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Vol. 4, No. 189 — OCTOBER 1, 1996 THIS WEEK IN THE … The state Supreme Court is asked to decide whether a defendant can be convicted of felony murder if he or she is acquitted of the underlying felony. Federal and case law are in conflict over the issue. See page 4 of the Sept. 30 Law Journal. STATE COURT CASES Editor s Note: This Alert contains Appellate Division cases released on both September 30th and October 1st. The date of each case follows the squib. CIVIL PROCEDURE 07-2-0123 In the Matter of the Suspension or Revocation of the License of Joseph Fichner, Jr., etc., App. Div. (2 pp.) State Board of Master Plumbers properly denied application to vacate a 1989 disciplinary order against plumber for overcharging customers, since giving deference to the Supreme Court in a related matter then pending before them was well within their discretionary authority. [Sept. 30, 1996.] CIVIL PROCEDURE — DEFAULT 07-2-0124 William Sweeney v. Kiejdan and Trocki, et al., App. Div. (2 pp.) Where plaintiff s complaint was dismissed because he failed to attend a court-ordered deposition, and plaintiff moved to vacate the dismissal based upon excusable neglect due to his attorney s not notifying him of the deposition, the trial court properly denied plaintiff s motion finding that plaintiff had failed to keep his attorney notified of his whereabouts, which led to his not receiving notice. [Sept. 30, 1996.] CONSTITUTIONAL LAW — HUNTING 10-2-0125 State v. Ralph Dionisio, App. Div. (11 pp.) Where defendant traveled a significant distance into an improper Deer Management Zone, he was properly convicted of violating N.J.S.A. 23:3-56.2 for hunting deer with a shotgun in an unauthorized zone, and his argument that the statute is constitutionally vague is without merit. [Oct. 1, 1996.] CONTRACTS 11-2-0126 Roseann Sellani v. Jack Israel, etc., App. Div. (10 pp.) Although plaintiff may well be correct in her assertion that a treasurer s check is the equivalent of a certified check, where the contract specified defendant s insistence on a certified check, plaintiff was properly found to have breached the contract when she proffered a treasurer s check upon delivery of the furniture, however, the matter is remanded for reconsideration of the damages award. [Oct. 1, 1996.] DEBTOR/CREDITOR — BANKRUPTCY 15-2-0127 Michael J. Haber, et al. v. Ambassador Factors Corp., App. Div. (5 pp.) The trial court correctly granted mortgagee s motion for summary judgment dismissing plaintiffs counterclaim on the ground that any claim plaintiffs had against mortgagee was an asset of their bankruptcy estate and was not abandoned by the trustee in bankruptcy, therefore only the trustee, and not plaintiffs, could pursue such a claim. [Oct. 1, 1996.] EDUCATION 16-2-0128 Bd. of Education of the Borough of Bloomingdale, etc. v. Bd. of Education of the Borough of Butler, etc., et al., App. Div. (3 pp.) Judge correctly denied Bloomingdale s petition to terminate its sending-receiving relationship with the Bd. of Education of Butler, finding that termination of the relationship would visit substantial negative educational and financial impact on the quality of education received by pupils in both communities, under criteria of N.J.S.A. 18A:38-13, and should not therefore be allowed. [Oct. 1, 1996.] FAMILY LAW — DOMESTIC VIOLENCE 20-4-0129 Jill Sperling v. Daniel Teplitsky, Chancery Div. (9 pp.) Where the alleged act of domestic violence occurred after the passage of more than four years following the termination of the dating relationship between the parties, the domestic relations act has no application, and plaintiff s application for a final restraining order is denied. [Approved for publication Sept. 30, 1996.] INSURANCE — VERBAL THRESHOLD 23-3-0130 Willie Cureton v. Tracey Eley, et al., Law Div. (9 pp.) Since it appears that the proper interpretation of the PIP portion of the UCJF law is equal treatment of both victims of identified and unidentified uninsured drivers, the court finds that plaintiff, the victim of a hit-and-run driver, is subject to the verbal threshold, and, since his injuries failed to meet the threshold, summary judgment is granted to the defense. [Approved for publication Sept. 30, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0131 Diane B. Grube v. Bd. of Review, etc., et al., App. Div. (2 pp.) Claimant was properly denied benefits when she voluntarily left her job in New Jersey to relocate to Florida with her retired husband. [Sept. 30, 1996.] 25-2-0132 Russell J. Cohen v. Maurice Sporting Goods, et al., App. Div. (4 pp.) Petitioner s actions — in not observing the company dress code and in failing to abide by other reasonable rules and regulations — constituted misconduct as there was a deliberate disregard of those rules, as opposed to mere mistake or inadvertence, and he was properly disqualified for unemployment benefits for a six-week period upon his termination. [Sept. 30, 1996.] 25-2-0133 Vincent Rucinski v. Bd. of Review, etc., et al., App. Div. (5 pp.) Claimant was properly denied supplemental unemployment benefits while he participated in an engineering retraining program under the terms of the Workforce Development Act, N.J.S.A. 43:21-57 to -65. [Oct. 1, 1996.] 25-2-0134 Jay Di Matteo v. Bd. of Review, et al., App. Div. (4 pp.) There was sufficient credible evidence to support the Board s finding that employer s version of facts was more credible, and where employee stayed out of work and claimed to be sick after being denied leave to take a vacation day, he was properly terminated for misconduct and therefore correctly disqualified from six weeks of unemployment benefits. [Oct. 1, 1996.] LANDLORD/TENANT 27-2-0135 Community Realty Management, Inc., etc. v. Nedra Harris, App. Div. (7 pp.) Court correctly found that tenant had voluntarily and knowingly entered into a consent order for a stay of the warrant of removal until the end of the year, and judgment for possession was proper — without the necessity of an evidentiary hearing — when tenant failed to vacate. [Sept. 30, 1996.] NEGLIGENCE — SCHOOL BUS STOPS — IMMUNITIES 31-2-0136 Gladys Christine Withers, etc. v. John Doe, etc., et al., App. Div. (14 pp.) Where infant plaintiff was injured while crossing a highway to get to a school bus stop, judge correctly granted summary judgment to Board of Education, County and adjoining landowner defendants on various theories including immunities, lack of responsibility for the roadway, foreseeable risk and proximate cause. [Sept. 30, 1996.] NEGLIGENCE — TREES — ADJOINING LANDOWNERS 31-2-0137 Avis Rent-A-Car, t/a Car Rentals, Inc. v. Livery Property, Ltd., App. Div. (6 pp.) Judge erred in dismissing plaintiff s substantial claim — for property damage caused by a tree falling from defendant s property — since there was evidence that tree on defendant s property was untrimmed and partially dead, which created a jury issue as to whether defendant exercised reasonable care in maintaining his property. [Sept. 30, 1996.] PRODUCT LIABILITY 32-3-0138 Pruscino v. Acromed Corp., et al., Law Div. (3 pp.) Doctor — who designed an allegedly defective bone graft plate used in the spine — cannot be granted summary judgment because he was not involved in the chain of distribution as the manufacturer or the seller, as there are fact questions regarding whether the defect was in the original design or in a modification thereof, whether defendant participated in the modification, whether there was negligence or just strict liability, and concerning defendant s duties within the corporate defendant. TORTS — FALSE IMPRISONMENT 36-2-0139 Marcia M. Smith v. Prudential Ins. Co. of America, App. Div. (6 pp.) Summary judgment was properly granted to employer on employee s claim for false imprisonment — arising out of her being interviewed by a security officer regarding an investigation into the theft of a co-worker s credit cards and cash — since the employee never asked to leave the interview, nor did she request that it be terminated. [Oct. 1, 1996.] WORKERS COMPENSATION 39-2-0140 James W. Smart v. Asbesrite Inc., App. Div. (2 pp.) Compensation judge, believing the testimony of respondent s medical expert more credible, found that petitioner had not proved that his Lyme Disease was contracted by a tick bite sustained while engaged in duties for respondent, and the dismissal of the petitioner’s complaint is affirmed. [Sept. 30, 1996.] WORKERS COMPENSATION — TORT CLAIMS ACT — WRONGFUL DISCHARGE 39-2-0141 Charlotte M. Brook v. Jeffrey A. April, et al. v. Hugh Riley, et al., App. Div. (14 pp.) In a legal malpractice case where wrongful discharge plaintiff alleges that her attorneys failed to protect her rights against police department defendants by failing to give proper notice under the Tort Claims Act, the trial court erred in following the holding in Dlugosz v. Fred S. James & Co., 212 N.J. Super. 175 (Law Div. 1986), which is overruled insofar as it bears upon the relationship between N.J.S.A. 34:15-39.1 and the Tort Claims Act, however the trial court s order dismissing the case is affirmed for other reasons. [Sept. 30, 1996.][Approved for publication Sept. 30, 1996.] CRIMINAL LAW AND PROCEDURE — SEARCH WARRANTS 14-3-0142 State v. Alfonse T. Cataldo, Law Div. (13 pp.) The erroneous and extraneous information relating to a building which was contained in search warrant for a clearly described motor vehicle is the type of technical irregularity which the court rules state should not taint the search made pursuant to the warrant, and defendant s motion to suppress is denied. [Approved for publication Sept. 30, 1996.] CRIMINAL LAW AND PROCEDURE — SUPPRESSION OF EVIDENCE 14-2-0143 State v. Bruce Gilliam, App. Div. (11 pp.) Whatever apprehensions the circumstances of the automobile stop may justifiably have aroused — given the defendant s lies and the passenger s nervousness and agitation — they did not authorize the troopers to frisk defendant or the passenger, and drug evidence found was properly suppressed by the trial judge, however, the State correctly contends on appeal that defendant did not have standing to question the pat down of the passenger, and therefore suppression of evidence seized is reversed. [Oct. 1, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-6-0144 In re: Peter J. Libby, et al., Debtors, U.S. Bankruptcy Ct. (18 pp.) (1) Mere use of a tax escrow account alone does not constitute additional collateral sufficient to defeat the protection afforded residential home mortgagees pursuant to section 1322(b)(2) of the Bankruptcy Code. (2) The language on the face of the mortgage document itself controls the finding of additional collateral, despite the fact that no security interest was actually taken in such items. (3) Where language on the face of the mortgage herein provided for the taking of additional security, the residential home mortgagee s claim may be bifurcated on debtors motion into secured and unsecured components pursuant to section 506(a) of the Code, and was not subject to the protection of the anti-modification provision of section 1322(b)(2). [Filed Sept. 19, 1996.][For publication.] CIVIL RIGHTS 46-7-0145 Sean O Hare v. K. Goss, et al., U.S. Dist. Ct. (21 pp.) Where plaintiff alleges various negligence and civil rights violations in his arrest for criminal trespass — for entering onto church property to watch the pre-school children on numerous occasions — since plaintiff stipulated to the existence of probable cause for his arrest in exchange for dismissal of the criminal charges — a stipulation to which he is legally bound — he has undermined every count of his complaint, and defendants are granted summary judgment. [Filed Sept. 20, 1996.] CONTRACTS 11-7-0146 Flavine Intl., Inc. v. PDK Labs, Inc., U.S. Dist. Ct. (10 pp.) In a case where plaintiff seeks payment under contract for the sale of raw pharmaceutical goods, since defendant s contention — that the goods delivered were not those contemplated by the contract, but were illegally imported and relabeled, unapproved, foreign pharmaceutical goods — would form strong opposition to the plaintiff s motion for summary judgment, the court finds that allowing further discovery is necessary to allow defendant to present its opposition, and denies the motion as premature. [Filed Sept. 20, 1996.] EVIDENCE — EXPERTS 19-7-0147 Pat Shea Personnel Agency v. Manpower Temporary Svcs., Inc., U.S. Dist. Ct. (8 pp.) Because plaintiff s expert possesses a specialized knowledge of the personnel services business that may ultimately be helpful to a jury in assessing damages, his testimony is admissible under the liberal standards of Federal Rule of Evidence 702, and since he is uniquely positioned to make an expert determination as to damages to a personnel services agency and potential profit or loss, he is qualified to testify on damages, notwithstanding that he is not an accountant. [Filed Sept. 24, 1996.] THIS WEEK IN THE … Environmentalists whose suit failed to stop dredging at two ports have been awarded $109,992 in legal fees from the government, proving that a plaintiff can lose the war and win the fees. See page 5 of the Sept. 30 Law Journal.

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