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Vol. 4, No. 194 — OCTOBER 8, 1996 THIS WEEK IN THE … New Jersey judges are issuing conflicting rulings on proof required for pain and suffering damages when uninsured pedestrians are involved in hit-and-run accidents. See page 1 of the Oct. 7 Law Journal. STATE COURT CASES ATTORNEYS — SHARING OF CONTINGENT FEES 04-2-0202 Rachel Moshkovitch, etc.; Samuel Lachs, Esq. v. Alex P. Partala, et al., App. Div. (6 pp.) In dispute between plaintiff’s former and final attorneys over their respective entitlements to shares in a contingent fee, the judge was correct in resolving the dispute on a quantum meruit basis, but erred in calculating former attorney’s fee based solely on hours of work multiplied by an hourly rate, since his entitlement must be calculated by assessing the benefit conferred upon the plaintiff from the attorney’s efforts. CONSTRUCTION — CONTRACTS 43-2-0203 Hallmark Country Homes, Inc. v. Michael I. Borochowski, App. Div. (6 pp.) Jury verdict awarding contractor damages for homeowner’s breach and failure to pay on construction contract is affirmed; however, court’s reduction of damages award on homeowner’s counterclaim for defective flooring is reversed. EVIDENCE — ADOPTIVE ADMISSIONS 19-2-0204 Gladys Good v. L.V. Evans, et al., App. Div. (3 pp.) In case involving plaintiff’s fall in defendants’ tavern, jury’s finding that the fall was caused solely by defendant’s negligence is affirmed, and the judge did not err in excluding purported “adoptive admission” in an emergency room document — which stated that plaintiff fell while dancing — since there was no suggestion as to the genesis of the statement, which plaintiff categorically denied making. FAMILY LAW 20-2-0205 Lynnette Kelly v. Louis D. Montresor, App. Div. (12 pp.) Judge properly (1) granted plaintiff’s application for modification of the parties’ visitation schedule, (2) awarded plaintiff child support, (3) required defendant to pay $5,000 toward plaintiff’s counsel fees, and (4) denied defendant’s application for reimbursement of a portion of the son’s private school tuition. INSURANCE — INCOME CONTINUATION BENEFITS 23-2-0206 Christine Buccilli v. N.J.A.F.I.U.A., App. Div. (7 pp.) Judge correctly dismissed plaintiff’s claim for income continuation benefits, finding that plaintiff’s disability was attributable only to her first accident and that she did not suffer a loss of income due to this disability. INSURANCE — VERBAL THRESHOLD 23-2-0207 Mary E. Nohavec v. Samira H. El-Zind, et al., App. Div. (3 pp.) Trial judge properly denied plaintiff’s motion to vacate summary judgment on the ground that the alleged newly- discovered evidence — a Thermogram — was discoverable at the time of the original motion, had the plaintiff exercised due diligence. JURISDICTION 24-2-0208 Foley Incorporated, etc. v. Jaimez Holloway v. H.O. Penn Machinery Co., Inc., et al., App. Div. (6 pp.) Since third- party defendant was, in effect, plaintiff’s agent for the repair of defendant’s truck in Connecticut, and plaintiff was third- party defendant’s agent for the collection of the bill from defendant, the contacts of third-party defendant were significantly extensive and systematic relating to this transaction, and are minimally sufficient to support the judge’s finding that the court has specific jurisdiction over third-party defendant. TAXATION 35-2-0209 Bllum Limited Partnership v. Bloomfield Twp., App. Div. (7 pp.) The requirement that taxes and municipal charges due be paid at the time that appeals from tax assessments are taken appears in N.J.S.A. 54:3-27 with regard to both initial appeals to the county board of taxation as well as to the Tax Court directly, and also in N.J.S.A. 54:51A-1(b) with respect to appeals to the Tax Court from judgments of the county boards of taxation. [Approved for publication Oct. 8, 1996.] TORTS — DEFAMATION 36-2-0210 Lynn M. Fleeger v. Asbury Park Press, Inc., et al., App. Div. (3 pp.) Court affirms summary judgment in favor of radio station and talk show commentators in the defamation suit brought by public affairs director of the Turnpike Authority, since the comments made about her, although vulgar and tasteless, were parody, humor and opinion protected by the First Amendment, and not assertions of fact which anyone would take to be truthful. CRIMINAL LAW AND PROCEDURE 14-2-0211 State v. Lowell Barnes, App. Div. (13 pp.) The court’s instruction on the charge of possession of a weapon for an unlawful purpose constituted plain error warranting a new trial on that count. FEDERAL COURT CASES ATTORNEY/CLIENT — DISQUALIFICATION — SUBROGATION 04-7-0212 The Port Authority of N.Y. and N.J. v. Arcadian Corp., et al., U.S. Dist. Ct. (9 pp.) In light of the possibility that conflicts of interest could arise during law firm’s concurrent representation of the Port Authority’s subrogated interests in this case and the Port Authority’s adversary in related case — both arising out of the bombing of the World Trade Center — the Magistrate’s decision to disqualify law firm as counsel for Port Authority in this case is not clearly erroneous or contrary to law, and is affirmed. [Filed Sept. 26, 1996.] CONTRACTS 11-7-0213 Trimedyne, Inc. v. C.R. Bard, Inc., U.S. Dist. Ct. (20 pp.) In a matter dealing with defendant’s alleged breach of agreement for exclusive worldwide distributorship of plaintiff’s medical laser fibers, the court denies defendant’s motion to dismiss, finding that plaintiff has adequately pleaded its breach of contract claim, and , inter alia, that defendant’s refusal to promote or sell plaintiff’s product plausibly could cause a loss of sales and market share for plaintiff. [Filed Sept. 26, 1996.] ENVIRONMENTAL — C.E.R.C.L.A. 17-7-0214 U.S.A., et al. v. Rohm and Haas Co., et al. v. John Cucinotta, et al., U.S. Dist. Ct. (34 pp.) The court finds that defendant Owens-Illinois does fall within the class of persons liable for removal and response costs under CERCLA 107, and, after a lengthy analysis striking all of the proffered affirmative defenses to liability, grants the plaintiff’s motion for declaratory judgment for future response costs under CERCLA 113(g)(2); however, the court nevertheless denies both parties’ motions for summary judgment to the extent that there is a genuine issue of material fact with respect to the apportionment concept/ divisibility of harm defense. [Filed Sept. 27, 1996.][For publication.][For related case, see DDS No. 17-7-0215 below.] 17-7-0215 U.S.A., et al. v. Rohm and Haas Co., et al. v. John Cucinotta, et al., U.S. Dist. Ct. (18 pp.) (1) The failure of Owens-Illinois to carry its burden of establishing the NJDEP as a liable or potentially liable party under CERCLA 107(a) forecloses the possibility of success of any contribution claim under Section 113(f), and therefore NJDEP’s summary judgment on this prong of the counterclaim is granted. (2) Counterclaim for recoupment against NJDEP is also stricken, since no waiver of sovereign or Eleventh Amendment immunities has occurred, and since the recoupment counterclaim would be unsuccessful in any event under the N.J. Tort Claims Act. [Filed Sept. 27, 1996.][For publication.][For related case, see DDS No. 17-7-0214 above.] ENVIRONMENTAL — CONSTITUTIONAL LAW 17-7-0216 Waste Management of Pennsylvania, Inc., et al. v. Robert C. Shinn, Jr., etc., et al., U.S. Dist. Ct. (43 pp.) The court grants plaintiff’s motion for partial summary judgment, declaring that New Jersey’s waste disposal “self-sufficiency” objective discriminates against out-of-state waste disposal businesses in favor of in-state economic interests without serving any legitimate local interest which could not be addressed by less restrictive means, and therefore is in violation of the Commerce Clause of the United States Constitution, and the court enjoins implementation of waste flow regulations and permit conditions which further N.J.’s self- sufficiency objective. [Filed Sept. 27, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The state Supreme Court dismisses as moot the appeal of death row inmate Joseph Harris, who died on the eve of the scheduled arguments. See page 5 of the Oct. 7 Law Journal.

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