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Vol. 4, No. 195 — October 9, 1996 STATE COURT CASES EDUCATION — DOMICILE 16-2-0217 Whasun Lee, etc. v. Bd. of Education of the Twp. of Holmdel, App. Div. (16 pp.) The court reverses decision of state board of education — holding that parents are responsible for tuition attributed to their two sons attendance in the Holmdel school district between 1990 and 1994 because they were domiciled in Colt s Neck — and remands for reconsideration of the unclean hands concept and equitable estoppel and for additional factual findings concerning parents understanding of representations made by school officials that ownership of property and payment of real estate taxes in district sufficed to meet domicile requirement. Court upholds state board s finding that family did not meet temporary residency requirement in 1994-5 when their sole purpose in establishing that temporary residence was to obtain free education for their sons. ENVIRONMENT — DREDGING PERMITS 17-2-0218 Great Lakes Dredge and Dock Co. v. Dept. of Environmental Protection, et al., App. Div. (7 pp.) The procedural deficiencies in the issuance of new dredging permits are serious enough to require the court to direct the DEP to suspend the permits until it has had the opportunity to review and pass upon the plaintiff s objections thereto. FAMILY LAW 20-2-0219 Denise Novaes Arias v. Joseph Arias, App. Div. (3 pp.) Where the DYFS evaluation and the testimony of the experts and guardian ad litem all concluded that the inappropriate touching allegations against mother s boyfriend were baseless, there was no prima facie showing that the best interest of the children required the removal of the mother as the principal custodial parent, and the judge did not err in failing to hold a plenary hearing on father s change of custody application. INSURANCE — U.C.J.F. — SETTLEMENTS 23-2-0220 Jose Echevarrie v. Director of the N.J. Dept. of Motor Vehicles, et al., App. Div. (8 pp.) There is nothing within the statutory scheme to support judge s enforcement of settlement over objection by the Unsatisfied Claim and Judgment Fund, concluding that the Fund s rejection of settlement after five months was arbitrary and unreasonable. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0221 Ronald Trotman v. Bd. of Review, et al., App. Div. (4 pp.) Former employee of welding company was properly denied unemployment benefits because he was discharged due to gross misconduct when he stole five iron railings from his employer. 25-2-0222 In the Matter of Edward H. Renaud; Edison Twp. Bd. of Education v. Bd. of Review, App. Div. (7 pp.) The administrative agency wholly ignored undisputed evidence that township board of education was at all times willing to accommodate teacher s narcolepsy disability in offering him a middle school position when his high school position was not renewed due to budgetary constraints, and therefore teacher was improperly granted benefits since he rejected the board s offer of suitable employment. NEGLIGENCE — TORT CLAIMS ACT 31-2-0223 Dennis Garrison v. Twp. of Middletown, App. Div. (7 pp.) In a case where plaintiff was injured on crumbling and uneven pavement while playing football in a municipal parking lot, the judge erred in granting defendant s summary judgment motion by focusing on the fact that the parking lot was not being put to its intended use, since the real question was whether it was reasonably foreseeable by the municipality that the lot would be so used, and since there was evidence that the municipality knew about the use and never acted to prohibit same. PHYSICIANS — CERTIFICATION 29-2-0224 Joan Jaszczult, D.O. v. American Bd. of Internal Medicine, et al., App. Div. (9 pp.) Although the waiver and hold harmless agreement which physician signed in certification application was an adhesion contract, and physician is entitled to contest the reasonableness of her being denied the opportunity to sit for examination to be certified in internal medicine, the court affirms the dismissal of physician s complaint against the American Board of Internal Medicine and individual defendants for denying her application to sit for the examination, since the Board s regulations are reasonable as applied, and plaintiff is not without alternative recourse to become board-eligible by performing extra work. PUBLIC EMPLOYEES — RETIREMENT PENSIONS — POLICE — MEDICAL BENEFITS 33-2-0225 Joseph Wolfersberger, Jr. v. Borough of Pt. Pleasant Beach, App. Div. (10 pp.) Although N.J.S.A. 43:16A-11.11 permitted plaintiff/policeman s military service to be counted toward his 25 years service for purposes of his qualifying for retirement pension, N.J.S.A. 40A:10-23, dealing with medical benefits, does not include the military service, and municipality is not required to pay plaintiff s benefits because he only had 23 actual years of service; plaintiff s argument that the statutes must be read in pari materia argument disregards the significant differences in the language, purposes and legislative history of the two statutes. The intent of the collective bargaining agreement is immaterial to the statutory analysis. WILLS, ESTATES AND TRUSTS 38-2-0226 In the Matter of the Estate of Samuel Breslow, Deceased, App. Div. (5 pp.) Summary judgment was properly entered dismissing the claim of decedent s surviving siblings against his estate, since the will left estate to decedent s wife, with remainder to son, and both survived decedent, therefore son s right became vested and indefeasible, and although son predeceased his mother, his future interest passed to his wife according to his estate. FEDERAL COURT CASES BANKRUPTCY — FORECLOSURE — REDEMPTION 42-6-0227 In re: Mutamba and Viola Ziyambe, U.S. Bankruptcy Ct. (22 pp.) The termination date of the right to cure a mortgage default through a Chapter 13 plan under Sec. 1322(c)(1) is the date of a sheriff s sale of the mortgaged property; while the debtors retain their state law right of redemption after filing their Chapter 13 petition within 10 days following the sale, they cannot extend that right of redemption under a Chapter 13 plan that is filed after a foreclosure sale beyond the 10 day state law redemption period as extended an additional 60 days by operation of 11 U.S.C. 108(b). [Filed Sept. 13, 1996.][For publication.] 42-6-0228 In re: Robert L. Little, et al., U.S. Bankruptcy Ct. (22 pp.) The termination date of the right to cure a mortgage default through a Chapter 13 plan under Sec. 1322(c)(1) is the date of a sheriff s sale of the mortgaged property; while the debtors retain their state law right of redemption after filing their Chapter 13 petition within 10 days following the sale, they cannot extend that right of redemption under a Chapter 13 plan that is filed after a foreclosure sale beyond the 10 day state law redemption period as extended an additional 60 days by operation of 11 U.S.C. 108(b). [Filed Sept. 13, 1996.][For publication.] CONTRACTS — SETTLEMENTS — UNILATERAL MISTAKE — INTERVENTION 11-7-0229 Jacklyn Miller, etc. v. Richard Anscher, et al., U.S. Dist. Ct. (5 pp.) Court denies the intervention application of a non-party — retained by non-party insurance company to create a structured settlement in medical malpractice case — since the non- party applicant seeks to intervene based on its own unilateral mistake in utilizing the wrong birth date of the brain-damaged infant plaintiff, which issue is not related to the subject of the main action or to any claim or defense therein. [Filed Oct. 1, 1996.] CORRECTIONS — CIVIL RIGHTS 13-7-0230 Abdullah Khaliq v. William H. Fauver, et al., U.S. Dist. Ct. (17 pp.) The court dismisses plaintiff s civil rights action against commissioner of state Dept. of Corrections, since the commissioner was not personally involved with, or even knew about, the alleged conduct — failing to provide inmate with a non-meat diet compatible with his religious beliefs, and failing to provide adequate medical care when the inmate was transferred to the county court for hearings — and the commissioner is not responsible under the doctrine of respondeat superior. [Filed Sept. 30, 1996.] LABOR AND EMPLOYMENT — CLASS CERTIFICATION 25-7-0231 Ronald J. Kresefsky, et al. v. Panasonic Communications and Systems Co., et al., U.S. Dist. Ct. (30 pp.) The court denies plaintiffs application for class certification in discrimination case resulting from an allegedly pretextual reduction in force (1) since none of named plaintiffs filed an EEOC charge which alleged, or at least put defendants on notice of, class-wide age discrimination charges, and they may therefore not proceed with their claims before the court, and (2) since plaintiffs showings with respect to commonality, numerosity and typicality are patently insufficient to support their race and national origin claims. Court also affirms Magistrate Judge s determination striking or limiting in scope certain of plaintiffs interrogatories, finding that they sought information the relevance of which was outweighed by the burdens the questions would impose on the defendants. [Filed Aug. 9, 1996.][For publication Sept. 25, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A Law Journal survey of attrition rates among newly hired lawyers at the state’s largest firms shows that 20 percent leave within a year or two. And 44 percent of those hired in 1993 were gone three years later. See page 29 of the Oct. 7 Law Journal.

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