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VOL. 4, No. 192 — OCTOBER 4, 1996 STATE COURT CASES AUTOMOBILES — DRIVER S LICENSE SUSPENSION 05-2-0172 State v. Rebecca Ferrier, App. Div. (3 pp.) (1) Defendant should have challenged any deficiencies in the suspension of her driver s license by appealing from that decision, rather than attacking it collaterally as a defense to a charge of driving while her license was suspended. (2) Jurisdiction to consider an attack on a final decision of a state administrative agency is vested exclusively in the Appellate Div. and to the extent that State v. Kinder and State v. Wenof suggest the contrary, they are overruled. [Approved for publication Oct. 4, 1996.] CONTRACTS — ORAL PROMISES — STATUTE OF FRAUDS 11-2-0173 Harmony Heating Corp., et al. v. Gil Isabelle, et al., App. Div. (7 pp.) The trial court erroneously granted defendant s motion for an involuntary dismissal on plaintiff s action to enforce defendant s oral promise, since the plaintiff testified that his corporations relied upon the promise to their detriment, and would not have finished certain work without the defendant s promise to pay for that work, and such a promise, which constitutes an original undertaking, need not be in writing. FAMILY LAW — CHILD SUPPORT MODIFICATION — INCARCERATION OF PARENT 20-4-0174 Bergen Cy. Bd. of Svcs., etc. v. Todd Steinhauer, Chancery Div. (12 pp.) Long-term incarceration is a significant change of circumstances which prevents the child support obligor from earning money to pay child support, and where incarcerated defendant has no other assets from which to satisfy the obligation, his child support obligation will be suspended. [Approved for publication Oct. 3, 1996.] INSURANCE — PIP — UM COVERAGE — FAMILY MEMBER 23-2-0175 Kevin Shuman v. Market Transition Facility, et al., App. Div. (5 pp.) Although plaintiff had lived with insured girlfriend for eight years and had three children with her, as an unmarried cohabitant, he did not qualify as a family member under the PIP and UM endorsements of girlfriend s policy, and his complaint seeking such benefits from her policy was properly dismissed. [Approved for publication Oct. 4, 1996.] JUDICIARY — IMMUNITY 48-2-0176 Harry A. Richardson, et al. v. Herbert Lashomb, et al., App. Div. (8 pp.) Since there is no question that judge was acting within his judicial capacity when he signed both the order and the warrant for plaintiff s arrest, he is immune from plaintiff s civil rights claims, and although the orders were issued after a removal action was filed, the judge did not lose the immunity under the circumstances of the case. MUNICIPAL LAW 30-2-0177 Constance L. Newton v. City of East Orange, etc., et al., App. Div. (7 pp.) The city s action in extending City Clerk s position — due to its inability to function without a clerk — clearly reciting in the extension resolution that it did not wish to confer tenure upon her thereby, did not amount to a reappointment such that tenure would statutorily attach. PARENT/CHILD — ADULT ADOPTION — CONSENT OF NATURAL PARENT 28-4-0178 In the Matter of the Adoption of an Adult by V.A., Chancery Div. (8 pp.) Although notice to the natural father is not a specifically-stated condition of the Adult Adoption Statute, N.J.S.A. 2A:22-1, et seq., notice of adoption of adult child by step-parent is required by the Due Process Clause of the Fifth and the Fourteenth Amendments of the Federal Constitution and Article 1,1 of the N.J. Constitution, where proceeding will terminate father s parental rights but will still permit the child to inherit from him. [Approved for publication Oct. 2, 1996.] PARTNERSHIP 02-2-0179 Joseph J. Carr v. Mortenson, Fleming, et al., App. Div. (5 pp.) In a dispute stemming from the retirement of a partner in an accounting firm and dealing with plaintiff s obligation to pay the retirement interest, the judge properly interpreted the partnership agreement and the applicability of the unchallenged related arbitration award, and held that plaintiff s obligation to pay the retirement interest was an individual liability under his agreement with his old firm, and was not assumed by plaintiff s new firm. PRODUCT LIABILITY — PRODUCT LINE SUCCESSORS 32-3-0180 Ramon Class v. American Roller Die Corp., etc., et al., Law Div. (31 pp.) Based on their status, seriatim successors to the original manufacturer whose product injured plaintiff have a right inter sese to common law indemnification pursuant to which the burden of responding in damages to an injured consumer is to be borne equally. [Approved for publication Oct. 2, 1996.] REAL ESTATE — ADVERSE POSSESSION 34-2-0181 Charles Fazio v. Frederick Haseman, Jr., et al., App. Div. (3 pp.) Where plaintiffs assumed that they owned parcel of land and paid taxes thereon, and defendants did not object until they learned later that they truly owned land, judge properly found that plaintiff s use of the disputed parcel was neither exclusive nor visible and notorious, and conclusion that plaintiff had no title to or interest in the parcel, and that defendants had good and perfect title and were the rightful owners thereof, is affirmed. TAXATION 35-5-0182 BDB Enterprises, LLC v. Brick Twp., Tax Ct. (9 pp.) There is no requirement in the law that taxes be paid as a prerequisite to an appeal to the Tax Court of a judgment of a county board of taxation dealing with an added assessment. [Approved for publication.] CRIMINAL LAW AND PROCEDURE — MEGAN S LAW 14-2-0183 In the Matter of Registrant A.H., etc., App. Div. (3 pp.) While appellant properly argues that the use of the Sex Offender Risk Assessment Scale as the sole basis for a decision on a tier designation may, in some cases, give a skewed result, the court finds no basis on which to conclude that that was the case here, and appellant s Tier Two classification is affirmed. CRIMINAL LAW AND PROCEDURE — SEIZURE 14-2-0184 State v. James Tobin, App. Div. (8 pp.) Under the circumstances of the case, where police officer politely — although with a minimum level of excitement — asked defendant to stop and talk to him, did not touch defendant or draw or even touch his weapon, the officer s conduct could not be fairly categorized as an indication to any reasonable person that compliance with his request might be compelled, and the trial judge erred in finding that the conduct constituted an impermissible seizure. CRIMINAL LAW AND PROCEDURE — SENTENCING 14-3-0185 State v. Darnell Cooper, Law Div. (13 pp.) The court can, sua sponte, enhance the sentence of a defendant to a period of parole ineligibility that is longer than that recommended by the prosecutor in a plea agreement, as a result of the defendant s violation of a condition attached by the court to defendant s release after he entered into the guilty plea. [Approved for publication Oct. 3, 1996.] FEDERAL COURT CASES CONTRACTS — RESTRICTIVE COVENANTS 11-7-0186 Mansol Industries, Inc., et al. v. Jasjit Singh, U.S. Dist. Ct. (27 pp.) The covenant not to compete in the Separation Agreement between the parties is found to be reasonable and enforceable, and since plaintiff has made a sufficient showing that the industry in question — glass preform markets — is one peculiarly susceptible and vulnerable to predatory pricing, and that it could therefore suffer irreparable harm, its request for a permanent injunction against defendant based upon the covenant is granted. [Filed Sept. 25, 1996.] INTELLECTUAL PROPERTY — SANCTIONS AND FEES 53-7-0187 Bristol-Myers Squibb Co. v. Ivax Corp., et al., U.S. Dist. Ct. (6 pp.) Magistrate judge correctly found that there was insufficient evidence that plaintiff s actions — in filing infringement suit later dismissed — were marked by the bad faith or disregard for the judicial process requisite to impose sanctions on plaintiff and its counsel under 28 U.S.C. 1927, and 35 U.S.C. 285, or under the inherent power of the court. [Filed Sept. 26, 1996.] JURISDICTION — FORECLOSURE — H.U.D. 24-7-0188 Annie James v. Dept. of Housing and Urban Development, U.S. Dist. Ct. (5 pp.) In a case where plaintiff, who is under foreclosure, sues H.U.D. for misrepresentations allegedly made to her about the condition of the property when she bought it, the complaint is dismissed for lack of subject-matter jurisdiction because plaintiff sued the federal agency instead of the federal government and the basis of her complaint — misrepresentation — is excluded from the jurisdiction provided by the Federal Tort Claims Act. [Filed Sept. 25, 1996.] JURISDICTION — REMAND ORDERS 24-7-0189 Brian D. Tinkham v. Mass. Mutual Life Ins. Co., et al., U.S. Dist. Ct. (7 pp.) Court may not review the Magistrate s remand decision since a certified copy of the Order of Remand has been sent to the state Superior Court, stripping the federal court of jurisdiction to enter orders binding upon the parties. [Filed Sept. 25, 1996.] LABOR AND EMPLOYMENT — AGE AND NATIONAL ORIGIN DISCRIMINATION 25-7-0190 Subraman Rao Cherukuri v. Warner-Lambert Co., U.S. Dist. Ct. (22 pp.) While plaintiff may have presented a prima facie discrimination case, he has not shown that the employer s proffered explanation for terminating his employment — that he was involved in an impermissible conflict of interest by having subordinates perform maintenance work at his private properties and by approving excessive overtime for those subordinates for that work — was pretextual, or that the stated justification is false or that discriminatory animus played a motivating role in defendant s decision to terminate his employment. [Filed Sept. 26, 1996.] THIS WEEK IN THE … A new law may hamper the ability of the State Commission of Investigation to do its job, agency officials say. In particular, they are concerned about a requirement that investigation targets be permitted to respond to accusations. See page 1 of the Oct. 7 Law Journal.

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