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Vol. 4 No. 129 – JULY 8, 1996 STATE COURT CASES ATTORNEYS — FEES 04-2-9497 Iris Green v. Continental Rentals v. Deborah T. Poritz, etc.; Roseann Levine v. Continental Rentals, App. Div. (4 pp.) Since the state fee- shifting statute does not require proportionality between damages recovered and counsel fee awards, and, where the fee requested is disproportionate to the damages recovered, the judge should evaluate not only the damages prospectively recoverable and actually recovered, but also the interest to be vindicated in the context of the statutory objective — where, as here, the judge found that the results obtained “not only resulted in a complete recovery of all monies lost by the two plaintiffs, but extended to others as well” and the case had the effect of regulating the rent-to-own business — such finding, together with the finding that the lodestar was reasonable, justified an award of fees in the amount requested. DEBTOR/CREDITOR 15-2-9498 First Fidelity Bank, N.A., N.J., etc. v. Gregory Chusid, et al., App. Div. (4 pp.) Ordinarily, an order for civil imprisonment must be based on a full evidentiary hearing, but where, as here, the voluminous affidavits and certifications submitted to the judge showed beyond any rational basis for dispute that the defendant had assigned, removed, or disposed of substantial portions of his property with intent to defraud his creditors, the judge did not err in ordering imprisonment without such a hearing. 15-2-9499 Todd A. Morici, Inc. v. Valley National Bank, et al., App. Div. (24 pp.) (1) Since plaintiff’s original turnover motion had been presented to one judge, the subsequent motions for reconsideration and for enforcement of a purported settlement agreement should have been submitted to the same judge unless he was unavailable or the situation was emergent, and (2) the second judge’s order enforcing the terms of the settlement agreement is reversed because it was conditioned upon events that did not occur. 15-2-9500 Citizens First National Bank of N.J. v. Norma Marie Walters, App. Div. (20 pp.) Defendant’s motion to vacate foreclosure judgment was properly denied, since she simply failed to produce sufficient evidence of a conspiracy to thwart her subdivision plans between the bank and adjoining landowner — a member of the bank’s board — to justify proceeding further. EDUCATION — RETIREMENT BENEFITS 16-2-9501 In the Matter of Joseph Fishman, App. Div. (5 pp.) Since the language in N.J.S.A. 18A:66-176 concerning applicants’ qualifications for benefits is mandatory and not permissive, the Director of the Div. of Pensions and Benefits had no authority to waive or relax the qualifications simply because applicant said he was unaware of them, and the decision to deny him those benefits because he did not meet the qualifications is affirmed. FAMILY LAW — TORTS — ENTIRE CONTROVERSY 20-2-9502 Beverly Oliver, et al. v. Louis Ambrose, App. Div. (11 pp. — includes dissent) The fact that plaintiff sought monetary damages for her assault tort claims does not prevent the entire controversy doctrine from requiring her to have filed a counterclaim asserting her torts claims in the custody/visitation suit filed by defendant, since the abuse and assault allegations were germane to the child custody determination and should have been raised therein to avoid protracted, repetitious and fractionalized litigation. INSURANCE — PREJUDGMENT INTEREST — FUND 23-2-9503 Robert J. Knowles v. Susan M. Wilson, et al., App. Div. (7 pp.) Order requiring the Unsatisfied Claim and Judgment Fund to pay prejudgment interest is affirmed, since the Fund is presumptively responsible for paying prejudgment interest included in a judgment pursuant to R. 4:42-11(b), unless there are circumstances –absent in this case — which would make it inequitable to assess such interest, . [Approved for publication Jul. 8, 1996.] INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-9504 Valerie Scotten v. Rutgers Casualty Ins. Co., App. Div. (14 pp.) Once plaintiff established that the available coverage for the undeniably liable tortfeasor was less than her UIM coverage, she made out a prima facie case of entitlement to proceed to UIM arbitration, and insurer’s claim that plaintiff’s UIM claim is barred because she did not exhaust all available liability coverage of the tortfeasor in settling with him is without merit, as is insurer’s claim that UIM may not be pursued because plaintiff did not pursue a potential dram shop claim against tavern which served the tortfeasor. INSURANCE — VERBAL THRESHOLD 23-2-9505 Sheryl Smith, et al. v. Raft Brown, et al., App. Div. (4 pp.) Under the recent holding in Koff v. Carrubba, the plaintiff in this case, who was injured in an accident in her livery vehicle (insured under a commercial auto policy) was subject to the verbal threshold because she also maintained an “automobile” as defined by N.J.S.A. 39:6A-2, registered and insured pursuant to a policy in which she had selected the verbal threshold option. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9506 William F. Brady, Jr., et al. v. Bd. of Review, et al., App. Div. (19 pp.) An employee is not disqualified from receiving unemployment benefits when he, after considering the options, believes he has no choice but to accept an early retirement proposal in the face of a realistic fear of layoff, and therefore, since the employer’s communications to the plaintiff auto workers here that the plant was closing were unequivocal and unyielding — despite the fact that the plant never did close — plaintiffs were improperly held ineligible for benefits as having chosen to terminate their employment voluntarily. 25-2-9507 Edward C. Mack, III v. Bd. of Review, et al., App. Div. (4 pp.) Employee who left work to take early retirement was properly found to be ineligible for unemployment benefits since he presented insufficient evidence that his fears of layoff were realistic. NEGLIGENCE 31-2-9507 Mildre J. Paulino, et al. v. Frances M. Lonsky, et al., App. Div. (7 pp.) Plaintiff’s negligence suit was properly dismissed, since, although plaintiff has made a prima facie showing that removal of trees from the grass strip between the sidewalk and the street resulted in damage to the sidewalk, which was badly repaired, (1) there was nothing in the record to imply that either the town defendant or the abutting property owner defendant had any responsibility for the repairs, and (2) the plaintiff’s attorney’s letter to the town did not satisfy the notice requirements under the Tort Claims Act. 31-2-9508 Madeline Berman, et al. v. Newark Bd. of Education, et al., App. Div. (13 pp.) The trial court properly held that the Board was not liable for the injuries sustained by plaintiff as a result of the assault upon her at the entrance to school building by an unidentified assailant, correctly finding that the fact that the school locked its front door did not constitute a “dangerous condition,” and the Board did not owe an obligation to plaintiff to provide additional security. 31-2-9509 Roberta King v. General Elevator Co., Inc., et al., App. Div. (11 pp.) In a case where plaintiff fell when an elevator door failed to open and “level” properly with the floor, although the trial judge accepted plaintiff’s contention that the elevator door had malfunctioned, the trial judge properly (1) determined that res ipsa loquitur did not apply and (2) excluded the opinion of plaintiff’s expert on the elevator’s malfunction as a net opinion since it was not based on performance standards or facts. 31-2-9510 Thomas Mantone, et al. v. K-Mart Corp., App. Div. (7 pp.) Where plaintiff was injured on a post placed between checkout counters at defendant’s store, although there is no basis to reverse the liability verdict in plaintiff’s favor, the trial court erred in permitting testimony regarding plaintiff’s sexual dysfunction to go before the jury, since there was no evidence of causation between the accident and the dysfunction, and a new damages trial is required. REAL ESTATE 34-2-9511 Margaret H. Roche v. Annaniah Gifford, et al., App. Div. (6 pp.) The plaintiff, as holder of a tax sale certificate, did not acquire title to the land, and the mere naming of plaintiff as a defendant in a tax sale foreclosure did not confer any ownership rights on her, therefore her claim of title was properly rejected. A Daily Reporter of New Jersey Court Decisions

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