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Vol. 4, No. 201 — October 18, 1996 STATE COURT CASES CIVIL PROCEDURE — FAILURE TO ISSUE SUMMONS 07-2-0292 Patricia Mignone, et al. v. Elisa Michel, App. Div. (4 pp.) The trial court abused its discretion in dismissing plaintiffs complaint for failure to issue a summons within ten days as required by R. 4:4-1, since defendant s motion to dismiss was untimely, and since there would be no prejudice to defendant if the complaint were reinstated. CORPORATIONS — ARBITRATION 12-2-0293 Gerard Hennis v. Peter Amico, App. Div. (10 pp.) Procedural irregularities in corporate dispute were harmless did not deprive defendant of his right to challenge arbitration award or fully respond to plaintiff s motion seeking confirmation of the award, and, since both parties agreed to submit their dispute to private-sector arbitration, and neither party reserved a right to return to court to relitigate as part of the arbitration agreement, the parties actions evidence their intent to be bound by the result, and court correctly affirmed the award. DEBTOR/CREDITOR — FORECLOSURES 15-2-0294 John J. Solano, et al. v. United Jersey Bank/South, N.A., App. Div. (9 pp.) Judge correctly vacated default judgment against debtors in suit on note, since bank was obligated to first foreclose on residence, not pursue both suits simultaneously, however bank should not be estopped from proceeding with a deficiency suit now that the foreclosure has been completed, so the ruling that the suit on the note was void ab initio is reversed, as is that part of judgment awarding expert witness fees to plaintiffs. LAND USE 26-2-0295 The Southland Corp. v. Hackensack Planning Bd., et al., App. Div. (6 pp.) In view of the fact that site plan complied with county traffic requirements, and where none of the experts had offered evidence that traffic generated at the property for the proposed convenience store would significantly alter traffic flow as compared to the preexisting service station, the planning board s denial of site plan approval and variances for the convenience store was arbitrary and would essentially zone the property into inutility, and the court correctly reversed planning board s denial. PHYSICIAN/PATIENT — INMATES — LIMITATIONS — ENTIRE CONTROVERSY 29-2-0296 Nicholas H. Kontakis v. Joseph Pahlow, M.D., App. Div. (4 pp.) Since inmate failed to file his medical malpractice action against prison doctor within the requisite two-year statute of limitations, and also since the claim was barred under the entire controversy doctrine due to the dismissal of inmate s federal case arising from the same course of medical treatment, his case was properly dismissed. TAXATION — SALES AND USE TAXES — BOATS 35-2-0297 Paul Hepler v. Director, Div. of Taxation, App. Div. (2 pp.) Tax Court judge correctly found that plaintiff s vessel was primarily used as a charter boat and not as a party boat, or head boat, and was therefore not exempt from use tax. TORTS — MALICIOUS PROSECUTION — DEFAMATION 36-2-0298 Robert H. Hershey, et al. v. Edward Starace, et al., App. Div. (9 pp.) Since there was probable cause to for defendants to have filed assault complaint against plaintiff, even though plaintiff was ultimately acquitted, malicious prosecution claim was properly dismissed, and defamation claim was also properly dismissed because any statements made during the municipal court proceeding were privileged. FEDERAL COURT CASES LABOR AND EMPLOYMENT — AGE AND DISABILITY DISCRIMINATION mistakenly listed as 25-7-1299 in the e-mail. 25-7-0299 Frank DeJoy v. Comcast Cable Communications, Inc., U.S. Dist. Ct. (25 pp.) In wrongful termination case filed by former vice president and general manager of defendant cable company — who was terminated while out on disability for a ruptured aortic abdominal aneurysm — (1) since the ADA, ADEA and Title VII contain definitions of employer that mirror one another, counts alleging individual liability against president and regional vice president are dismissed as improper, (2) count alleging that constructive termination violated public policy is dismissed since common law claims are preempted by the NJLAD, and (3) claims against president and regional vice president for tortious interference with prospective economic advantage are viable because officers are alleged to have acted outside the scope of their employment and for personal gain. [Filed Oct. 8, 1996.] SECURITIES 50-7-0300 Washington Group, Ltd., etc. v. Kidder Peabody & Co., Inc., etc., et al. v. Roger Klein, etc., et al. U.S. Dist. Ct. (19 pp.) In case alleging that plaintiff was compelled to liquidate its investments on a forced sale basis due to the speculative nature of the derivatives and a series of margin calls made by defendant, where defendant in turn alleges that third-party defendant — its financial consultant and investment adviser — failed to recommend suitable investments and disclose concomitant risks, court finds that (1) it has supplemental jurisdiction over the third-party complaint because the allegations thereof properly state a cognizable contribution claim under N.J. law by alleging secondary, rather than sole, liability on behalf of adviser that contributed to a single injury to the plaintiff, (2) since third- party complaint fails to allege any of the requisite elements of a negligent misrepresentation/fraud claim, this claim is dismissed, without prejudice, (3) dismissal is appropriate of defendant s claim that adviser approved investments that did not comport with NASD standards, or failed to disclose such noncompliance, since defendant has not alleged that adviser is an NASD member and therefore had no duty to comply, and (4) negligence and breach of fiduciary duty claims are cognizable and survive dismissal motion. [Filed Oct. 7, 1996.] Correction: In Wednesday s Alert (October 16, 1996), in the squib under Corporations for DDS No. 12-2-0268, William White, et al. v. Pasquale Tominaro, et al., the word no was omitted from the fourth line from the bottom of the squib. That line should read there was NO showing that the agreement was other than voluntarily entered into… We regret any confusion. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The indictment of two Essex County narcotics officers on an assault charge is raising legal questions for prosecutors who intend to use the two as witnesses in about 100 cases. See page 1 of the Oct. 21 Law Journal.

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