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Vol. 4, No. 188 — SEPTEMBER 27, 1996 STATE COURT CASES ENVIRONMENT 17-2-0109 I/M/O Jersey Central Power & Light Co., etc.; I/M/O Request for Approval of the Co-Extensive Jurisdiction Energy Facility, etc., App. Div. (9 pp.) Final decision of the DEP — granting an air pollution control permit to JCP&L — and the finding of the BPU — that JCP&L may proceed with installation of a new advanced combustion turbine at one of its generating stations without a certificate of need, and without being subjected to a market test — are affirmed, over the objections of the Independent Energy Producers of N.J. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0110 John Giantonio v. Bd. of Review, et al., App. Div. (3 pp.) Where evidence showed that employee left work because he was dissatisfied with a modest reassignment of work, and perhaps that he did not really need the job, he was properly declared ineligible for benefits, despite his allegation that his outside sales position was eliminated. 25-2-0111 James D. Laney v. Bd. of Review, et al., App. Div. (7 pp.) Former field engineer was properly held ineligible for unemployment benefits because he failed to produce sufficient medical evidence to prove his contention that his health problems were due to the extended traveling he had to do for the job. NEGLIGENCE 31-2-0112 David G. Sowers, et al. v. Boyd N. Sweeley, et al., App. Div. (4 pp.) Judge did not err in charging the “sudden emergency doctrine and jury verdict of no cause is affirmed. PHYSICIAN/PATIENT 29-2-0113 Penice Ranier v. Lawrence Frieman, M.D., et al., App. Div. (13 pp.) A physician retained by the Dept. of Labor, Div. of Disability Determinations to examine a claimant for social security disability benefits owes a duty to the examinee to exercise reasonable professional care in rendering a diagnosis, at least with respect to the symptoms and complaints on which the examinee has based the disability claim, and summary judgment dismissing the complaint against doctor is reversed. [Approved for publication Sept. 27, 1996.] REAL ESTATE — WATER RUN-OFF FROM ADJOINING PROPERTY 34-2-0114 Rocco Giannetti, et al. v. Howard Bedell, et al., App. Div. (3 pp.) On a complaint alleging damages to plaintiffs land from water run-off from defendants land, the trial judge adequately found that run-off onto plaintiff s property was normal, did not originate on defendant s property, and was experienced by others in the same hillside location, and since plaintiffs did not produce required expert testimony to establish that defendants construction of a garage and paving or repatching of driveway increased the water flow onto plaintiffs property, the complaint was properly dismissed. TAXATION 35-2-0115 Prudential Ins. Co. of America v. Twp. of Parsippany-Troy Hills, App. Div. (3 pp.) Tax Court judge did not err in utilizing the income approach in setting value of plaintiff s property, on which the Parsippany Hilton hotel is located, since both experts had utilized that approach, and judgment reducing assessed value is affirmed. WORKERS COMPENSATION 39-2-0116 Joseph Pelican v. CIBA Geigy, App. Div. (5 pp.) Judge s decision dismissing two claim petitions and awarding petitioner 45% partial total disability on his “reopener petition is affirmed, and petitioner s contentions that judge s decisions were tainted by a personal bias against petitioner, or his contention that his right to due process was violated by delay and the judge s refusal to transfer the matter are all without merit. CRIMINAL LAW AND PROCEDURE 14-2-0117 State v. William Slobin, et al., App. Div. (5 pp.) The common law right of property owners to exclude disruptive patrons, or patrons who threaten the security of the premises and its occupants, is not limited to a 24-hour period; and moreover, the Casino Control Act, N.J.S.A. 5:12-1 to -210, now recognizes the common law right of a casino licensee “to exclude or eject permanently from its casino hotel any person who disrupts the operation of its premises, threatens the security of its premises or its occupants, or is disorderly or intoxicated, and defendants convictions for defiant trespass are affirmed. [Approved for publication Sept. 24, 1996.] FEDERAL COURT CASES CIVIL PROCEDURE — INTERLOCUTORY APPEALS — ATTORNEY DISQUALIFICATION 07-7-0118 Sebastian Cardona v. General Motors Corp.; Louis Marazzo v. Chevrolet Motor Division, etc., U.S. Dist. Ct. (14 pp.) In these relatively straightforward “Lemon Law cases, the court denies plaintiffs motion seeking certification for interlocutory appeal of magistrate judge s order disqualifying plaintiffs attorney, since the question of law is not “controlling, there is no substantial ground for difference of opinion, and the immediate resolution of the issue will not materially advance the ultimate termination of the litigation, and, in fact, would delay it. [Filed Sept. 20, 1996.][For publication.] ENVIRONMENT — ATTORNEYS FEES 17-7-0119 Clean Ocean Action, et al. v. Colonel Thomas A. York, et al., U.S. Dist. Ct. (12 pp.) Plaintiffs are entitled to attorneys fees under the Equal Access to Justice Act, 28 U.S.C. 2412 as a “prevailing party,” since, although they may not have received the relief they initially sought, they have, by means of this action, required the EPA to amend its regulations and have increased the likelihood that, in the future, the agency will act in a manner consistent with the regulations and support its actions with adequate findings. [Filed Sept. 19, 1996.] INTELLECTUAL PROPERTY 53-7-0120 Alpine Lace Brands, Inc. v. Kraft Foods, Inc., etc., et al., U.S. Dist. Ct. (17 pp.) (1) As plaintiff claims a pH of no higher than 5.5 at the relevant point in cheese-making process, and the low- fat cheese used by defendants Borden and Schreiber does not ever achieve such a low pH, Borden and Schreiber cannot be said to literally infringe Alpine’s patent, nor is the patent infringed under the Doctrine of Equivalents, and summary judgment is granted to these defendants. (2) Since material issues of fact remain as to the timing and specifics of the pH levels of samples taken at defendant Beatrice’s plant, however, summary judgment is denied. [Filed Sept. 23, 1996.] LABOR AND EMPLOYMENT — ARBITRATION 25-7-0121 Teamsters, Chauffeurs, Warehousemen and Helpers, Local, etc. v. Carolina Freight Carriers Corp., U.S. Dist. Ct. (9 pp.) Defendant’s motion for summary judgment is granted and arbitrator’s award — finding that employee had violated the collective bargaining agreement by engaging in an unauthorized strike action and unauthorized work stoppage — is confirmed, the arbitrator making his award from the essence of the CBA, taking into account the relevant law, and not engaging in any misconduct or exceeding the scope of his authority. [Filed Sept. 18, 1996.] NEGLIGENCE — SIDEWALK LIABILITY — RAILROADS 31-7-0122 Valerie Hollus v. Amtrak Northeast Corridor, et al., U.S. Dist. Ct. (35 pp.) Railroad is not liable to plaintiff, who tripped over a weed growing over a sidewalk from an abutting railroad bridge, where the railroad does not own, maintain, or directly benefit from the sidewalk. [Filed Sept. 20, 1996.][For publication.]

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