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Vol. 4, No. 186 — SEPTEMBER 25, 1996 STATE COURT CASES EVIDENCE — PSYCHOLOGY — EXPERTS 19-2-0079 Cynthia Eckert v. Rumsey Park Associates, et al., App. Div. (9 pp.) The trial judge committed reversible error by not allowing the jury to have, either on plaintiff s direct case or in rebuttal to defense psychiatric testimony, the de bene esse deposition of a licensed psychologist who treated plaintiff, since the psychologist did state, within the required degree of reliability, that plaintiff s psychological disorders were caused by her falls. [Approved for publication Sept. 25, 1996.] FAIR HOUSING 41-3-0080 Samaritan Center, Inc., et al. v. The Borough of Englishtown, et al., Law Div. (30 pp.) Even in the absence of pre-existing co-operation or an inter-municipal agreement, every municipality, whether developing or developed, has an obligation to facilitate, if not assist, the regional goal of providing realistic housing opportunities for low- and moderate-income people in a cost-effective manner, and the court will enter an order requiring Englishtown to grant plaintiffs requested sewer and water connections, subject to certain conditions, despite the fact that plaintiffs facilities will be located in a different municipality. [Approved for publication Sept. 23, 1996.] FAMILY LAW 20-2-0081 Michael A. Plesko v. Marguerite S. Plesko, etc., App. Div. (9 pp.) The court affirms trial judge s denial of plaintiff s application for a reduction of child support, since plaintiff s sole argument below was that his daughter had been emancipated, which was properly rejected, and the court on appeal will not entertain plaintiff s new “changed circumstances arguments. 20-2-0082 Suzanne M. Smith v. Raymond W. Smith, App. Div. (4 pp.) There is no dispute that plaintiff bargained for shorter-term, higher alimony out of concern that defendant might ultimately lose his job due to what plaintiff considered excessive consumption of alcoholic beverages, and, once alimony terminated, judge properly concluded that plaintiff failed to show a change of circumstances sufficient to modify the agreement, which contained compensating trade-offs. INSURANCE — U.I.M. — INTEREST 23-2-0083 Marion Basile v. The Travelers Indemnity Co., etc., App. Div. (6 pp.) Arbitrators had the authority to deny plaintiff s motion to modify her underinsured motorist award to include pre-award interest, and their decision is affirmed. LANDLORD/TENANT 27-2-0084 George Sangiuliano v. Bonnie Washington, App. Div. (5 pp.) Judgment for landlord is reversed, since the judge failed to make the required findings of fact and conclusions of law dealing with the necessity for and reasonableness of claimed repair expenses, whether a constructive eviction had occurred, and whether N.J.S.A. 46:8-21.1 (dealing with security deposits) had been violated. NEGLIGENCE — TORT CLAIMS ACT 31-2-0085 Kevin Patterson v. James R. Bush, et al., App. Div. (5 pp.) Since nothing in the Tort Claims Act requires a claimant to establish medical causality as part of a Notice of Claim, the fact that plaintiff had not received — within the 90-day claim period — medical reports establishing a causal relationship between his retinal detachments and his motor vehicle accident with bus, was not sufficient to establish “extraordinary circumstances required to relax the 90-day filing requirement, and motion to file late claim was properly denied. REAL ESTATE 34-2-0086 Paul Kreder, et al. v. Robin Hill II, Inc., App. Div. (9 pp.) In buyer-plaintiffs action against seller — for breach of building contract for the construction of a custom-built residence — since the plain language of plaintiffs “Pre-Purchase Final Commitment indicates that it was a conditional preface to obtaining a binding mortgage commitment, the trial judge did not err when she (1) permitted testimony by a defense witness that plaintiff s mortgage commitment did not satisfy the mortgage contingency requirement of the contract, (2) permitted the jury to determine if the commitment satisfied the mortgage contingency clause of the contract, or (3) allowed the jury to determine whether defendant had waived its right to cancel the contract. TAXATION 35-5-0087 Hull Junction Holding Corp. v. Princeton Borough; PSN Partners LP v. Princeton Borough, Tax Ct. (71 pp.) (1) A large multi-use property, which includes offices, retail stores, a parking garage, apartments and right to build additional residential units, are to be valued by components using the income approach for the office area, retail area, parking garage and apartments and the sales comparison approach for the rights to build. (2) Ellwood Approach is rejected. (3) Sale of subject by foreclosing mortgagee is unreliable indicator of value. (4) Separate assessment line items created by the tax assessor as an accommodation to property owner disregarded in applying Chapter 123 where the property constituted a single tax lot. [Approved for publication.] 35-5-0088 Newark City v. Clifton City, Tax Ct. (5 pp.) Easement of Newark water supply system over property in Clifton, permitting Newark to transport water through a pipeline to its customers, is not part of “lands used for public water supply purposes subject to local property taxation under N.J.S.A. 54:4-3.3, but is “other property used for those purposes exempt from local property taxation under the same statute. [Approved for publication.] FEDERAL COURT CASES BANKRUPTCY — ADMINISTRATIVE CLAIMS 42-6-0089 In re: Molnar Bros., etc., Debtor; In re: Steven Molnar, et al., Debtors; In re: Andrew Molnar, et al., Debtors, U.S. Bankruptcy Ct. (14 pp.) Claimant s sale of seed and herbicide products to debtors aided corn crop, although much of the crop failed, and as the crop was utilized to feed the livestock, an essential activity of maintaining the estate, the resulting claim warrants administrative status. [Filed Sept. 13, 1996.] BANKRUPTCY — VALUATION OF SECURED CLAIMS 42-7-0090 In re: Ethel Y. Maddox, Debtor; In re: Alice M. Ellis, Debtor; In re: Andrea Barrett, Debtor, U.S. Dist. Ct. (26 pp.) Establishing the appropriate standard by which to measure the value of the allowed secured claim of a creditor holding a security interest in a motor vehicle owned by a debtor in a Chapter 13 proceeding, where the vehicle is to be retained and used by the debtor during the term of the plan, and the debtor seeks confirmation of the plan under the “cram down provisions of 11 U.S.C. 1125(a)(5)(B)(I) and (ii), the court affirms the Bankruptcy Court s order holding that the value is the wholesale value of each vehicle. [Filed Sept. 19, 1996.][For publication.] CIVIL RIGHTS — “STATE-CREATED DANGER THEORY 46-8-0091 Samantha Kneipp, etc., et al. v. Wesley Tedder, etc., et al., Third Cir. (43 pp.) Under the particular circumstances of this case — where police intercepted couple on their way home, and released husband, but stayed with inebriated wife, later releasing her, after which she was severely injured — the court holds that the state-created danger theory is a viable mechanism for establishing a constitutional claim under 42 U.S.C. 1983, and that the evidence here was sufficient to raise a triable issue of fact as to whether the police officers affirmatively placed the wife in a position of danger when they left her alone in her condition. [FiledSept. 18, 1996.] INTELLECTUAL PROPERTY 53-7-0092 Genevieve s, Inc. v. Genevieve s Gift Wrap Sales, U.S. Dist. Ct. (25 pp.) (1) Defendant has not produced any evidence to demonstrate that it used “Genevieve s mark to sell chocolates in a market remote from plaintiff s, and summary judgment is therefore granted to plaintiff on its trademark infringement claim under Section 32 of the Lanham Act as to defendant s 1993-4 promotion of chocolates, however, (2) both parties motions for summary judgment are denied as to claims made under that section and section 43(a) of the Act — providing a cause of action for infringement of unregistered trademarks — since neither party has established beyond genuine dispute the plaintiff s ownership or non-ownership of the “Genevieve s” mark for gift items such as wrapping paper, cards, and ribbons. [Filed Sept. 16, 1996.] LABOR AND EMPLOYMENT — L.A.D. — MOTION FOR REARGUMENT 25-7-0093 Barbara Morris, et al. v. Siemens Components, Inc., et al., U.S. Dist. Ct. (7 pp.) Plaintiff’s motion for reargument of that portion of court’s order dismissing her L.A.D. claims on the grounds of judicial estoppel is denied, since it is untimely, and even if it were not, plaintiff’s claim would be barred by the fact that she never alleged that she was capable of performing her job at the time she was discharged. [Filed Sept. 20, 1996.][For publication.][For prior decision, also approved for publication, see DDS No. 25-7-9307 in the Alert dated June 20, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE One of the attorneys charged with ethical violations for soliciting clients after the Edison gas pipeline blast could be looking at a suspension, but the Disciplinary Review Board seems ready to let a firm and three other accused lawyers off the hook. See page 5 of the Sept. 23 Law Journal.

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