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Vol. 4, No. 183 — SEPTEMBER 20, 1996 STATE COURT CASES CONSUMER PROTECTION 09-3-0044 Saida Jiries v. BP Oil, etc., et al., Law Div. (7 pp.) Payment for repair work, alone, does not constitute an “ascertainable loss for purposes of a party maintaining an action under the Consumer Fraud Act, and although defendant clearly violated the Act – - by failing to provide a written estimate of car repairs and failing to obtain a written authorization before making repairs — plaintiff s case fails because she never established at trial by any competent evidence that the repairs made were faulty or not completed. [Approved for publication Sept. 13, 1996.] DEBTOR/CREDITOR — FORECLOSURE — ENTIRE CONTROVERSY 15-2-0045 Anthony R. Simonelli, et al. v. The Money Store, et al., App. Div. (4 pp.) The trial judge correctly dismissed plaintiffs case asserting that defendants failure to properly credit them for interest, principal and taxes caused them to lose title to their property by foreclosure, since all of these issues should have been raised in the foreclosure suit, and are precluded by the entire controversy doctrine. FAMILY LAW 20-2-0046 Joseph Gentile v. Rose Gentile, App. Div. (7 pp.) The trial judge erroneously concluded that plaintiff was entitled to terminate his alimony obligation merely because he had reached the presumptive retirement age of 65 and asserted that his income was limited to the receipt of social security benefits. INSURANCE — AGENCIES — ISSUE PRECLUSION 23-2-0047 Ray J. DeRosa v. Atlantic Mutual Companies, App. Div. (4 pp.) Applying the doctrine of issue preclusion, the trial court correctly granted summary judgment to defendant in plaintiff s action for wrongful termination of its agency agreement, since the decision of the Commissioner of Insurance — that defendant had good cause to terminate the agreement — binds the parties. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0048 Loretta Alford v. Bd. of Review, App. Div. (4 pp.) The evidence supports the finding that claimant was ineligible for additional unemployment benefits because she failed to notify the Dept. of Labor of her intention to enter the Workforce Development Program within the prescribed time limits. PUBLIC ASSISTANCE — MEDICAID — QUALIFYING TRUSTS — INCOMPETENTS 45-4-0049 In re: Matthew Lennon, a Mental Incompetent Chancery Div. (7 pp.) The court denies as illegal guardians motion seeking authorization to amend the terms of incompetent s trust — funded from settlement of a medical malpractice suit — to qualify as a supplemental needs trust so that the trust funds will only be used to meet those needs which cannot be met through any public or private program of financial entitlements, services, or other benefits. [Approved for publication Sept. 13, 1996.] PUBLIC EMPLOYEES 33-2-0050 I/M/O Gerald Dunlap and Town of Morristown, App. Div. (6 pp.) Merit System Board properly determined that prior settlement voluntarily entered into between police officer and town did not mandate the officer s appointment to the next available sergeant position. CRIMINAL LAW AND PROCEDURE 14-2-0051 State v. Michael Ragusa, App. Div. (7 pp.) The presumption of incarceration for first- and second-degree crimes is not overcome because the defendant is a first offender, or because the mitigating factors substantially outweigh the aggravating factors, and the judge erred in concluding that imprisonment was inappropriate in this case where 19-year-old defendant, while intoxicated, drove his car into a utility pole, killing two of his passengers and seriously injuring a third. FEDERAL COURT CASES CIVIL PROCEDURE — QUASHING SUBPOENAS — SECURITIES 07-7-0052 Joseph Flanigan v. Simon Bernstein, et al., U.S. Dist. Ct. (10 pp.) In the interests of judicial economy, the N.J. court (“issuing court ) exercises its discretion and transfers motion to quash subpoena to the Northern District of Illinois (the “transferee court ), the court most familiar with the underlying three-year old securities litigation. [Filed Sept. 11, 1996.] CONTRACTS 11-7-0053 CECG, Inc., etc. v. Magic Software Enterprises, Inc., etc., et al., U.S. Dist. Ct. (18 pp.) In a dispute arising out of a business relationship between plaintiff — a computer consulting firm — and defendant — the manufacturer of a software program utilized by plaintiff — inter alia, plaintiff s breach of contract claims must fail under the statute of frauds, since defendants alleged commitment to provide plaintiff with free unlimited “runtime modules was never written or signed by any agent or broker of defendant. [Filed Sept. 13, 1996.] CORRECTIONS — CIVIL RIGHTS 13-7-0054 Amos Breedlove v. William H. Fauver, et al., U.S. Dist. Ct. (3 pp.) Since inmate claims that prison officials confiscated his copy of interrogatories served upon him, defendants motion to dismiss for inmate s failure to answer those interrogatories is denied without prejudice, and, since certain defendants were never properly served, inmate s motion for default judgment is denied. [Filed Sept. 12, 1996.] JUDICIARY — IMMUNITY — CIVIL RIGHTS 48-7-0055 Robert Jacoby v. Alleged Patrolman J.M. Abbott, et al., U.S. Dist. Ct. (7 pp.) Motion for summary judgment is granted to two defendant judges, since the Freeman plaintiff s allegations against them — that the judges denied his constitutional rights, one by denying his application for a writ of habeas corpus, and the other by expunging his application for the return of his automobile — are premised upon actions taken by each judge while discharging judicial functions over matters within their respective jurisdictions and the claims cannot stand on the basis of judicial immunity. [Filed Sept. 13, 1996.] LABOR AND EMPLOYMENT — DISABILITY INSURANCE — A.D.A. 25-7-0056 Colleen Ford v. Schering-Plough Corp., et al., U.S. Dist. Ct. (10 pp.) The court grants defendants motion to dismiss plaintiff s complaint – - alleging that defendants violated her rights under the ADA because their disability insurance plan terminated long-term disability benefits for mental disabilities after 24 months, while continuing benefits for those with physical disabilities until age 65 — inter alia, because plaintiff does not have standing to bring a Title I claim due to the fact that she is totally disabled and cannot perform the essential functions of any employment positions which she holds or desires, and by definition is therefore not a “qualified individual” under the ADA. [Filed Sept. 12, 1996.] TO ORDER DECISIONS – BY PHONE: 201-642-0075 BY FAX: 201-642-0920 BY E-MAIL: COUNSEL CONNECT NJ Cases will be faxed to you within two business hours of your order. The cover sheet on the faxed decision is your bill. Charges based on rate of $1 per page, minimum $18, plus 6% state sales tax. You are free to duplicate this document within the physical confines of your office. The ALERT is available on COUNSEL CONNECT each day and is archived in New Jersey Libraries. We suggest saving the ALERT in an e-mail folder or as a disk file for future reference. Lecture Series presents Gerald Baker, Esq. New Jersey’s leading authority on automobile insurance, Baker demonstrates how to avoid trial by properly preparing cases for settlement: How Much is the Case Worth? The Preparation, Evaluation & Settlement of a Personal Injury Case Approved by N.J. Board on Trial Attorney Certification for 3.75 hours of credit. CHOOSE FROM THREE CONVENIENT LOCATIONS: Cherry Hill Sat., Oct. 5 Morristown Thurs., Oct. 17 East Brunswick Sat., Nov. 2 For further information, including discounted group rates (5 or more from same firm), please call 201-642-0075, or fax this form to 201-642-0920, with your name and fax number .

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