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Vol. 4, No. 185 — SEPTEMBER 24, 1996 STATE COURT CASES ATTORNEY/ CLIENT 04-2-0064 Geneton, Inc., etc., et al. v. Calton, Inc., etc., et al., App. Div. (6 pp.) Plaintiff s claims arising out of asserted improper dumping of fill and defendant s counterclaim for malicious abuse of process are so intimately intertwined as to preclude reasonable severance, and therefore the trial judge properly disqualified plaintiff s attorney — also plaintiff s effective principal — under R.P.C. 3.7, which prohibits an attorney from acting as an advocate at trial in which the lawyer is likely to be called as a necessary witness. AUTOMOBILES — DRIVER S LICENSE SUSPENSION 05-2-0065 Michael G. Montaina v. Div. of Motor Vehicles, App. Div. (3 pp.) New York s impaired driving statute is sufficiently comparable to New Jersey s definition of driving “while under the influence so as to merit appellant s administrative license suspension in this state, and neither double jeopardy nor cruel and unusual punishment principles are implicated. CIVIL RIGHTS 46-2-0066 Henry Micheliche, Jr. v. Peter Giovine, et al., App. Div. (5 pp.) Because plaintiff s civil rights claims against county employees implicated the validity of his state court conviction, which had not been overturned, expunged, or otherwise invalidated, the trial court properly granted summary judgment to the county employees, since it is not permitted to rule collaterally upon the validity of the criminal conviction. INSURANCE — VERBAL THRESHOLD 23-2-0067 Teresa Jablow v. Alicia Rentals, et al., App. Div. (9 pp.) Since the trial court found sufficient evidence of a fracture to allow the plaintiff s type 4 injury claim to be considered by the jury, it erred in dismissing plaintiff s soft tissue claims for lack of a “substantial impact showing, since these claims should also have been allowed to be considered by the jury, but the error was not prejudicial to plaintiff, since the jury found that plaintiff had not suffered a fracture, and dismissal of the entire case is therefore affirmed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0068 Gary Jones v. Bd. of Review, etc., et al., App. Div. (6 pp.) The Appeals Tribunal, as fact finder, reasonably found that single incident of employee s borrowing a car, with the permission of his supervisor, did not constitute willful, wanton misconduct in connection with his work, and properly held him qualified for unemployment benefits, and the Board of Review erred in reversing such determination, which is reinstated. 25-2-0069 Pascal Dougboh v. Bd. of Review, et al., App. Div. (5 pp.) Appellant was properly held ineligible for additional unemployment benefits during training because, at the time he was discharged, no substantial reduction in work opportunities occurred at the place of employment. LAND USE 26-2-0070 Stanley A. Kober, et al. v. Ho-Ho-Kus Zoning Bd. of Adjustment, etc., App. Div. (4 pp.) Board of Adjustment properly denied plaintiffs application for a bulk variance to enlarge their two- bedroom home to accommodate an elderly, disabled family member, and the proper application of the land use law is not in conflict with state and federal statutes dealing with the rights of disabled or handicapped persons not to be discriminated against. 26-2-0071 Alan J. Marcus, et al. v. Village of Ridgewood, etc., et al., App. Div. (5 pp.) Zoning board s preference for an expanded garage over outdoor vehicle storage promotes “a desirable visual environment,” a designated purpose of the municipal land use law, and this court affirms the trial judge’s determination that the board’s findings in granting expansion variances were not arbitrary, capricious or unreasonable. PHYSICIAN/PATIENT 29-2-0072 Michael Denmon v. Kenneth Brown, M.D., App. Div. (11 pp.) Analyzing the evidence, the court affirms verdict for plaintiff against emergency room physician, the jury reasonably having determined that the doctor’s negligence in failing to properly examine blood test results and by not admitting plaintiff to the hospital increased plaintiff’s risk of harm posed by the preexisting infection by a tick-borne parasite, and that the increased risk was a substantial factor in producing the ultimate result — the loss of plaintiff’s spleen from bacterial infections. WORKERS’ COMPENSATION 39-2-0073 Christina Kulesza v. Great Atlantic & Pacific Tea Company, et al. App. Div. (5 pp.) The court affirms the compensation judge’s ruling, holding that petitioner failed to sustain her burden of proof as to the compensability of a second injury (from falling down stairs in her home) occurring after her first compensable accident (cutting her finger on a slicer at work). FEDERAL COURT CASES ADMIRALTY — INSURANCE 54-7-0074 Kearny Barge Co., Inc. v. Global Ins. Co., et al., U.S. Dist. Ct. (63 pp.) In an insurance coverage action dealing with the damages and expenses incurred in connection with the capsize and salvage of a barge, the court sets forth its findings of fact and conclusions of law, including the findings that the negligence of a barge crewmember was responsible for the casualty, that there was no want of due care on the part of plaintiff barge owner, and that defendant Global — insurer of the barge — owes coverage for the salvage costs and cargo losses. [Filed Sept. 13, 1996.] ANTITRUST 59-7-0075 Farmland Dairies v. Milk Drivers & Dairy Employees Local Union 680, et al., U.S. Dist. Ct. (6 pp.) The court grants plaintiff’s motion to amend antitrust complaint to add treasurer of union — alleging, inter alia, that he participated in continuing acts of conspiracy — since the defendants will not be prejudiced by the amendment, as the new allegations arise from the same circumstances set forth in the original complaint, and there has been no showing that the amendment is motivated by bad faith; however, plaintiff’s motion for costs is denied. [Filed Sept. 13, 1996.] BANKING — FRAUD — DUTY TO DISCLOSE 06-7-0076 Resolution Trust Corp. v. Moskowitz, et al., U.S. Dist. Ct. (13 pp.) Inasmuch as the RTC has based its claims of fraud on individual defendant’s failure to disclose (that he was making payments indirectly to former bank president at the time the bank’s board of directors considered the original loan agreement to defendant’s company) and not on any affirmative misrepresentation, the court finds that the RTC has failed to state a claim for fraud and dismisses that count of the RTC’s complaint for failure to state a cause of action. [Filed Sept. 13, 1996.] LABOR AND EMPLOYMENT — NONMUTUAL COLLATERAL ESTOPPEL DEFENSE 25-7-0077 Robert B. Reich, etc. v. D.C. Wiring, Inc., etc., et al., U.S. Dist. Ct. (7 pp.) In a case where Secretary of Labor sues cable television installer for failing to pay overtime and failing to maintain proper records, the court grants plaintiff’s motion to strike defendants’ affirmative defense of nonmutual collateral estoppel, finding that the U.S. Government cannot be bound by an earlier determination in a separate dispute to which it was a party, but where the party seeking the estoppel in the present case was not a litigant in the earlier dispute. [Filed Sept. 16, 1996.][For publication.] PENSIONS — ERISA 56-7-0078 John Agathos, et al. v. Starlite Motel, U.S. Dist. Ct. (26 pp.) In a case determining employer’s Welfare Fund contribution rate, the court finds that employer, by its course of conduct in paying increased contributions over a period of ten years, acquiesced in the upward modification of the Fund contribution rate from the rate set forth in the collective bargaining agreement, and that the repeated issuance by the Fund of monthly written billing sheets reflecting the increased contribution rate are more than sufficient to meet the requirement that any agreement be in writing under Section 302 (5) (B) of the Labor-Management Relations Act of 1947, as amended. [Filed Sept. 12, 1996.] —END— A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE Plaintiffs suing blood-product manufacturers have scored a victory in state court, one that allows them to pursue recovery under traditional tort law remedies unfettered by federal law and regulations. See page 4 of the Sept. 23 Law Journal.

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