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Vol. 4, No. 199 — October 16, 1996 STATE COURT CASES CORPORATIONS 12-2-0268 William White, et al. v. Pasquale Tominaro, etc., et al., App. Div. (8 pp.) In corporate dispute, court had no legal or equitable warrant to compel minority plaintiffs (whose stock was in escrow pending completion of terms of settlement agreement between parties) to ratify defendant s S election, although court found such an election to be in the best interest of all litigants, since the settlement agreement between the parties did not call for same, and there was showing that the agreement was other than voluntarily entered into, fair and conscionable. Judge also erred in ordering plaintiffs to pay certain corporate taxes since, under the terms of the settlement agreement, corporation or its sole owner were obligated to pay those taxes. FAMILY LAW 20-2-0269 Maryann Nittoli v. Joseph Nittoli, App. Div. (4 pp.) Trial judge properly determined defendant s contribution to daughter s college education at private school, despite defendant s assertion that daughter should attend less expensive state school, finding that if defendant had been residing at home with his family, the parties would have made a substantial effort to send their daughter to the private school. Judge further did not abuse her discretion in imputing income to defendant from a second job which he had quit with the knowledge that his daughter was going to school, and expenses would increase. 20-2-0270 Leonard Marshall v. Annette Marshall, App. Div. (2 pp.) Court properly denied former professional football player s motion to terminate his three-year rehabilitative alimony obligation in the third year when he was no longer employed as a football player, since he had earned over $3 million in the previous two years, and the total three-year alimony amount was only $270,000. GOVERNMENT — LOCAL PUBLIC CONTRACTS LAW 21-2-0271 Ozzard Wharton v. Somerset Raritan Valley Sewerage Authority, App. Div. (16 pp. — includes dissent) Law Division judge correctly granted declaratory judgment to defendant, holding that its five-year contract with plaintiff law firm was void ab initio under the LPCL — which states that contracts cannot exceed one year — and N.J.S.A. 40:14A-5(e) of the Sewerage Authorities Law authorizes the defendant to appoint employees for longer terms, but not independent contractors such as plaintiff law firm. LAND USE 26-2-0272 Henry Hahn, et al. v. Bd. of Adj. of the Twp. of Saddle Brook, et al., App. Div. (20 pp.) (1) The doctrine of res judicata is not applicable where defendant board denied shopping center application, then entered into a settlement agreement with applicant and granted the new, revised application, because there was no final determination of the first action, and, alternatively, the second application contained sufficient changes. (2) Under the lesser standard for granting conditional-use variances — as opposed to prohibited use variances — the board s granting of the variances was not an abuse of discretion. NEGLIGENCE — INFANT DART-OUT 31-2-0273 Daniel Monahan, et al. v. Victor M. Basinsky, et al., App. Div. (5 pp.) Verdict of no cause is affirmed since proofs permitted the jury to find that four-year old child, in pursuit of family dog, suddenly darted out in front of defendant, who was driving at an appropriate speed, and who then could then not avoid hitting the child. TAXATION 35-2-0274 Twp. of Pennsville v. Dir., Div. of Taxation, App. Div. (11 pp.) Director of Division of Taxation correctly excluded a real estate sale from the sales ratio study used to develop a table of equalized valuations promulgated by the Director pursuant to N.J.S.A. 54:1-35.1, and the Tax Court judge overstepped her bounds in reversing that order. WORKERS COMPENSATION — OCCUPATIONAL HEART DISEASE 39-2-0275 Albert J. Dietrich v. Toms River Bd. of Education, App. Div. (20 pp.) Petitioner failed to sustain his burden to show that his cardiomyopathy was significantly aggravated or accelerated by his employment as schools superintendent, considering the totality of all the occupational factors and the nature of the disease, and judgment of permanent disability is reversed. [Approved for publication Oct. 16, 1996.] FEDERAL COURT CASES CONTRACTS — OCEAN FREIGHT 11-7-0276 Worldlink Logistics, Inc. v. The National Shipping Co. of Saudi Arabia, et al., U.S. Dist. Ct. (14 pp.) (1) Since plaintiff has set forth enough evidence to demonstrate that reasonable minds could differ as to whether a service contract between the parties for shipment of ocean freight, did, in fact, exist, defendant s motion for summary judgment is denied. (2) The Shipping Act of 1984 does not render the contract unenforceable as a matter of law. [Filed Oct. 7, 1996.] LABOR AND EMPLOYMENT — ERISA 25-7-0277 Brian A. Molnar, et al. v. Sears Roebuck and Co., Inc., etc., et al., U.S. Dist. Ct. (10 pp.) The court dismisses the claims of plaintiffs — who were terminated when employer concluded that plaintiffs were participants in an alleged scam of fraudulent returns — (1) since plaintiffs have failed to make a sufficient showing that employer s termination of them intentionally interfered with their attainment of benefits in violation of ERISA, and (2) since employer s good faith, even if erroneous, exercise of business judgment in the termination does not create a genuine issue of material fact as to the credibility of the employer s otherwise legitimate refutations of intentional wrongdoing. [Filed Oct. 7, 1996.] LABOR AND EMPLOYMENT — SEX AND AGE DISCRIMINATION 25-7-0278 Patricia Dungee v. Northeast Foods, Inc., et al., U.S. Dist. Ct. (25 pp.) Since 50-year old female plaintiff has failed to produce enough evidence to withstand summary judgment on the pretext theory and failed to produce the direct evidence needed to trigger the mixed motive analysis, her complaint — alleging age and sex discrimination in the employer s rejection of her employment application in favor of a more qualified 33-year old male — is dismissed. [Filed Oct. 3, 1996.] SECURITIES 50-7-0279 In re: A.L. Laboratories, Inc. Securities Litigation, U.S. Dist. Ct. (11 pp.) In a class action securities fraud case, (1) the motion for approval of the claim administrator s report on recognized losses and for distribution of settlement funds is approved, including the recommendation that certain late-filed claims be allowed and approved, however (2) the administrator s request for reimbursement of expenses is denied without prejudice for failure to file proper documentation, and (3) the motion for reimbursement of plaintiffs counsel s expenses is granted, but stayed until counsel advises the court of the source from which the expenses shall be paid. [Filed Oct. 7, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The state Supreme Court looks skeptically at a proposal by a group of attorneys to provide one-stop shopping for homebuyers looking for legal advice and title insurance. See page 29 of the Oct.14 Law Journal.

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