inspection of vehicle was required within a certain time frame before coverage would be in place, and failed to obtain the inspection within the deadline without requesting an extension or advising insurer of her inability to obtain same. INSURANCE — SUBROGATION — ENTIRE CONTROVERSY 23-2-0318 Ohio Casualty A/S/O DiGiacinto v. Meadowlands Toyota, App. Div. (8 pp.) Where pro se litigant filed suit to recover his deductible and other minor costs of damage his car sustained while on the premises of defendant for repairs, and his insurer had no knowledge of that suit, and later filed a subrogation action for the monies it had advanced for the auto damage, the judge correctly applied equitable principles to preclude application of the entire controversy doctrine to bar the suit, and liability judgment is affirmed, however a new trial on damages is required. JURISDICTION — FORUM NON CONVENIENS 24-2-0319 John England, et al. v. Allstate Ins. Co., App. Div. (2 pp.) Under the doctrine of forum non conveniens, trial court correctly dismissed insurance claim seeking reimbursement for losses allegedly resulting from theft and vandalism to plaintiffs’ home in California, since all witnesses and documentation are in California and although plaintiff is disabled and resides in N.J., his deposition can be taken on videotape. LABOR AND EMPLOYMENT — PLACEMENT FEES 25-2-0320 David Glaser, etc. v. Johnson & Johnson, App. Div. (3 pp.) Motion judge properly concluded that plaintiff was not entitled to employment placement fees under the Private Employment Agency Act, N.J.S.A. 34:8-43 to 66 because he was not the producing cause of the employment (although there had been a prior relationship between the parties) and because he was not licensed or registered as required by the Act. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0321 Colleen Ruskowski v. Bd. of Review, et al., App. Div. (4 pp.) Weighing the testimony, the Board of Review could reasonably have found that employee quit her job when her brother in law was terminated, as opposed to accepting the employee’s position that she thought she was fired along with the brother in law, and employee’s disqualification from benefits is affirmed. 25-2-0322 Ronald Weston v. Bd. of Review, App. Div. (3 pp.) Plaintiff was properly disqualified for unemployment benefits because he owned more than five percent of the stock of his corporate employer, and plaintiff’s contention that the unemployment compensation law is unconstitutional as applied to small family-controlled corporations is without merit. NEGLIGENCE — EXCULPATORY AGREEMENTS 31-2-0323 Frank Scalella v. Diocese of Camden, et al., App. Div. (5 pp.) Where plaintiff sued defendants for injuries from a fall he sustained while playing basketball at defendant’s recreational center, judge correctly rejected plaintiff’s contention that the cause of his injury was not “inherent in the sport” and thus outside the scope of exculpatory clause in release plaintiff had signed, and properly granted summary judgment to defendants based upon the valid broadly-worded release. Plaintiff’s contention that his status as a business invitee imposed an inalterable duty of care on defendants as a matter of public policy was properly rejected. PRODUCT LIABILITY — ENTIRE CONTROVERSY DOCTRINE 32-2-0324 Joel Erenberg, etc., et al. v. Carlos Cordero, et al.; Leslie A. Napoli v. Carlos Cordero, et al., App. Div. (20 pp.) Auto manufacturer, not having been joined in a N.Y. negligence action brought by decedent’s mother as administratrix, may be sued in N.J. for alleged seat belt defects by the decedent’s father, who was not a party to the N.Y. action, by the decedent’s estate, which was a party plaintiff, and by decedent’s stepmother, who was a nominal party, and the suit is not barred by the entire controversy doctrine. [Approved for publication Oct. 22, 1996.] PUBLIC EMPLOYEES — POLICE 33-2-0325 David Hendricks v. City of Lambertville, App. Div. (4 pp.) Police officer was properly dismissed from the force for misconduct under N.J.S.A. 40A:14-147, and officer failed to establish the requisite factual elements of laches and estoppel to support his contention that sequential charges were void under those principles. REAL ESTATE — BROKERS 34-2-0326 Michael Cervelli, etc. v. Catherine Regan, et al., App. Div. (9 pp.) Where judge ordered property sold in a partition action, and appointed plaintiff real estate broker to list the property and facilitate the sale, the plaintiff was due a commission when the defendants — parties to the partition action — after signing a listing agreement, settled the action with one of the defendants buying out the other. TAXATION — FREEZE ACT 35-2-0327 AVR Realty Co., etc. v. Cranford Twp., App. Div. (9 pp.) Although the final judgment applying Freeze Act to 1994 assessment was entered after the assessing date for the freeze year, and the Tax Court erred in its holding that municipality’s failure to file a complaint challenging the application of the Freeze Act to 1994 was fatal to its right to defend against the taxpayer’s motion for application of the Act, its judgment granting taxpayer’s motion for application of the Act is nevertheless affirmed because the court is satisfied that the municipality’s opposition thereto did not meet the standard for a prima facie demonstration of a change in value warranting exception to the Freeze Act mandate. [Approved for publication Oct. 22, 1996.] WILLS, ESTATES AND TRUSTS 38-2-0328 In re Estate of Joseph Wisniewski, Sr., App. Div. (8 pp.) Judge correctly denied plaintiff’s application for a new trial challenging the administration of the estate of her father for lack of new evidence, however her application to set aside a settlement agreement between her and the estate based on coercion due to her physical condition has some merit and is remanded. WORKERS’ COMPENSATION 39-2-0329 Jose P. Villa v. Vollers Excavating & Construction, App. Div. (8 pp.) Although the compensation judge summarized the opinions of the experts in the medical reports, he did not clearly delineate what in those reports constituted “demonstrable objective medical evidence of petitioner’s alleged disability” and remand is required since the deficiencies prevent the appellate court from determining whether the petitioner has sustained his burden of proof showing that he had sustained a partial-permanent disability. CRIMINAL LAW AND PROCEDURE — DUE PROCESS ENTRAPMENT 14-2-0330 State v. Esteban R. Valencia, Jr., App. Div. (5 pp.) The trial court, at the time it denied defendant’s motion to dismiss the indictment based upon a violation of due process rights, did not address the burden of proof, but concluded that “the reverse sting operation was not egregious;” the matter is remanded so that the trial court may consider defendant’s due process entrapment arguments under the guidance of State v. Florez and State v. Johnson, which clarified the burden of proof and standard to be used to determine due process entrapment. CRIMINAL LAW AND PROCEDURE — VICIOUS DOGS 14-3-0331 State v. Evelyn Smith, App. Div. (12 pp.) The City of Hoboken failed to comply with the procedural requirements of the Vicious and Potentially Dangerous Dog Act, N.J.S.A. 4:19-17 through 36 — which preempts any municipal ordinance purporting to cover the same subject — and therefore the municipal court lacked jurisdiction to entertain the action and pass judgment on defendant and her dog. The court further finds that settlement agreement between parties was voluntary and is a legally binding agreement, and orders its specific enforcement. [Approved for publication Oct. 18, 1996.] FEDERAL COURT CASES IMMIGRATION 51-8-0332 Mircea Marincas v. Warren Lewis, etc.,et al., Third Cir. (4 pp. — includes dissent) Petition for rehearing is denied, although dissent finds this case particularly significant in that it calls into question the entire asylum procedure currently used by the INS Office of Refugees, Asylum and Parole and notes that the Refugee Act’s requirement that a procedure be established for an alien to apply for asylum is simply not a requirement that a uniform procedure be established for all aliens to apply for asylum regardless of their differing circumstances. [Filed Oct. 16, 1996.][For initial decision, see DDS No. 51-8-9994.] NEGLIGENCE — SETTLEMENTS FOR MINORS — TORT CLAIMS ACT 31-8-0333 Sharon A. Reo v. U.S. Postal Service, et al. v. Joseph J. Reo, Jr., et al. v. State Farm Ins. Co., Third Cir. (11 pp.) Minor’s parents’ acceptance of an administrative settlement of the minor’s claim under the Federal Tort Claims Act does not release the federal government from further liability where the settlement was not judicially approved as required by state law. [Filed Oct. 15, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Prudential Insurance Co., state insurance regulators and class-action lawyers make progress toward a global settlement over charges that the insurer defrauded millions of buyers of life insurance.See page 5 of the Oct. 21Law Journal.

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