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Vol. 4 No. 124 – JUNE 28, 1996 STATE COURT CASES BANKING 06-2-9406 Spevack, Cameron & Boyd v. Nat�l. Community Bank of N.J., etc. v. Samuel L. Salter, App. Div. (5 pp.) Summary judgment in favor of bank on law firm�s claim for wrongful payment out of its trust account is affirmed, since (1) trial judge correctly held that the fact that monies were actually credited to the named payee’s account was a valid defense to plaintiff�s claim of payment on a faulty or forged endorsement, and (2) since an endorsement signature need not be a name, the words �for deposit only� with the payee�s account number constituted a proper endorsement. [Approved for publication Jun. 28, 1996.] CIVIL PROCEDURE 07-2-9407 Ida Klajman v. Fair Lawn Estates, et al. v. Affiliated Dev. Inc., App. Div. (8 pp.) Dismissal of plaintiff�s complaint with prejudice, without requiring plaintiff�s counsel to appear on motion’s return date and without notice to the client, was so procedurally deficient and fundamentally unfair that exceptional circumstances have been shown warranting reinstatement of the complaint. [Approved for publication Jun. 28, 1996.] 07-2-9408 Biophase Sys. Int�l Inc. v. Int�l Resource Co. Inc., et al., App. Div. (13 pp.) Since a California individual defendant understood the consequences of his decision not to participate in New Jersey case, claiming but not substantiating his impecunity, judge did not err in failing to vacate default judgment when defendant suddenly was able to borrow money from his mother for a defense. CONTRACTS 11-2-9409 Suburban Restoration Co. v. Oxford Twp. Bd. of Educ., App. Div. (2 pp.) Plaintiff�s contract complaint was properly dismissed because it was filed beyond the six-year statute of limitations, and plaintiff�s contention that the limitations period should not apply because a governmental entity such as defendant has a duty to deal fairly is without merit. CORRECTIONS 13-2-9410 John R. Blue v. N.J. Dep’t of Corrections, et al., App. Div. (3 pp.) In view of the age and minimal nature of inmate�s prior conviction 34 years earlier, it should not have been used as a bar to his being afforded �full minimum status.� DEBTOR/CREDITOR — FORECLOSURE 15-2-9411 The Prudential Home Mtg. Co., Inc., etc. v. Michael W. Lloyd, etc., et al., App. Div. (12 pp.) The court agrees that service upon defendant in foreclosure action was defective, but remand is required to determine whether defendant, who had actual knowledge of the action, is guilty of laches or is otherwise estopped from challenging the lack of service. EDUCATION 16-2-9412 Bd. of Educ. of the City of Millville, etc. v. Bd. of Educ. of the Twp. of Maurice River, etc., et al. v. Bd. of Educ. of the City of Millville, etc., App. Div. (5 pp.) Since state Board of Education upheld reimbursement rates calculated in a manner consistent with the governing legislation or implementing regulations, and its decision was not otherwise arbitrary, capricious or unreasonable, its decision is affirmed and school board�s argument that its calculation method is a better approach is without merit. FAMILY LAW 20-2-9413 Arlene J. Martina, etc. v. Carmen A. Martina, App. Div. (4 pp.) Given the subjectivity and imprecision of the multifactor Newburgh analysis which the judge made continuously from the original child support and tuition application and on through remand proceedings, he did not abuse his discretion or commit any legal error in award made, either in the amount or in the credits applied toward previous payments. 20-2-9414 Gary S. Grest v. Kuldip K. Grest, App. Div. (25 pp.) On post-divorce appeal by ex-wife of various of the motion judge�s decisions, the judge erred in compelling the ex-wife to pay up to $1,000 of summer camp expenses, making no findings as to her ability to pay, not addressing the representation made that the children did not want to attend the camp, and not considering the alternative of a free municipal summer recreation program. The judge also erred in modifying final judgment to provide that both parents must agree on the children�s participation in extracurricular activities, since the ultimate responsibility for such decisions would fall to ex-wife as the primary caretaker in the absence of a change of circumstances, which were not shown. GOVERNMENT — BIDS 21-2-9415 CFS Servs. Inc. v. Director, Div. Of Purchase and Property, etc., App. Div. (6 pp.) Decision to reject lowest bid on state contract for security guard services was proper, since the bid was materially nonresponsive to the solicitation requirements in several ways, and bidder�s attempts to correct the deficiencies after the date of bid opening could not be entertained. INSURANCE 23-2-9416 Gen. Export Clothing Corp. v. Jerry Waldor, etc., et al., App. Div. (4 pp.) Receipt of insurance premium by agent — who, although not an official agent of insurer, obtained policy from another agent who was an agent of insurer — was binding on insurer, and since it was received by the first agent before the insurer issued a cancellation notice, summary judgment dismissing coverage claim is reversed. INSURANCE — P.I.P. 23-2-9417 Magdalena Truchan v. Prudential Ins. Co. of N.J., App. Div. (3 pp.) Plaintiff�s attempt to collect PIP benefits under each of her parents� two policies issued in accordance with N.J. No-Fault Law violates the anti-stacking provision of Section 4.2 of the statute and insurer was properly granted summary judgment. INSURANCE — VERBAL THRESHOLD 23-2-9418 Anne Myles, etc. v. Teodosio Santiago, et al., App. Div. (6 pp.) The motion judge correctly concluded that plaintiff had failed to prove that her decedent was unable to perform substantially all of the material acts that constituted his usual and customary daily activities (alleging a type 9 injury) based upon her proffer of the sole evidence that the medical reports stated that decedent was out of work for a period of time. Plaintiff�s attempt on reconsideration motion to supplement the record by introducing the missing evidence was improper. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-2-9419 Joanne Payton v. N.J. Tpke. Auth., et al., App. Div. (23 pp.) Since an employer�s response to an employee�s sexual harassment complaint is central to her cause of action, the employee needs the information necessary to measure the employer�s response to her complaint, and judge erred in entering protective order in favor of employer protecting from discovery all of employer�s investigative reports and notes relating to employee�s complaint, however, when the court reviews the disputed material on remand, the court shall determine whether the identities of witnesses should be redacted. [Approved for publication Jun. 28, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9420 Mikhail Belenky v. Bd.of Review, App. Div. (3 pp.) Bus driver�s failure to report a minor incident, where school bus slid into guard rail, but no one was injured and there was barely any property damage, did not amount to misconduct within the meaning of the unemployment compensation statute, and he was improperly denied benefits after he was terminated. LAND USE 26-2-9421 Steven Nickels, etc., et al. v. Mariner�s Landing Inc., etc., et al., App. Div. (20 pp.) Law Division judge correctly reversed zoning board�s approval of pier expansion and arcade projects, with the judge noting that none of the board’s special reasons, however desirable, could reasonably be said to advance the statutory zoning purpose, and there was no effort by the board to reconcile the grant of the variance with the municipal ordinance’s purpose. NEGLIGENCE — DAMAGES — CREDITS — COLLATERAL SOURCE RULE 31-2-9422 Christopher Parker, et al. v. Vincent J. Esposito, et al., App. Div. (Approved version contains 9 pp. — Unapproved, complete version, with extensive discussion of damages evidence, contains 27 pp.) The collateral source rule requires a plaintiff to deduct benefits received after judgment, but since court administration of an award beyond entry of judgment is impractical and unreasonable, the plaintiff�s entitlement to future benefits must be determined and fixed when judgment is entered on the verdict. [Approved for publication Jun. 28, 1996.] NEGLIGENCE — PRODUCT LIABILITY 31-2-9423 Mary Thomas v. Elizabeth 85 Assocs., App. Div. (11 pp.) In a case where plaintiff fell while using a ladder she borrowed from her apartment building’s superintendent, judge properly exercised her discretion under the circumstances in vacating default judgment, and correctly granted summary judgment to defendant since plaintiff�s proofs regarding defects in the ladder, in the absence of expert testimony, were too slender to warrant a trial. PRODUCT LIABILITY 32-2-9424 Curtis J. Shearer v. Continental Sel, et al. v. Phillip A. Sherman, D.C., et al., App. Div. (7 pp.) Judge correctly refused to apply Anderson v. Somberg to shift the burden of proof to the defense in this case — where plaintiff was burned by electric stimulation pads placed on his back during chiropractic treatments — since plaintiff was not a �helpless patient� simply because he was lying face down, but could have been considered negligent by failing to seek help or get up and stop the treatment. Judge correctly granted summary judgment to defense for plaintiff�s failure to comply with order compelling expert�s report. PRODUCT LIABILITY — INDEMNIFICATION — ENTIRE CONTROVERSY 32-2-9425 Harley Davidson Motor Co., Inc. v. Advance Die Casting, Inc., et al., App. Div. (16 pp.) Court improperly dismissed plaintiff�s indemnification suit — against component parts manufacturer and its insurer — for failure to comply with the entire controversy doctrine, since the doctrine is inapplicable because the indemnification claim did not technically accrue until plaintiff�s settlement with the personal injury plaintiff, and the indemnitor had been notified of the prior action and had had the opportunity to defend. [Approved for publication Jun. 28, 1996.] WRONGFUL DEATH 40-2-9426 Julie Gangemi, etc. v. Nat�l Health Labs., Inc., et al., App. Div. (8 pp.) Judge improperly dismissed plaintiff�s complaint seeking damages for her sister’s wrongful death, (1) because judge’s concern regarding a sibling�s ability to assert a claim under the wrongful death statute was misplaced as the statute clearly anticipates recovery for any family member who could qualify under the intestacy laws, and (2) because the type of advice and companionship plaintiff has lost has an economic component compensable under the statute. [Approved for publication Jun. 28, 1996.] CRIMINAL LAW AND PROCEDURE — CAPITAL CASES 14-1-9427 State v. John Martini Sr., Supreme Ct. (36 pp. — includes dissent) Because the public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants, a special, truncated procedure for post-conviction relief is established for capital defendants who do not want post-conviction review. 14-1-9428 State v. Rasheed Muhammad, Supreme Ct. (65 — includes dissent) The federal and state constitutions permit victim-impact evidence at capital sentencing hearings. FEDERAL COURT CASES ATTORNEY/CLIENT — FEES — EXPERT TESTIMONY 04-7-9429 W. James MacNaugton v. NBF Cable Sys. Inc., U.S. Dist. Ct. (7 pp.) The court denies attorney�s motion — seeking summary judgment in suit for fees on the ground that client cannot prevail as a matter of law because it has not proffered expert testimony — since, although expert testimony may be necessary in a legal malpractice case, attorney has provided no authority to support his proposition that such testimony is necessary in cases, such as this, where a client defends fee suit by asserting that the fees were unreasonable, excessive, and, in part, unauthorized. JURISDICTION 24-7-9430 Michael Wichinsky, etc. v. Betstar Ltd., et al., U.S. Dist. Ct. (25 pp.) German defendants� motion to dismiss contract complaint for lack of personal jurisdiction and insufficiency of service is granted, since neither the corporate defendant served, nor its owners, qualify as agents, alter egos or departments of the German defendants such that the Court can impute their forum contacts to the German defendants. LABOR AND EMPLOYMENT 25-7-9431 Beverly Pitak, et al. v. Bell Atl. Network Servs., Inc., et al., U.S. Dist. Ct. (51 pp.) Former employees knew that their jobs would be eliminated when the standardized billing system on which they were working was implemented, and, although they were told that efforts were being made to relocate them, they were encouraged to actively pursue other positions on their own; therefore, the employees have failed to prove that employer made any binding promises of continued employment, or that employer discriminated against them under any of the theories alleged in the complaint. [For publication.] 25-8-9432 Barbara Coleman v. John Kaye, etc., et al., Third Cir. (58 pp.) (1) County prosecutors act on behalf of the county when they make personnel decisions, and therefore the district court erred in vacating the jury verdict in sex discrimination case against the Monmouth County. (2) County waived any defense of lack of personal jurisdiction by its involvement with the case. (3) Evidence is sufficient to support the jury verdict for compensatory and punitive damages against the prosecutor individually. TAXATION 35-8-9433 Tate & Lyle, Inc., etc. v. Comm�r Of Internal Revenue Serv., Third Cir. (26 pp.) Treas. Reg. Sec. 1.267(a)-3 is a valid exercise of the powers delegated to the secretary under I.R.C. Section 267(a)(3), therefore, the U.S. Tax Court erred in reversing commissioner�s deficiency determination against taxpayer, by holding that the regulation was invalid to the extent that it requires accrual basis taxpayers to defer deductions for interest owed to a related foreign payee until the year the interest is paid. Additionally, the retroactive application of the regulation to the taxpayer does not violate due process. Additional opinion approved for publication: 14-2-9253 State v. Trevor Bradley [Decided Jun. 17, 1996, Approved for publication Jun. 24, 1996.] A Daily Reporter of New Jersey Court Decisions

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