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Vol. 4, No. 191 — OCTOBER 3, 1996 STATE COURT CASES CIVIL PROCEDURE — EXCUSABLE NEGLECT 07-2-0161 General Electric Capital Auto Lease, Inc. v. AIM Incentive Marketing, et al., App. Div. (3 pp.) Trial court properly exercised its discretion in denying defendant s motion to vacate judgment entered against him for failure to appear at trial, since, contrary to defendant s contention, he was aware of the trial date or became aware shortly thereafter, and failed to move within a reasonable time to vacate the judgment once it was served upon him, and made no showing that his neglect was excusable. FAMILY LAW — CUSTODY 20-2-0162 Gregory A. Galbo v. Gail S. Gordon, App. Div. (2 pp.) Where husband had become unemployed, and argued that primary residential custody of daughter should be changed to him because he now had more time to care for daughter than fully-employed wife, judge did not err in denying the request on the husband s representation that he was looking for employment, and would again have time constraints when employment was procured, creating the same circumstances which prevailed when custody was originally determined. LABOR AND EMPLOYMENT — CIVIL RIGHTS — FAMILY LEAVE ACT 25-2-0163 Essex Crane Rental Corp. v. Director, Div. on Civil Rights; Pam Lombardelli v. Essex Crane Rental Corp., App. Div. (8 pp.) The court finds that the Family Leave Act, N.J.S.A. 34:11B-1 to -16, which is applicable to employers with 50 or more employees, does not require that the 50 employees all be located in New Jersey, and affirms the decision of the Division on Civil Rights that the Act applies to plaintiff employer, which has only a dozen employees in N.J., although it employs a total of approximately 164 employees in six different states. [Approved for publication Oct. 3, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION — EDUCATION 25-2-0164 Denise M. Hart v. Bd. of Review, et al., App. Div. (5 pp.) Where tenured petitioner s full-year administrative position with defendant university was terminated at the end of June, and she was appointed to a nine-month academic position which did not start until the beginning of the school year in September, at a 20 percent cut in salary, she was properly awarded unemployment benefits commencing in July. LAND USE 26-2-0165 Robert Baker, et al. v. The Planning Bd. of the Twp. of Piscataway, et al., App. Div. (6 pp.) The Law Division correctly upheld the validity of a municipal ordinance creating a shopping center zone from what had been a light industrial zone, since development of the light industry had not materialized, and the endeavor to increase tax ratables by construction of a viable project was a legitimate municipal purpose, despite plaintiffs technical arguments. The lower court also correctly upheld the grant of defendant contractor s application for site plan approval with bulk variances and waivers. NEGLIGENCE — PROXIMATE CAUSE 31-2-0166 Jean Savage v. Super Fresh Supermarket, Inc., etc., et al., App. Div. (3 pp.) Although the jury determined that defendant supermarket was negligent in providing plaintiff inventory worker with two interlocking milk crates for access to the top shelves, the evidence regarding the mechanism of plaintiff s fall from the crates was weak, and the jury s determination that the market s negligence was not the proximate cause of the fall is affirmed. FEDERAL COURT CASES CIVIL RIGHTS — PAROLE 46-7-0167 Willie Jenkins v. Mary K. DiSabato, et al., U.S. Dist. Ct. (4 pp.) The court dismisses without prejudice plaintiff s claims for a temporary restraining order and/or injunctive relief — seeking to prohibit defendants from allegedly continuing to deprive him of his liberty without due process of law by failing to abide by certain state statutes and regulations governing the revocation of parole — finding that the claims must be characterized as challenging the fact or duration of confinement, for which relief may only be raised in a habeas corpus action after exhaustion of state remedies. [Filed Sept. 23, 1996.] CONSTITUTIONAL LAW — FREEDOM OF SPEECH — ETHNIC FESTIVALS 10-7-0168 Indo-American Cultural Society, Inc. v. Twp. of Edison, N.J., et al., U.S. Dist. Ct. (18 pp.) Plaintiff is granted a preliminary injunction — enjoining the enforcement of an amendment to municipal ordinance imposing a midnight curfew on plaintiff s Indian cultural festival — since, inter alia, the curfew burdens substantially more speech than is necessary to further the municipality s asserted interest in preventing disturbance of the community s peace. Further, the municipality s requirement that plaintiff post a bond is stricken as well. [Filed Sept. 23, 1996.][For related opinion, wherein the court struck down a large portion of the underlying municipal ordinance, see DDS No. 10-7- 9679 in the Alert dated July 23, 1996.] INSURANCE — MEDICAL BENEFITS — ERISA 23-7-0169 Michele Grabner, et al. v. John Alden Life Ins. Co., U.S. Dist. Ct. (8 pp.) In a case seeking certification that plaintiff s laminectomy is necessary and covered by medical insurance policy issued through her husband s business, the court finds that the first count of the complaint, which seeks clarification of plaintiffs rights under the plan, is a claim specifically permitted by ERISA and its civil enforcement provisions, and survives defendant s motion to dismiss; however, the second and third counts — alleging causes of action for negligence and loss of consortium — are preempted by ERISA and dismissed. [Filed Sept. 23, 1996.] INSURANCE — REINSURANCE 23-7-0170 Mutual Benefit Life Ins. Co., et al. v. George G. Zimmerman, et al., U.S. Dist. Ct. (3 pp.) The parties having settled the disputes between them, and having stipulated to an Order of Dismissal, it is ordered that the court s prior opinion dated August 8, 1996 in this matter, having been approved for publication, is hereby withdrawn from publication, including, but not limited to, publication in any and all reporters, electronic databases or other publication. [Filed Sept. 24, 1996.][The August 8th opinion can be found under DDS No. 23-7-9972 in the Alert dated Sept. 6, 1996.] PENSIONS — ERISA 56-7-0171 Louis P. Edmonds, Jr. v. LTV Steel Co., U.S. Dist. Ct. (6 pp.) (1) Insofar as plaintiff s complaint contains claims under state law, such claims are dismissed because they relate to an employee pension benefit plan that is governed by, and preempted by, ERISA. (2) Because money damages are not available under ERISA, defendant s motion to strike plaintiff s claims for damages is granted. (3) Since plaintiff is not entitled to a jury trial under ERISA, defendant s motion to strike plaintiff s jury request is granted. [Filed Sept. 25, 1996.] NEXT WEEK IN THE … The state Attorney General’s office backs down from a propsed election rule that a federal judge said would give voters the old run-around. See page 1 of the Oct. 7 Law Journal.

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