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Vol. 4, No. 187 — SEPTEMBER 26, 1996 STATE COURT CASES CONTRACTS — ENVIRONMENT 11-2-0094 East Penn Sanitation, Inc. v. Grinnell Haulers, Inc., et al., App. Div. (30 pp.) Judgment in plaintiff s favor is reversed since (1) the Sussex County Municipal Utilities Authority was not subject to tort liability for its actions relating to the solid waste disposal contract with plaintiff because a party cannot tortiously interfere with its own contract, and (2) because plaintiff did not present any evidence which would support a jury finding that the SCMUA breached the contract. Plaintiff s judgment against competitive bidder for tortious interference is also reversed, since the competitor merely conveyed truthful information to the SCMUA and freeholders regarding plaintiff s lack of the licenses required to perform a phase of the contract, which communication cannot form the basis for a finding of the “malice required to support the judgment. [Approved for publication Sept. 26, 1996.] DEBTOR/CREDITOR — FORECLOSURE — PRIORITIES 15-2-0095 Lakeland Savings Bank v. Jefferson Lumber and Millwork Corp., etc., et al., App. Div. (6 pp.) Judge correctly ruled that defendant s lien was superior to plaintiff s mortgage, finding that debtor incurred a corporate, not personal debt, when executing defendant s mortgage; statute of limitations under N.J.S.A. 2A:14-6 was tolled when debtor made a payment on the debt within 20 years of the commencement of the foreclosure suit. FAMILY LAW 20-2-0096 Maryann J. Santiago v. Angel Santiago, App. Div. (6 pp.) Judge correctly denied defendant s request for expanded visitation upon defendant s failure to submit reliable evidence regarding his ability to control his aggressive impulses, the record amply supporting the judge s finding that two letters submitted were not sufficient in that regard. INSURANCE — INDEMNIFICATION — FEES — ARBITRATION 23-2-0097 Int l. Fidelity Ins. Co. v. Robert Jones, et al., App. Div. (5 pp.) Fee arbitration is not mandatory in all circumstances, and the non-attorney plaintiff was not obligated to give defendants pre- action notice of its intent to sue for legal fees, and it was therefore error for the judge to dismiss plaintiff s action for failure to give such notice. [Approved for publication Sept. 26, 1996.] INSURANCE — UNINSURED MOTORIST COVERAGE — ARBITRATION 23-2-0098 Material Damage Adjustment Corp., etc. v. The N.J. Property-Liability Ins. Guaranty Assn., App. Div. (10 pp.) This suit to compel the PLIG to participate in arbitration is not, as the judge found, an attempt to recover an amount as a subrogation recovery or “otherwise, but concerns resolution of a coverage question not barred by N.J.S.A. 17:30A-5d or the asserted solvency of injured party s insurance carrier, and dismissal of suit is reversed. [Approved for publication Sept. 26, 1996.] LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-2-0099 Veronica Lyons v. Middlesex Cy. Bd. of Social Services, App. Div. (8 pp.) Although judge erred in not considering plaintiff s one-day late opposition to defendant s motion for summary judgment, the error was not prejudicial because, on the merits, plaintiff s allegations are insufficient to support a finding of age-related abusive and hostile treatment that was severe or pervasive enough for a reasonable person to believe that the conditions of her employment had been altered. LABOR AND EMPLOYMENT — HANDICAP DISCRIMINATION 25-2-0100 Randolph Miller v. U.S. Bronze Powders, Inc., App. Div. (21 pp.) Even if plaintiff is not precluded by his arbitration procedure under the collective bargaining agreement, he cannot recover on his handicap discrimination suit because the proofs show that plaintiff was not capable of performing the duties of his job at the time in question without reasonable risk of harm, and he has thus failed to make out a prima facie case. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION — EVIDENCE 25-2-0101 Dorothy Curry-Ford v. Dept. of Human Services, etc., et al., App. Div. (11 pp.) In being called upon to resolve a close question of how to deal appropriately with an apparent discovery defalcation by defendants, it was a valid discretionary exercise for the judge to declare a mistrial; however, he went too far in effectively precluding the defendants from placing the credibility of the plaintiff s key witness into question, and the matter must be retried. MUNICIPAL LAW — POLICE 30-2-0102 Mitchell Fenton v. Twp. of Springfield, App. Div. (4 pp.) Record adequately supports trial judge s finding that police officer violated reporting requirement — when he left convention due to his wife s illness, and failed to report to work for the remainder of the convention period — and reduced penalty of one-day suspension is reasonable under the circumstances, as is mandatory one-point loss of seniority. PRODUCT LIABILITY 32-2-0103 Peter Lewis v. American Cyanamid Co., et al., App. Div. (36 pp.) In a case where plaintiff was burned when a gas pilot ignited fumes from defendant s defogger product, inter alia, (1) the judge s ruling that plaintiff s claims based on inadequate labeling are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act is affirmed, (2) the judge erred in ruling that plaintiff s conduct in disregard of label warnings was the sole proximate cause of his injury, and therefore a bar to his claim, (3) trial court erred in entering judgment notwithstanding the verdict on the ground that the defogger was not defective, and (4) the court s instructions on damages did not adequately focus the attention of the jury on plaintiff s possible future damages, and were clearly capable of producing an unjust result; therefore, case is remanded for retrial on the issue of comparative negligence and on the quantum of damages. [Approved for publication Sept. 26, 1996.] FEDERAL COURT CASES ATTORNEY/CLIENT — DEFAULT 04-7-0104 Resolution Trust Corp., etc. v. Barnes, McGhee, et al., U.S. Dist. Ct. (29 pp.) In FDIC s legal malpractice suit alleging that law firm mishandled failed bank s tax refund assignment, (1) the behavior of the law firm in answering three weeks late does not rise to the level of wilfulness as to warrant the harsh sanction of default, especially in light of the $3,079,933 judgment award sought by the FDIC, and default is vacated, and (2) while the defaulting defendants noncompliance with scheduling and discovery orders is not to be condoned, the behavior falls short of the standard of wilfulness or callous disregard which would justify the last resort sanction of dismissal, and FDIC s motion for judgment for default pursuant to R. 37(b)(2)(C) is denied. [Filed Sept. 17, 1996.] CIVIL RIGHTS 46-7-0105 Plaze H. Meadows v. Robert Lipscher, etc., et al., U.S. Dist. Ct. (5 pp.) Plaintiff, in alleging that defendants, by instituting an informal policy to circumvent court rules, have conspired to deprive him of his constitutional right to file a petition for post-conviction relief, has adequately pled a cause of action for conspiratorial deprivation of constitutional rights under Section 1983, and defendants motion to dismiss is denied. [Filed Sept. 18, 1996.] 46-7-0106 Eric Kelley v. Passaic Cy. Jail, et al., U.S. Dist. Ct. (10 pp.) Defendants motion to dismiss inmate s “cruel and unusual punishment claims is granted, inter alia, since inmate has not shown that the disputed “shake downs” were conducted for any other reason than to maintain institutional security, nor has he shown that excessive force was used, and any loss to his personalty arose from inactionable negligence. [Filed Sept. 16, 1996.] FAIR HOUSING 41-7-0107 Mary Ford, et al. v. Brooks-Sloate Terrace Cooperative Assn., Inc., et al., U.S. Dist. Ct. (16 pp.) The court grants plaintiffs’ motion for partial summary judgment and a mandatory final injunction requiring defendants to sell to the plaintiffs certain real property, since plaintiffs have proved that defendants discriminated against them in refusing to sell them the property on the basis of handicap. [Filed Sept. 19, 1996.] FAMILY LAW — R.I.C.O. 20-7-0108 Susan L. Suessmann, et al. v. James R. Suessmann, et al., U.S. Dist. Ct. (5 pp.) In an action wherein wife sues former husband, his accounting firm, and various of his associates, alleging that the defendants all conspired to undervalue her husband’s accounting firm to deprive her of her fair share of equitable distribution in divorce proceedings, the court denies husband’s motion to dismiss without prejudice, ordering plaintiffs to amend their complaint to submit a RICO case statement containing details of the purported RICO claims. [Filed Sept. 16, 1996.] A Daily Reporter of New Jersey Court Decisions NEXT WEEK IN THE A settlement of at least $410 million between policyholders and Prudential Insurance Co. may still hit some bumps. The judge has to certify the class and states have to sign off on the agreement. See page 1 of the Sept. 30 Law Journal.

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