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Vol. 4, No. 197 — October 11, 1996 STATE COURT CASES CIVIL PROCEDURE — APPEALS 07-2-0243 Atlantic City Landlords Assn., etc., et al. v. City of Atlantic City, etc., App. Div. (3 pp.) As the result of the trial court s misconception of R. 4:42-2, this appeal — involving a multi-faceted challenge to the enforcement of certain provisions of the defendant s municipal code — is improperly before the appellate division and must be dismissed and remanded for resolution of outstanding issues. DEBTOR/CREDITOR — FORECLOSURE — NOTICE 15-2-0244 Nationscredit Financial v. Carol A. Luberecki, App. Div. (3 pp.) Since fair and adequate notice of the sheriff s sale was given to defendant by the posting of notice on defendant s door and by sending timely notice by certified mail, defendant s motion to set aside the sheriff s sale was properly denied. ENVIRONMENT — ASBESTOS 17-2-0245 Contamination Control Engineering, Inc. v. Dept. of Community Affairs, etc., et al., App. Div. (8 pp.) The record supports the determination that tile removal project was a friable project and that inadequate barriers were in place to prevent airborne asbestos fibers from contaminating the building environment, and rejection of appellant s contest of notice of violation and order to pay penalty for failing to adequately supervise asbestos removal project is affirmed. INSURANCE — DEFENSE AND INDEMNIFICATION — WRONGFUL TERMINATION 23-2-0246 Liberty House Nursing Home v. Continental Ins. Co., App. Div. (6 pp.) Where plaintiff was sued by its former employee for wrongful termination, and sought defense and indemnification under its commercial general liability policy, the court erred in holding that plaintiff s discharge was a business decision and was not an occurrence within the meaning of the policy, and summary judgment in favor of insurer is reversed. INSURANCE — U.I.M. 23-2-0247 Sheri Frankel v. Motor Club of America Ins. Co., et al., App. Div. (6 pp.) Judge was correct in holding that Aubrey limits plaintiff s recourse to the UIM coverage afforded by her own insurance policy, and that that insurer is liable to indemnify her under the terms of the UIM provisions of her policy, and to the extent that Royal Ins. Co. v. Rutgers Casualty Ins. Co., 271 N.J. Super. 409 (App. Div. 1994) holds to the contrary, it was overruled sub silentio by Aubrey. [Decided Ovt. 11, 1996, Approved for publication Mar. 10, 1997] 23-2-0248 Bradley L. Feinberg v. Hanover Ins. Co., App. Div. (3 pp.) Trial court correctly found that defendant insurer had received sufficient advance notice of plaintiff s settlements with both driver-tortfeasors in order to protect its subrogation rights, and judgment ordering defendant to submit to UIM arbitration is affirmed. NEGLIGENCE 31-2-0249 Gary Worthington v. Jacqueline A. Maines, etc., et al., App. Div. (7 pp.) In case where hospitalized plaintiff s medical status was not communicated to probation office, and where plaintiff — then arrested for failure to make child support payments — was allegedly assaulted in prison and sued various parties in the chain of communication for negligence, the trial judge correctly held, inter alia, that the chain of events, including the eventual attack, was too attenuated to satisfy the proximate cause requirement of a negligence claim, and dismissal of the case is affirmed. NEGLIGENCE — SIDEWALKS 31-2-0250 Amy M. Greenberg v. Frederick Greenberg, et al., App. Div. (3 pp.) The lease of defendants carriage house did not render the property commercial for purposes of imposing liability on the defendants for plaintiff s fall on their sidewalk, and summary judgment for the defendants was proper. PHYSICIAN/PATIENT 29-2-0251 Charlene Correll v. Myroslaw Choma, M.D., App. Div. (4 pp.) Plaintiff s complaint was erroneously dismissed with prejudice for her failure to provide answers to interrogatories, since it does not appear that plaintiff s counsel received notice of the motion to dismiss, and such dismissal with prejudice should not have been entered without notice to plaintiff herself. PUBLIC EMPLOYEES — FIREFIGHTERS — DRUG ADDICTION 33-2-0252 In the Matter of Henry Jackson, App. Div. (6 pp.) There is a point where the public interest in rehabilitation of drug addicted firefighter — and the reasonableness of accommodation to the firefighter s handicap required by N.J.A.C. 13:13-2.5 — must yield to public interest in protecting life, limb and property, and municipality was properly held to have fairly accommodated the firefighter in reinstating him after first rehabilitation effort, but terminating him after he again tested positive, even though he successfully completed a second rehabilitation effort thereafter. [Approved for publication Oct. 11, 1996.] TAXATION 35-5-0253 Twp. of Nutley v. Leonard Anzalone, et al., App. Div. (13 pp.) On landowners tax appeal — alleging that their lands had decreased in value due to the proximity to park and the increase in litter, noise, and traffic — Tax Court erred in disregarding cogent evidence presented by the municipality and giving greater credence to the limited testimony of two property owners; trial judge was required to evaluate the evidence without any presumption of correctness to the County Board of Taxation judgment because the presumption had been properly rebutted, and reduction in assessments is reversed and remanded. WRONGFUL DEATH 40-2-0254 Martha Negron, etc., et al. v. Ramon Llarena, M.D., et al., App. Div. (3 pp.) The trial court wrongly concluded the two- year statute of limitations in N.J. s Wrongful Death Act did not bar plaintiff s medical malpractice claim, and the court s effort to graft an equitable tolling provision exceeded judicial authority, therefore summary judgment should have been entered for the defense. CRIMINAL LAW — MEGAN S LAW 14-2-0255 In the Matter of Registrant G.E., etc., App. Div. (2 pp.) Registrant s Tier Two classification was correct and the trial judge properly classified the victim as an acquaintance in factor four, victim selection and properly included a prior lewdness offense in scoring under factor five, number of offenses/victims and under factor six, duration of offensive behavior. FEDERAL COURT CASES BANKRUPTCY 42-6-0256 In re: 865 Centennial Avenue Associates Ltd. Partnership, debtor, U.S. Bankruptcy Ct. (36 pp.) In analyzing the various appraisal evidence in this single asset real estate case, the court finds that the granting of creditor s motion to dismiss debtor s Chapter 11 proceeding is warranted because there is no possibility of a successful reorganization, and, as collateral estoppel does apply to valuation, the court is bound by the amount due as set forth in the final judgment of foreclosure. [Filed Oct. 1, 1996.] LABOR AND EMPLOYMENT 25-7-0257 Aristides Martinez v. National Broadcasting Co., et al., U.S. Dist. Ct. (17 pp.) (1) Since the three-year statute of limitations for the applicable N.Y. Human Rights Law precludes the plaintiff from asserting that part of his failure to re-hire claim which arises out of employer s 1988 letter, employer s motion to bar said claim is granted. (2) Notwithstanding plaintiff s failure to oppose the balance of the motion to dismiss, given the procedural history of the case, and the court s prior finding that plaintiff had raised a genuine issue of material fact regarding his failure to hire claim, thus preventing the court from previously granting summary judgment to the defense under the NJLAD, the court must be bound by the same factual findings and denies the employer s summary judgment motion under the NYHRL, which has the same burden of proof. [Filed Oct. 1, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A state Supreme Court subcommittee recommends that fresh complaint evidence — comments made by a victim to a third party about a sexual assault — generally should not be admitted to support or impugn the victim’s credibility. See page 1 of the Oct. 14 Law Journal.

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