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Vol. 4 No. 125 – JULY 1, 1996 STATE COURT CASES CIVIL PROCEDURE 07-2-9434 David Smith v. David Sheridan, et al. v. Karianne Korejko, App. Div. (3 pp.) Where default had been entered against defendant for failure to appear at trial, trial court correctly entered order vacating default contingent upon defendant’s paying counsel fees to the two attorneys who appeared on the scheduled trial date; defense counsel’s argument that imposition of the fee award was inappropriate because of a lack of professional courtesy from plaintiff’s and co-defendant’s counsel is an attempt to improperly cast accountability for failure to appear at trial on persons other than the responsible party, i.e. the defense attorney. CONSTRUCTION — LIENS 43-3-9435 Mansion Supply Co., Inc. v. Ashok R. Bapat, et al., Law Div. (8 pp.) In analyzing the statutory time limits set forth in the N.J. Construct Lien Law, N.J.S.A. 2A:44A-1, as they relate to residential construction contracts, the court holds that arbitrator erred in ruling that filing of lien claim contemporaneously with a timely filing of a Notice of Unpaid Balance invalidated the lien claim. Residential lien claim process may take up to, but not exceed, 130 days. [Approved for publication Jun. 26, 1996.] CONTRACTS — FRAUD 11-2-9436 Washburn S. Oberwager, et al. v. Coburn Corp., et al., App. Div. (8 pp.) Where plaintiffs had contracted to purchase business with defendant’s son, but later were unable to complete the transaction allegedly due to son’s drug habit and bank’s refusal to finance the project, and where plaintiffs then sued defendant for fraud for failing to disclose his son’s cocaine habit, trial court properly granted summary judgment to defendant because plaintiffs failed to present any competent evidence that his delay in disclosing his son’s cocaine use was the proximate cause of their failure to acquire the corporation. FAMILY LAW — DOMESTIC VIOLENCE 20-4-9437 C.O. v. J.O., Chancery Div. (7 pp.) Since the domestic violence restraining order between the parties had been dismissed on condition that defendant attend counseling, the restraining order may be reinstated, even without a new act of violence, based upon defendant’s failure to keep his promise to attend the counseling. [Approved for publication Jun. 26, 1996.] INSURANCE — BUSINESS RISK EXCLUSIONS 23-2-9438 Oxford Textile, Inc. v. Royal Ins. Co. of America, et al., App. Div. (11 pp.) Judge properly dismissed textile company’s coverage suit for losses occasioned by its negligent dyeing of fabric used in apparel, since the loss was clearly excluded under two “business risk” exclusions in the insurance policy. INSURANCE — P.I.P. 23-3-9439 CSC Ins. Svcs., etc. v. Ida Graves, Law Div. (8 pp.) Interpreting form language regarding PIP benefits — excluding coverage for vehicles used to carry persons or property for a fee — the court notes that the words are not meant to be taken literally but rather to mean the same as used as a public or livery conveyance in N.J.S.A. 39:6A-2(a); the test is whether the vehicle was held out to the public for hire, and therefore, PIP coverage exists here for driver and passengers when the insured was transporting day care customers in her personal passenger van. [Approved for publication Jun. 26, 1996.] LABOR/EMPLOYMENT — L.A.D. — AGE DISCRIMINATION 25-2-9440 George T. Holsman v. The McGraw Hill Companies, Inc., App. Div. (30 pp.) (1) Court correctly applied the doctrine of equitable estoppel and held that plaintiff’s counsel could not object to judge’s extension of time for defendant to move for a new trial, where defendant had relied on representations made by the court and plaintiff’s attorney that there would be no objection. (2) Under the circumstances, evidence establishes a prima facie case of age discrimination, despite the fact that plaintiff never formally applied for the position in question. (3) It was not error for the judge to admit the employee handbooks and manual into evidence. (4) Although it was error for the judge to admit some of plaintiff’s statistical evidence, as well as certain hearsay testimony, the errors did not have the capacity to affect the jury’s determination. LANDLORD/TENANT — COOPERATIVE APARTMENTS 27-2-9441 Robert Kagel, et al. v. Mediterranean Towers West Owners, Inc., et al., App. Div. (9 pp.) Judge correctly found that defendant had breached covenant of quiet enjoyment contained in parties’ proprietary lease, but the award for both diminution in the value of plaintiffs’ shares and the return of rent/maintenance charges is unreasonable as it gives plaintiffs a double recovery, when alternative damages would be appropriate. NEGLIGENCE — AUTOMOBILES 31-2-9442 Honorio Cruz, et al. v. Francis J. Sweeney, App. Div. (7 pp.) In automobile negligence action, where plaintiff, a surgeon, was awarded $100,000, the trial court correctly denied plaintiffs’ motion for new trial based on the evidence presented, and the jury’s assessment of the credibility of the witnesses, concluding that, while the amount of the award was low, there was not a miscarriage of justice under the law requiring a new trial. NEGLIGENCE — RESPONDEAT SUPERIOR 31-2-9443 Michael Bollettiero v. Ralph R. Seavey v. Hardees Food Systems, Inc., App. Div. (4 pp.) Because defendant employee was involved in an auto accident on his way home from a required employment seminar, the judge correctly recognized that the case against the defendant employer depended upon a determination of whether the employee was acting within the scope of his employment at the time of the accident, but since the judge neglected to specifically define the term “scope of employment” for the jury, reversal is required. PARENT/CHILD 28-2-9444 N.J. D.Y.F.S. v. B.G.S., In the Matter of the Guardianship of M.A.S., a Minor, App. Div. (20 pp.) There is overwhelming evidence supporting the propriety of the court’s order terminating birth mother’s parental rights to child; however, the conditions imposed in that order permitting the birth mother post- termination visitation and notification to her of adoption are stricken since they are in contravention of applicable law. [Approved for publication Jul 1, 1996.] PUBLIC RECORDS — HOUSING — RIGHT TO KNOW LAW Now on Counsel Connect 52-2-9445 Lakewood Residents Assn., Inc. v. Lakewood Housing Authority, et al.; Lakewood Residents Assn., Inc. v. Lakewood Twp. Rental Assistance Program, et al., App. Div. (30 pp. — includes the 10 pp. App. Div. opinion as well as the 20 pp. Law Div. opinion) Judge correctly determined that Housing Assistance Contracts were subject to disclosure under the Right to Know Law, provided that specific information pertaining to the identity of the tenants and their financial matters was redacted. [Approved for publication Jul 1, 1996.] REAL ESTATE — EASEMENTS 34-2-9446 William C. Dreyer, Sr. v. Christian Blake, et al. v. Lewis Petty, Esq., App. Div. (6 pp.) Since the certifications submitted in connection with plaintiff’s motion for summary judgment raised disputed material issues of fact regarding extinguishment or abandonment of the subject easement and access to the easement area during the period in question, summary judgment should not have been granted declaring the continuing validity of the easement. CRIMINAL LAW AND PROCEDURE 14-2-9447 State v. Darrell Dayton, App. Div. (20 pp.) Although the court finds that defense counsel should have moved to be relieved as counsel earlier — based upon the fact that he learned important information and might have to testify on behalf of his client — it need not reach the issue of whether counsel’s failure to move earlier justified the judge’s denial of the motion to withdraw, or whether the denial itself warranted reversal, because, in light of the additional preclusion of the testimony of defendant’s girlfriend, the totality of the proofs aggregate to warrant reversal. [Approved for publication Jul 1, 1996.] CRIMINAL LAW/PROCEDURE — JUVENILES — RESTITUTION 14-4-9448 State, in the Interest of M.C., a Juvenile, Chancery Div. (6 pp.) The parent of a minor victim is entitled — under the juvenile dispositional statute and the Crime Victim Bill of rights — to be compensated by a juvenile offender for out-of-pocket costs for the parent’s own psychotherapy and the costs of after-school protective child care for the minor victim. [Approved for publication Jun. 26, 1996.] FEDERAL COURT CASES CIVIL RIGHTS 46-7-9449 Plaze Meadows v. Robert Lipscher, etc., et al., U.S. Dist. Ct. (8 pp.) The court denies defendants’ motion to dismiss plaintiff’s claim pursuant to 42 U.S.C. Sec. 1983 — alleging that the defendants conspired against him to deprive him of his ability to file a motion for post-conviction relief in state court — since, when viewed in a beneficent light, the case states a valid claim for relief and in pled with sufficient specificity to survive the motion to dismiss, and, additionally, since plaintiff does not seek monetary damages, the defendants’ Eleventh Amendment immunity argument fails. INSURANCE — ATTORNEYS FEES TO SUCCESSFUL PARTY IN COVERAGE SUIT 23-7-9450 McCarthy Bros., Inc. v. Aetna, U.S. Dist. Ct. (4 pp.) Even if plaintiff was only partially successful in the underlying action — where it was sued for defective manufacture and installation of windows in a hospital — it was still a “successful party,” and since the arbitrator clearly found that the insurer had a duty to defend in that action, and refused, plaintiff’s application for fees under R. 4:42-9(a)(6) is granted. INSURANCE — REMAND — MAGISTRATE’S AUTHORITY 23-7-9451 Martin D. Aita, etc., et al. v. State Farm Fire and Casualty Co., U.S. Dist. Ct. (11 pp.) A motion to remand is non- dispositive and therefore may be decided by a magistrate judge, whose decision is reviewable only to the extent that it is clearly erroneous or contrary to law; that is not the case here — in a purported class action against provider of homeowners’ insurance — since the magistrate judge used plaintiffs’ contractual and statutory recovery claims as a benchmark to make a reasonable evaluation of their tort recovery, attorneys’ fees and punitive damages, and concluded that plaintiffs would not satisfy the jurisdictional amount in controversy “to a legal certainty.” JURISDICTION — AMOUNT IN CONTROVERSY — AGGREGATION 24-7-9452 Raymond Corry, Jr. v. Intel Corp., U.S. Dist. Ct. (11 pp.) Punitive damages do not fall within the “common and undivided interest” exception to the no-aggregation rule when determining whether a case meets the jurisdiction minimum amount in controversy, and therefore dismisses plaintiff’s case — regarding purported falsification of computer microprocessor test results — for failure to meet the jurisdictional minimum. [Filed Apr. 25, 1996, Approved for publication Jun. 26, 1996.] JURISDICTION — MINIMUM CONTACTS — TRANSFER 24-7-9453 Mary Elizabeth Meyer v. Mt. Airy Lodge, et al., U.S. Dist. Ct. (16 pp.) In a slip-and-fall negligence suit, since plaintiff has not alleged any contacts that defendant resort has with N.J. other than some national advertising and its national toll-free telephone number, plaintiff has failed to establish the continuous and systematic business contacts required for the exercise of general personal jurisdiction over defendant, although, in the interest of justice, defendant’s motion to dismiss will not be granted, and the case will instead be transferred to the Pennsylvania federal court. PRODUCT LIABILITY 32-7-9454 Samuel Crespo, et al. v. Unisys Corp., etc., U.S. Dist. Ct. (42 pp.) In a case where plaintiffs allege repetitive stress injuries caused by letter-sorting machines which the defendant manufactured for the U.S. Postal Service, defendant’s motion to dismiss is granted on the basis of the government contractor defense. A Daily Reporter of New Jersey Court Decisions

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