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Vol. 4 No. 131 – JULY 10, 1996 STATE COURT CASES CONTRACTS 11-2-9518 PNFC v. Richard A. Shaw Sr., App. Div. (4 pp.) Defendant s third-party fraud claim in connection with his automobile purchase was properly dismissed, since his own deposition testimony, coupled with the express terms of the vehicle purchase agreement he signed, established that his third-party fraud claim consisted of alleged oral representations that contradict the agreement’s express terms. CORRECTIONS 13-2-9519 John McNeill v. Dep’t of Corrections, App. Div. (4 pp.) Evidence supported determination that inmate had violated prison rules by refusing to perform assigned work, and 30-day loss of privileges imposed is affirmed. 13-2-9520 Edmund Salkowski v. N.J. Dept. of Corrections, App. Div. (3 pp.) Correction officer was properly removed from his position for conduct unbecoming a public employee based on his involvement with a drug transaction. EDUCATION 16-2-9521 In the Matter of the Tenure Hearing of R. Scott McIntyre, etc., App. Div. (5 pp.) Education commissioner, although agreeing with the ALJ that teacher s conduct in possessing marijuana was unbecoming, had the authority to reject the ALJ s recommendation of tenure forfeiture as the penalty, and the commissioner s decision that teacher be dismissed is affirmed. ENVIRONMENT 17-2-9522 David Rivkin, et al. v. N.J.D.E.P., App. Div. (12 pp.) By conceding that their proposed dock project violated the regulatory standards of the Rules on Coastal Zone Management, shellfish beds policy, the petitioners disposed of all issues within the jurisdiction of the OAL and the DEP, and, as a result, neither the OAL nor the DEP abused its discretion when it dismissed the petitioners administrative complaint without fact-finding regarding their constitutional claims. FAMILY LAW — CUSTODY 20-2-9523 Robert McAnally v. Linda Stillman Delancey, App. Div. (7 pp.) Judge correctly denied defendant s motion to change children’s custody to defendant from plaintiff without a plenary hearing, since defendant did not make out a prima facie case of changed circumstances sufficient to warrant such a hearing. HEALTH 22-2-9524 Monmouth Medical Center v. Leonard Fishman, Esq., etc., et al., App. Div. (6 pp.) Court affirms the actions of the Department of Human Services — in plaintiff s suit disputing the eligibility calculations used to determine subsidies to hospitals that serve a disproportionate share of low-income persons — since monies have already been distributed to eligible hospitals for prior years, and since eligibility thereafter will be calculated using current data due to recent legislative changes, the court recognizes the commissioner s discretionary expertise and concludes that the department’s actions in responding to plaintiff s claims were not so arbitrary, unreasonable or capricious as to require retroactive relief which would require hospitals that received subsidies in prior years to return part or all of that money to DHS INSURANCE 23-2-9525 Carol Mazza, et al. v. Allstate Ins. Co., etc., et al., App. Div. (7 pp.) The record supports the judge s decision that carriers properly rescinded insureds policies and rebated their premiums after learning that the insureds falsely represented New Jersey as their domicile, and the trial judge s finding that the insureds were New York residents, and that their New Jersey rental home was only seasonal, is affirmed. LABOR AND EMPLOYMENT 25-2-9526 Janet Rushmore Smith v. Nordstrom Inc., et al., App. Div. (8 pp.) Plaintiff s employer — which had an established and well-publicized policy against sexual harassment and took prompt, effective action when advised of supervisor s misconduct — is not vicariously liable for the acts of the supervisor because he was not acting within the scope of his employment in creating the hostile work environment that was the subject of the complaint. LANDLORD/TENANT — MOBILE HOME PARKS 27-2-9527 Javdeck Inc., etc. v. Gerald Ciani, et al., App. Div. (7 pp.) The trial judge erred in using Mt. Laurel decisions to determine that plaintiff s prohibition against subletting discriminated against transients and was contrary to public policy, and ruling that defendants tenants could not be evicted, and matter is remanded for further proceedings to determine whether the prohibition is an unreasonable rule or regulation under the summary dispossess law. NEGLIGENCE 31-2-9528 Laura Cippolone v. Super Fresh Food Market, et al., App. Div. (9 pp.) In a case involving a slip and fall on sugar in a supermarket aisle, the trial judge properly declined plaintiff s request to give a non-notice charge since, under the circumstances of this case, there was insufficient evidence to show a reasonable probability that there would be recurring incidents of sugar on the floor, or the creation of a dangerous condition, or that the general premises’ condition was of such a nature that would justify the elimination of the need to prove actual or constructive notice. 31-2-9529 Roberta Van Kline, etc., et al. v. Donald F. Phelan, etc., et al. v. Darnell B. Dozier, App. Div. (15 pp.) In dismissing a complaint brought by survivors of woman killed by a man against whom she had procured a temporary restraining order — alleging that the defendants’ negligence in not transmitting and enforcing the TRO directly proximately caused the death — motion judge correctly concluded that, although none of the defendants was judicially immune or quasi-immune from suit for the failure to act, they were immune as law enforcement officers under the Prevention of Domestic Violence Act of 1990, N.J.S.A. 2C:25-17, et seq., and under the Tort Claims Act, all court personnel, and derivatively the county, were immune as well. 31-1-9530 Joseph Prevratil, et al. v. George Mohr, et al., Supreme Ct. (53 pp. — includes dissent) The entire controversy doctrine applies to actions arising out of automobile accident cases, and litigants currently involved in negligence litigation shall have time to make application to assert affirmative claims. In all other cases, litigants in automobile accident cases must assert any affirmative claims in the course of a single transaction. PHYSICIAN/PATIENT 29-2-9531 Ellen C. Oberly, etc. v. Norman E. Brown, et al., App. Div. (7 pp.) Since the verdict sheet was inconsistent with the charge and may have caused juror confusion which could have contaminated the entire verdict, the verdict must be set aside and the matter remanded for retrial on all issues. REAL ESTATE 34-2-9532 Paul St. James, etc. v. Cornelius D. Sullivan, et al., App. Div. (5 pp.) There was adequate evidence to support the court s finding that plaintiff, as buyer of campground, was fully informed and advised of the campsites’ conditions, the utilities servicing them, and the setup with respect to septic tanks, sewer lines, and “honey dippers,” therefore plaintiff s complaint alleging fraud and misrepresentation was properly dismissed. SECURITIES 50-2-9533 Robert J. Schmollinger v. Merrill Lynch, Pierce, Fenner & Smith Inc., et al., App. Div. (8 pp.) The judge correctly dismissed plaintiff s state court action — alleging that defendants fraudulently induced him to make certain investments — noting that the parties had agreed that federal law governed, and that federal law mandated the arbitration of the claims, which, under the terms of the arbitration agreement, were time-barred. CRIMINAL LAW AND PROCEDURE 14-1-9534 State v. Charles E. Gerns, Supreme Ct. (26 pp.) It is neither arbitrary nor capricious for a prosecutor to base his or her decision to recommend a waiver of the mandatory sentence required by N.J.S.A. 2C:35-7 on the value of the defendant’s cooperation. 14-1-9535 State v. Oscar Lee Kirk, Supreme Ct. (24 pp.) Defendant failed to establish by clear and convincing evidence that he was entitled to a waiver of an extended-term sentence, therefore, the trial court properly exercised its discretion in finding that the prosecutor did not act arbitrarily in declining to waive imposition of an extended-term sentence. A Daily Reporter of New Jersey Court Decisions

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