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Vol. 4, No. 196 — OCTOBER 10, 1996 STATE COURT CASES CONTRACTS 11-2-0232 Ronald Gilgallon v. Clara Bond, App. Div. (10 pp.) On remand of case involving the sale of a business and a liquor license, plaintiff did prove by clear and convincing evidence that the trial testimony of defendant and her husband was willfully false, and the trial judge erred in concluding otherwise; plaintiff s motion to vacate judgment entered in favor of defendant should have been granted. DEBTOR/CREDITOR — FORECLOSURE — WAIVER 15-2-0233 Trenton Savings Bank, etc. v. Jerome A. Sweeney, et al., App. Div. (2 pp.) Although bank twice extended due date of defendants balloon mortgage payment, and continued to accept monthly payments, this did not constitute waiver or estop the bank from foreclosing when the defendant failed to meet the extended due dates, and final judgment in foreclosure is affirmed. EDUCATION 16-2-0234 Bernardsville Borough Education Assn., Inc. v. Bd. of Education, Bernardsville Borough, etc., App. Div. (2 pp.) Court affirms arbitrator s determination that school board did not violate labor contract when it refused to grant teachers personal day requests on scheduled school make-up days — including one on a Saturday — for days lost due to winter weather. JUDICIARY 48-1-0235 In re: The Inquiry of Evan W. Broadbelt, J.M.C., Supreme Ct. (25 pp.) Television appearances by a municipal court judge as a commentator on pending cases in other jurisdictions violates Canons 3A(8) and 2B of the Code of Judicial Conduct. LAND USE 26-2-0236 Smart SMR of N.Y., Inc., etc. v. Borough of Fair Lawn Bd. of Adjustment, App. Div. (19 pp.) Since plaintiff satisfied the positive criteria for the grant of a use variance by demonstrating special reasons for approval — that its high communications tower was an inherently beneficial use which served the public good — and that the proposed use was particularly suited to the site, and since the plaintiff satisfied the negative criteria by showing that the variance would not be a substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and ordinance, the board s denial of the variance is reversed. PHYSICIAN/PATIENT — DENTISTS — JUROR MISCONDUCT 29-2-0237 Robert Pingicer, et al. v. Gerald Whiteman, D.D.S., et al., App. Div. (6 pp.) Trial court correctly denied plaintiffs motion for a new trial based on alleged juror misconduct because (1) plaintiffs had violated R. 1:16-1 which prohibits a party from questioning a juror concerning any matter related to the case, (2) juror s statements to plaintiffs were not necessarily at variance to wither juror s negative answers in voir dire, and (3) statements were not necessarily material to the verdict. FEDERAL COURT CASES BANKRUPTCY — ANTIMODIFICATION 42-6-0238 In re: Steven E. Jones and Linda R. Jones, U.S. Bankruptcy Ct. (12 pp.) The antimodification provision of Bankruptcy Code section 1322(b)(2) applies to a mortgage even though the mortgage secures no value in light of senior liens, however the mortgagee in this case is not entitled to the protection of that provision since, by virtue of the terms of the mortgage, it holds a security interest in fixtures, condemnation awards and insurance proceeds in addition to its mortgage lien, which constitute additional collateral, making the section inapplicable. [Filed Sept. 30, 1996.] CIVIL PROCEDURE — AMENDMENT OF PLEADINGS — PREJUDICE 07-7-0239 Paul D. Gilley, et al. v. Project Strategies Corp., et al., U.S. Dist. Ct. (6 pp.) Court affirms the decision of the Magistrate Judge denying defendant s motion to amend counterclaim to add plaintiffs counsel, since the amendment would effectively disqualify plaintiffs chosen counsel and would unduly delay litigation while new attorneys were obtained and familiarized themselves with case. [Filed Sept. 26, 1996.] CIVIL PROCEDURE — AMENDMENT OF PLEADINGS — EMPLOYMENT 07-7-0240 Julia C. Poveromo-Spring, et al. v. Exxon Chemical Co., et al., U.S. Dist. Ct. (7 pp.) Court grants plaintiffs motion to amend the complaint to name Exxon Corp. in place of Exxon Chemical Co. and Exxon Chemical Americas in caption, and permits plaintiffs to abandon certain claims, however the court otherwise denies plaintiffs motion to amend and further denies plaintiffs motion to remand. [Filed Sept. 30, 1996.] DEBTOR/CREDITOR — FORECLOSURE 15-7-0241 Federal Home Loan Mortgage Corp., etc. v. Fredrich Tauber, et al., U.S. Dist. Ct. (6 pp.) Since plaintiff has established the execution and recording of the mortgage, and alleged non-payment of the mortgage, to which plaintiff was left to its proofs in answering defendants pleadings, and was otherwise not opposed by unanswering defendants, plaintiff is entitled to summary judgment in foreclosure action. [Filed Sept. 25, 1996.] SECURITIES 50-7-0242 Kelly Armbruster v. E. Garrett Bewkes, Jr., et al., U.S. Dist. Ct. (82 pp.) The vast majority of plaintiff s securities fraud claims are not actionable in light of the numerous disclosures pertaining directly to the risks which plaintiff claims were undisclosed, and the court finds that the bespeaks caution doctrine eliminates a large number of plaintiff s claims, although not all. [Filed Sept. 30, 1996.] A Daily Reporter of New Jersey Court Decisions Next week in the … NEXT WEEK IN THE … The state Supreme Court severely curtails judges’ appearances as television commentators. The Court also asks its Advisory Committee on Extrajudicial Activities to formulate rules for such appearances. See page 1 of the Oct. 14 Law Journal.

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