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Vol. 4 No. 123 – JUNE 27, 1996 STATE COURT CASES ADMINISTRATIVE LAW/PROCEDURE — FIREARMS 01-2-9376 In the Matter of the Application of Frank J. Natoli, etc., App. Div. (5 pp.) Trial judge properly denied application for two assault firearms since applicant failed to show justifiable need or to satisfy the requirement that issuing a permit here was necessary for the public safety and welfare. ATTORNEY/CLIENT 04-2-9377 Ramp & Renaud, Esqs. v. John Pellicane, App. Div. (4 pp.) A judge’s dismissal of a legal malpractice counterclaim, for a second time, is affirmed since when the judge originally ordered the counterclaim restored on the condition that defendant pay sanction fee to plaintiffs, the lack of a deadline date in the payment order could not have been reasonably understood as permitting the defendants attorney to bring a check to court on the trial date since plaintiffs had no knowledge that defendant client intended to satisfy the order and it would have been grossly unfair to require plaintiffs to go forward with a trial when they had assumed that the counterclaim remained dismissed for defendant’s failure to pay the sanction. ATTORNEY/CLIENT — WILLS 04-2-9378 Jerry A. Barner, et al. v. Robert Sheldon, et al., App. Div. (2 pp.) The Law Division did not err in finding that attorney had no duty to inform the beneficiaries of the tax consequences of their failure to disclaim under their fathers estate, since the testators intent was to minimize the benefit to his wife by his will, and any disclaimer would have benefited the wife, contrary to that intent. Additional opinion approved for publication: In addition to the publication of the Law Division opinion in Jerry A. Barner, et al. v. Robert L. Sheldon, DDS No. 38-3-9552, the court also approved the two-page Appellate Division opinion in the case, which was cited in the Alert dated June 27, 1996, under DDS No. 04-2-9378. CIVIL PROCEDURE — COUNSEL FEES — MOTIONS 07-2-9379 Bernard Laufgas v. Barnegat Twp. Bd. Of Educ., App. Div. (4 pp.) Judge mistakenly awarded counsel fees to defendant on plaintiffs motion to enforce litigants rights, since N.J.S.A. 2A:15-59.1 allows fee awards only on complaints, counterclaims, cross-claims or defenses, but does not apply to motions. CONTRACTS 11-2-9380 Computron Technologies Corp. v. Daka Int’l Inc., App. Div. (10 pp.) In a case involving reciprocal breach-of-contract allegations in the sale of a computer software system and related services, there was ample basis in the proofs to support the finding implicit in the verdict that plaintiff had failed to discharge its contractual obligations, entitling defendant to a verdict on its counterclaim. 11-2-9381 Lanard & Axilbund Inc. v. Naccon Inc., etc., et al., App. Div. (23 pp.) On plaintiffs suit for real estate commissions, the motion judge correctly granted summary judgment in favor of seller, concluding that correspondence did not constitute a contract and therefore that there was no writing evidencing an agreement between the parties to pay a commission, and consequently no compliance with the Statute of Frauds. DEBTOR/CREDITOR — FORECLOSURE 15-2-9382 First Fidelity Bank, N.A., N.J., etc. v. N.J. Nat’l Bank, etc., et al., App. Div. (9 pp.) In a case where plaintiff bank was never instructed to cancel home equity loan, although balance was reduced to zero by a payoff check from another loan debtors closed with defendant bank, and where debtors later borrowed additional funds on the home equity credit line, placing plaintiffs lien in front of defendants lien, the judge erred in ordering plaintiff to dismiss its foreclosure and extinguish its mortgage, since defendant bank, closing attorney and title company all had some responsibility for and knowledge of the payoff and properly canceling the home equity loan, and matter must be remanded for a full hearing. EDUCATION 16-2-9383 John F. Cancalosi v. Bd. Of Trustees of the Teachers Pension and Annuity Fund, App. Div. (7 pp.) Board properly found that petitioners six months of service in the N.J. National Guard did not constitute active military duty under the Teachers Pension and Annuity Fund Act, and therefore board’s finding that petitioner was not entitled to classification as a veteran for pension benefit purposes is affirmed. FAMILY LAW 20-2-9384 K.S. v. P.S.; P.S. v. K.S., App. Div. (6 pp.) Hearing- impaired defendants contention that he was deprived of a fair hearing in his matrimonial matter — because he was not given the means for effective communication required by the Americans With Disabilities Act — are without merit, since the colloquy in the record shows that defendant understood and heard everything that was being said. Judge did not act as advocate for wife in his advice to her to file a domestic relations complaint. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9385 W.R. v. K.R., App. Div. (5 pp.) Judge correctly found that defendant had committed the offense of harassment by intentionally and unjustifiably locking the plaintiff out of her home, and this, coupled with the pattern of domestic violence, warranted the entry of the final restraining order and other relief afforded by the court. GOVERNMENT — BIDS 21-2-9386 In re: Challenge of Fem Com Business Sys. Inc., etc., (Coastal I), App. Div. (11 pp.) Final decision of the director of the state Treasury Department’s Division of Purchase and Property — rejecting all bids on a request for purchase (RFP) relating to the outright purchase and lease purchase of office photocopier equipment, maintenance and supplies, and ordering that part of the RFP be rebid — was a valid exercise of discretion, supported by the record as an exercise of sound business judgment, and is affirmed. [This is a related case to 21-2-9387 below.] 21-2-9387 In re: Challenge of Fem Com Business Sys. Inc., etc., (Coastal II), App. Div. (9 pp.) The director erred in denying Coastals challenge to the new photocopier bid specifications, (1) since the specifications — calling for three separate vendor awards — do not indicate why a single bidder could not satisfy the states needs, nor do they state that at least three vendors in each speed band are necessary to serve the using agencies needs per N.J.S.A. 52:34-12.1a, and (2) since the specifications contain too many choices, and the lack of supervision over the choices of non-state agencies could lead to favoritism, improvidence, extravagance or corruption, the practices that competitive bidding is meant to avoid. [This is a related case to 21-2-9386 above.] INSURANCE — HOMEOWNERS — BUSINESS EXCLUSION 23-2-9388 James S. OBrien v. Allstate Ins. Co., App. Div. (3 pp.) Where homeowner had his business tools at home because he was out of work on disability, but didnt use them at home or for any personal reason, the business exclusion of homeowners insurance policy was inapplicable, and summary judgment in favor of insurer — holding that theft of those tools was not covered under the homeowners policy — is reversed. LABOR/EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9389 Theresa B. Heard v. Bd. Of Review, App. Div. (5 pp.) Since petitioner was clearly not entitled to the regular benefits she received, even though she was not at fault, the redetermination of her claim and liability for refund is affirmed, however, waiver provisions for overpayments of Federal Supplemental Compensation benefits are more lenient than those for overpayments of regular benefits, and a limited remand is necessary to consider petitioners request for a waiver of refund liability as to the FSC overpayments. LANDLORD/TENANT 27-2-9390 Richard Feldman v. Leeshan Birney, et al., App. Div. (4 pp.) To the extent that the trial judge concluded that the landlord, through his agent, acted in a commercially unreasonable manner by redepositing tenants proffered security deposit check – - which had been returned for insufficient funds — the judge was wide of the mark, since the tender of the insufficient check constituted a breach by the tenant and provided a basis for the landlord to terminate the lease, however the judge was correct in his conclusion that the tenant was not entitled to any damages, since the tenant never offered to make good on the check, but instead found another, more expensive, place to live and claimed that the landlord was responsible for the extra costs tenant incurred as a result. LAND USE 26-2-9391 Carolyn Berry v. Harry Michel, et al., App. Div. (2 pp.) Zoning board properly granted permit to homeowners in rural development zone — allowing them to construct a fence to maintain a hog pen on their property — since the zone permits agricultural activity as an accessory use in conjunction with residential uses. PHYSICIAN/PATIENT 29-2-9392 Ernest Lee Hill, et al. v. Keshavamurthy Shivashankar, M.D., et al., App. Div. (23 pp.) In an action for injuries suffered by alcoholic plaintiff when he jumped out of hospital window while a patient, jurys verdict of no negligence is affirmed, and plaintiffs contentions — that defendants exercised their peremptory challenges in a racially discriminatory manner, that judge erred in not allowing plaintiffs the same number of peremptory challenges as the two defendants, that judge was biased and hostile to their case, and that judge erred in several evidentiary rulings — are without merit. PRODUCT LIABILITY –ASBESTOS 32-2-9393 James Iannaco v. Owens-Corning Fiberglas Corp., et al., App. Div. (6 pp.) The trial judges dismissal of plaintiffs case against Owens-Corning — concluding that plaintiff should have discovered his asbestos-related disease and claims against defendant earlier by exercising reasonable diligence — is reversed, since plaintiff had been accurately diagnosed with emphysema, a progressive pulmonary condition which exhibits the same symptoms as asbestosis, and plaintiff cannot be faulted for not questioning his treating physicians diagnosis or seeking a second opinion. PUBLIC EMPLOYEES — ACCIDENTAL DISABILITY RETIREMENT BENEFITS 33-2-9394 Jose Angelo Carreno-Martinez v. Pub. Employees Retirement Sys., App. Div. (5 pp.) Petitioner is entitled to accidental disability retirement benefits because his injuries were caused by a traumatic event — the collapse of a ladder as he was inspecting a rooming house — and the PERS boards findings to the contrary are reversed. 33-2-9395 Michael Ennis v. P.E.R.S., App. Div. (6 pp.) Police chief was the victim of a violent, physical assault when he tried to subdue a strong, deranged and hysterical person, and the ALJ correctly held that the injuries he sustained during the episode were properly found to be caused by a traumatic event, therefore, the PERS boards holding to the contrary was arbitrary and capricious, and is reversed. TAXATION 35-2-9396 Emanuel Schorr, et al. v. City of Passaic, App. Div. (13 pp.) Plaintiffs proofs were insufficient to overcome the benchmark for assessment equality created by Chapter 123 and judgment in their favor on their discrimination case is reversed and remanded for entry of judgment in favor of the city. 35-2-9397 Ganifas Trust, et al. v. City of Wildwood App. Div. (9 pp.) Tax Court judges decision — upholding county boards dismissal of taxpayers assessment appeal for lack of prosecution — is affirmed, since he found that the county should have dismissed the taxpayers assessment appeal for lack of prosecution because of the total absence of proof of true value, and the fact that the county board gave insufficient evidence and not lack of prosecution as the reason for the dismissal was insignificant. 35-2-9398 First DeWitt Savings v. Cedar Grove Twp., App. Div. (5 pp.) Judge, in reducing plaintiff’s property assement, correctly found that the value of plaintiffs basement was included in the stipulated value of $25 per square foot for the space above grade level. WORKERS COMPENSATION 39-2-9399 Cynthia Lichtenberg v. Passaic Bd. Of Educ., App. Div. (8 pp.) The court affirms a judgment awarding death dependency benefits and funeral expenses to petitioner based upon a finding that decedent — a school custodian — died as a result of striking the back of his head during a fall while attending a teachers convention. CRIMINAL LAW AND PROCEDURE 14-1-9400 State v. John M. Garthe, Supreme Ct. (29 pp.) Absent evidence that the test protocols established by the state police are not scientifically reliable to establish that Breathalyzer machines are in proper working order, the state may, subject to the requirements of the N.J. Rules of Evidence, offer at DWI trials a copy of the Breath Test Inspectors Inspection certificate. CRIMINAL LAW AND PROCEDURE — DOMESTIC VIOLENCE 14-2-9401 State v. Louis Filippi, App. Div. (3 pp.) Defendant did not have the requisite culpability to be convicted of violating a restraining order, since, according to defendants testimony, which the judge found credible, he did not know that the nature of his conduct — telephoning complainant when he heard “she had sustained a self-inflicted cut on her wrist” — was a violation of the restraining order or that it was practically certain that the complainant would perceive that specific telephone call as a violation of the order when there had been others. FEDERAL COURT CASES BANKING — DOENCH, DUHME DOCTRINE — FDIC 06-7-9402 Augustus Condus, et al. v. Howard Savs. Bank, et al.; Leo A. Gutman, et al. v. Howard Savs. Bank, et al., U.S. Dist. Ct. (49 pp.) On failed bank stockholders complaint for damages for their stock’s diminished value, the court denies in part the FDICs summary judgment motion, holding (1) that FIRREA Sections 1821(d)(9)(a) and 1823(e) do not bar stockholders claims against the FDIC since the alleged agreement — i.e., the allegedly fraudulent and negligent misrepresentations made by defendants that induced stockholders to hold their stock — does not relate to a specific, identifiable asset acquired by the FDIC, (2) that common law DOench is still a viable doctrine, despite FIRREA, and (3) that because the claims asserted by the stockholders involve a non-banking transaction that ordinarily would not be part of the bank’s written records, common law DOench does not estop the assertion of stockholders claims. BANKRUPTCY 42-7-9403 In re: Greenbrier Indus. Inc., Debtor; John Sywilok, etc. v. H. Landau & Co., U.S. Dist. Ct. (5 pp.) Bankruptcy court did not abuse its discretion in denying motion to vacate summary judgment brought by defendant in adversarial proceeding, since the argument in support of the motion to vacate — that discovery was not complete — was the same as it used in opposition to the original summary judgment motion, and the court found that the defendant had exhibited a pattern of delay throughout the course of the adversarial proceeding, and never offered an explanation why it did not seek the information it needed during the discovery period. EVIDENCE — DAMAGES EXPERTS 19-7-9404 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (16 pp.) The court finds that, pursuant to Rule 702, (1) plaintiffs expert is qualified to testify as to lost opportunity damages from development project and alleged below- market condominium sales, (2) that his opinion as to the damages resulting from the alleged diversion of office equipment is admissible, (3) that he is qualified to testify concerning the unpaid rent for office personnel, equipment and space, however, (4) the court will preclude the expert from testifying on the value of field equipment allegedly removed by one defendant because the experts proffer consists entirely of information acquired second-hand from the plaintiff. INSURANCE — FIRE LOSS 23-7-9405 Polizzi Meats Inc., et al. v. Aetna Life & Casualty Co.; N.J. Natl Bank v. Aetna Life & Casualty Co., et al., U.S. Dist. Ct. (28 pp.) (1) Since the evidence developed by insurers investigation, as supplemented by a police investigation , raised serious questions about the nature and origins of a fire at plaintiffs premises, as well as about plaintiffs possible involvement with that fire, the insurers actions in denying coverage were fairly debatable and insurer is entitled to partial summary judgment on plaintiffs claim for bad faith damages. (2) Plaintiffs have pointed to nothing in the record to support their punitive damages claim, and insurer will be granted partial summary judgment on this claim. (3) Plaintiffs cross- motion for summary judgment is denied, since there are material factual issues concerning whether the fire was caused by accident or arson. Additional opinion approved for publication: 25-7-9087 Janice P. Stewart v. Rutgers, etc., et al., U.S. Dist. Ct. (52 pp.) —END— A Daily Reporter of New Jersey Court Decisions

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