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Vol. 4 No. 126 – JULY 2, 1996 STATE COURT CASES ARBITRATION 03-2-9455 Michael F. Chazkel v. Howard S. Fleisher, et al. App. Div. (8 pp.) Motion judge correctly interpreted settlement agreement between parties as excepting three disputed claims, and correctly ruled that these claims could be submitted to arbitration and were not barred by the entire controversy doctrine. ATTORNEY/CLIENT — ENTIRE CONTROVERSY 04-2-9456 Rifat Lambiro v. Alexander Levchuk, et al., App. Div. (9 pp.) The Law Division judge erred in dismissing legal malpractice case against both defendants on entire controversy grounds since plaintiff twice tried to consolidate his two legal malpractice actions and was twice rejected; the court affirms the dismissal against one defendant because plaintiff failed to raise any factual issue respecting proximate cause or damages arising from that defendant’s conduct; the dismissal against the other defendant is reversed and remanded for trial. CIVIL RIGHTS — EMPLOYMENT DISCRIMINATION 46-2-9457 Susan Formanowski v. Leigh Bureau, et al., App. Div. (9 pp.) Division on Civil Rights correctly denied plaintiff’s allegations of discriminatory treatment and discharge allegedly because of her sex and pregnancy, ruling that her termination was due to her refusal to work full time; plaintiff’s contention that a fact-finding hearing should have been held is without merit, since she chose to pursue an administrative remedy in lieu of a judicial one. DEBTOR/CREDITOR 15-2-9458 The Trust Co. of N.J. v. Dee Excavating, Inc., et al., App. Div. (10 pp.) The court affirms the judgment entered below — determining amount of deficiency judgment and obtaining balance from CD pledged as additional collateral — and refutes debtors’ argument that plaintiff’s mortgage loan was satisfied by reason of a merger of the mortgage with the fee when plaintiff’s subsidiary purchased the interest of the debtors’ bankruptcy trustee. ENVIRONMENT — ENTIRE CONTROVERSY 17-2-9459 Lincoln Property Co. No. 70, etc., et al. v. Wesley K. Bell v. State of N.J., et al., App. Div. (16 pp.) Appellant is barred under the applicable statute of limitations, N.J.S.A. 13:9A- 6, and the entire controversy doctrine, from challenging a 1984 decision of the D.E.P. commissioner denying its application for a permit to construct billboards, and ordering removal of existing boards, on wetlands tract. INSURANCE — ARBITRATION 23-2-9460 William C. Nachman v. N.J. Mfrs. Ins. Co., App. Div. (4 pp.) Because prior arbitration proceeding was limited to the particular medical bills submitted to the arbitrator, the bills for later diagnoses, treatment and surgery were a proper subject of plaintiff’s claim, free of any res judicata effect, and summary judgment for the insurer was mistakenly entered. INSURANCE — VERBAL THRESHOLD 23-2-9461 Joseph Sparano v. Daniel Timothy Carrigan, App. Div. (4 pp.) Discontinuance of plaintiff’s weight-lifting activities, lowering of his bowling score by thirty points and plaintiff’s feeling that he is performing less effectively when playing softball three times a week — coupled with the fact that plaintiff passed his rigorous state police physical test in each year following the accident — are not sufficient to demonstrate that the accident had a serious impact upon plaintiff’s life, and his case was properly dismissed. MUNICIPAL LAW 30-2-9462 William J. Pascrell, Jr., etc. v. Carmen Mendez, et al., App. Div. (9 pp.) Judge correctly ruled that the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -55, granted the exclusive power to defendant municipal council of the City of Paterson to appoint five members to the Paterson Housing Authority, and mayor’s contention that the Faulkner Act controls, and gives him exclusive power to appoint, is without merit. NEGLIGENCE — INFLICTION OF EMOTIONAL DISTRESS — FEAR OF AIDS 31-2-9463 Karen Williamson, et al. v. Leonard Waldman, et al., App. Div. (9 pp.) The trial court improperly dismissed plaintiff’s claim for infliction of emotional distress — which she filed based on her fear that she will contract AIDS as a result of defendant’s improper disposal of a needle on which she pricked herself — since it cannot be concluded as a matter of law that the plaintiff has reacted unreasonably or unforeseeably, facing, as she does, possible serious injury as a result of exposure to HIV. [Approved for publication Jul. 2, 1996.] NEGLIGENCE — RAILROADS — TRESPASSERS 31-2-9464 Levar Boyd, etc., et al. v. Conrail, et al., App. Div. (14 pp.) Where an infant plaintiff was injured while crossing defendant’s railroad tracks, the motion judge was correct in his characterization of the infant plaintiff as a trespasser, but the judge improperly granted summary judgment to the defendant — concluding that there was no evidence of a breach of a duty owed by the defendant to the plaintiff — since a reasonable jury could conclude from the evidence that the defendant owed a higher duty than normal to the plaintiff because it knew of the presence of children both on the tracks and on the railroad cars. [Approved for publication Jul. 2, 1996.] PRODUCT LIABILITY 32-2-9465 Steven Parker, et al. v. R.D. Werner Co., Inc., App. Div. (15 pp.) Where cable repairman sued defendant — alleging design defects and failure to warn — for injuries he received when he chose to jump from a ladder, thinking it was about to disengage and throw him to the ground, trial judge correctly denied motion for judgment n.o.v. and/or a new trial after jury found for defense, since the evidence — showing that the ladder never actually did become disengaged — supported the verdict, and the judge did not err in failing to charge with respect to the sudden emergency doctrine on the facts of this case. CRIMINAL LAW/PROCEDURE 14-2-9466 State v. W.L., Sr., App. Div. (21 pp.) Reversal of defendant’s child abuse and endangerment, sexual assault and sexual contact convictions is mandated because improper inflammatory statements made by the prosecutor in his opening statement and summation, coupled with prejudicial psychiatric evidence, denied the defendant a fair trial and were clearly capable in this close case of producing an unjust result. [Approved for publication Jul. 2, 1996.] 14-2-9467 State v. Leroy Thomas, et al., App. Div. (12 pp.) The lateness of the hour when two police officers made the stop on the N.J. Turnpike of a vehicle with four occupants, combined with the furtiveness of defendant’s movements and the bizarre behavior of the co-defendant, presented circumstances which, in their totality, justified the officers’ inspection of defendant’s coat, and the order suppressing the seized evidence is reversed. CRIMINAL LAW AND PROCEDURE — DOUBLE JEOPARDY 14-2-9468 State v. Henry Junior Morton, App. Div. (9 pp.) The Fifth Amendment’s Double Jeopardy clause does not preclude defendant’s criminal prosecution and conviction even though a $250,000 civil judgment had previously been entered against him in a domestic violence proceeding arising out of the same incident that gave rise to the indictment. [Approved for publication Jul. 2, 1996.] FEDERAL COURT CASES DEBTOR/CREDITOR — WHITESTONE DOCTRINE 15-7-9469 Amboy Natl. Bank v. Generali – U.S. Branch, etc., et al.; Citibank, N.A. v. Midlantic Bank, N.A. , et al.; Midlantic Bank, N.A. v. William Somers, Jr., et al.; R.T.C. v. William Somers, Jr. et al.; Generali – U.S. Branch v. William Somers, Jr., et al., U.S. Dist. Ct. (20 pp.) In addressing the issue of whether an assignment of a mortgage after a fire extinguishes the right of the assignee to insurance proceeds under the dictates of Whitestone Savings & Loan Assn. V. Allstate Ins. Co., 28 N.Y.2d. 332 (1971), the court notes that the assignment discussion in Whitestone is only dictum which appears inconsistent with the holding of that case, and predicts that the N.J. Supreme Ct. would not adopt that discussion as law, but instead would follow traditional assignment principles, and holds that plaintiff, as assignee of the first mortgagee, takes all to which the first mortgagee was entitled, including — to the extent that it can establish entitlement thereto — the proceeds from the insurance policy; therefore defendants’ motion for summary judgment on this ground is denied. [For publication.] INSURANCE — ENVIRONMENTAL CLAIMS — RIGHT TO JURY TRIAL 23-7-9470 Twp. of Haddon v. Royal Ins. Co. of America, etc., et al., U.S. Dist. Ct. (11 pp.) Where plaintiff was impleaded in environmental cleanup actions, and demanded indemnification and defense from insurers, and where defendant Royal refused coverage, claiming it could not locate any policies under which plaintiff believed it was covered for such claims, causing plaintiff to file a coverage suit for specific enforcement of the alleged insurance policies and, alternatively, for bad faith breach of contract, the court chooses to bifurcate the cause of action and consider the existence and terms of the allegedly lost insurance policies issued by defendant separate from the remainder of the case, and finds that, while plaintiff is entitled to a jury trial on whether the terms of a particular policy provide it with coverage, it is not entitled to a jury trial as to issues relating to the existence and terms of insurance policies it alleges to have lost. JURISDICTION — ROOKER-FELDMAN DOCTRINE 24-7-9471 Altagracia Rodriguez v. N.J. Superior Court, et al., U.S. Dist. Ct. (6 pp.) In a case wherein plaintiff alleges that a state court’s order violated her rights under the Americans with Disabilities Act when she was denied the right to testify at her negligence trial case in an oxygen tent — the state court opining that plaintiff had not shown that the requested accommodations were necessary or reasonable, and that they would be prejudicial to defendants — defendants’ motion to dismiss case is granted, since the court finds that it should abstain pursuant to the Rooker- Feldman doctrine, under which a federal court lacks subject matter jurisdiction to sit in direct review of state court adjudications. LABOR AND EMPLOYMENT 25-7-9472 Dianne Williams v. Jersey City Medical Ctr., et al., U.S. Dist. Ct. (6 pp.) The court finds that pro se plaintiff’s complaint for wrongful termination alleges a “hybrid” action against her union under section 301 of the Labor Management Relations Act — alleging breach of the duty of fair representation — but that the claim is time-barred, and since the record does not reveal any evidence supporting legal or equitable tolling of the limitations period, the union’s motion to dismiss is granted. NEGLIGENCE — FEDERAL TORT CLAIMS ACT 31-7-9473 Bessie B. Cohen, et al. v. U.S.A., U.S. Dist. Ct. (5 pp.) Plaintiffs’ complaint against the United States — alleging that plaintiff slipped and fell on ice outside of a post office due to the negligence of the U.S. Postal Service — is dismissed for failure of plaintiffs to pursue and exhaust the appropriate administrative remedies, a jurisdictional prerequisite to the instant claim. A Daily Reporter of New Jersey Court Decisions

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