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Vol. 4, No. 175 — SEPTEMBER 10, 1996 STATE COURT CASES DEBTOR/CREDITOR — DEFAULT 15-2-9979 Demark Publications Group, Inc. v. Mara Mooney, App. Div. (4 pp.) Since plaintiff failed to comply with the procedural requirements for the entry of a default judgment — making an ex parte submission of its request to enter default and affidavit for entry of a default judgment — the order denying defendant s motion to vacate the default judgment is reversed. INSURANCE 23-2-9980 Silvio Menzoni, etc. v. Roger W. Morley, et al. v. Cumberland Mutual Fire Ins. Co., et al., App. Div. (10 pp.) Under the circumstances of the case, if insured was negligent at all with respect to his nephew s causing an accident, it was because his acts or omissions were more reasonably within the scope of the risk insured by the homeowner s insurance carrier, than that of his automobile insurer, and therefore homeowner s insurance carrier owed a defense, and was wrongly dismissed from the suit, and auto insurer s motion for summary judgment was wrongly denied, and that decision is reversed. REAL ESTATE — CONDOMINIUMS 34-2-9981 Regency Towers Cond. Assn., Inc., etc. v. Wildwood Sonali Corp., etc., et al., App. Div. (14 pp.) Where defendant unit owners ran a restaurant on the commercial ground floor of a largely residential condominium, and sought to expand the use without obtaining condominium association approval, the trial judge, inter alia, correctly enjoined defendants from putting a liquor license in the commercial unit and enjoined its use as a nightclub. TAXATION 35-2-9982 City of Newark v. Block 2660, Lot 30, Gregory Fields, App. Div. (5 pp.) Trial judge correctly granted summary judgment to municipality in its in rem tax foreclosure action, since the alleged owner/occupier of the land was not entitled to the protection afforded by tax search certificates under N.J.S.A. 54:5-17, since there was no strict compliance with N.J.S.A. 54:5-12, and owner/occupier does not allege facts which show that he acquired “for a valuable consideration an interest in lands … in reliance on the (tax) search.” WORKERS’ COMPENSATION 39-2-9983 Carolee A. Edwards v. Towne Cadillac, Inc., App. Div. (2 pp.) Sufficient credible evidence supports the judge’s finding that respondent’s problems, while reactive to the work environment, were the result of allergies that were not caused by the work and had preexisted her employment, and the order denying petitioner permanent disability benefits is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-9984 State v. Kenneth McClain, App. Div. (44 pp. – includes dissenting and concurring opinion) The court’s instructions to the jury concerning accomplice liability, kidnapping and constructive possession were incorrect and/or incomplete in significant respects, mandating reversal of the convictions. FEDERAL COURT CASES CIVIL RIGHTS 46-7-9985 Carl Vermandere v. John Kelly, et al., U.S. Dist. Ct. (8 pp.) Plaintiff’s claim against police supervisor — alleging that his civil rights were violated when, while he was incarcerated, his home was burglarized by persons under the tutelage of the police — is dismissed on the ground of claim preclusion, since, although the claim against this defendant was not specifically raised in a prior complaint based on the same incident, it should have been. Further, plaintiff does not allege any facts to support an inference that the supervisor had any personal involvement in the alleged wrongs. [Filed Aug. 5, 1996.] CIVIL RIGHTS — JUDICIAL IMMUNITY 46-7-9986 Harlow Zirkind v. Hon. Peter Ciolini, etc., et al., U.S. Dist. Ct. (5 pp.) Judge’s decision to deny plaintiff’s motion to proceed in forma pauperis is a judicial act within the jurisdiction of the court in which the judge sits, and no oral argument was required, therefore the doctrine of judicial immunity precludes recovery in this civil rights case against the judge stemming from his decision to deny the motion, and plaintiff’s complaint is frivolous within the meaning of 28 U.S.C. 1915(d). [Filed Aug. 7, 1996.] INSURANCE — JURISDICTION 23-7-9987 State Farm Ins. v. Chase Manhattan Bank, et al., U.S. Dist. Ct. (5 pp.) Both plaintiff insurer and defendant Canteen Corporation are citizens of N.J., and complete diversity is therefore lacking, therefore the court dismisses the action for lack of jurisdiction. [Filed Aug. 1, 1996.] LABOR AND EMPLOYMENT 25-7-9988 Michael K. Weatheread v. Wallace Computer Services, Inc., et al., U.S. Dist. Ct. (24 pp.) The complaint creates at least an inference of discrimination on the basis of both accident-related disability and age, and therefore defendant’s motion to dismiss count one is denied; however, the balance of the complaint is dismissed, inter alia, since plaintiff has not made out a claim for breach of contract based on the employment manual, his claim for breach of the implied covenant of good faith and fair dealing cannot be invoked without a contract, he has not proven emotional distress to support his claim for intentional/negligent infliction thereof, and he does not identify the contractual relationship which has supposedly been interfered with in his tortious interference claim. [Filed Aug. 7, 1996.] —END— THIS WEEK IN THE … Laura Lapidus, who has known since high school that her life’s work would be something that benefited society, is named legal director of the American Civil Liberties Union in New Jersey. See page 3 of the Sept. 9 Law Journal.

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