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Vol. 4 No. 120 – JUNE 24, 1996 STATE COURT CASES ARBITRATION — DE NOVO APPLICATIONS 03-2-9330 Mary C. Hartsfield v. Fred M. Fantini, et al., App. Div. (4 pp.) Because plaintiff�s attorney failed to timely file for a trial de novo due to internal problems in his law office, the trial judge correctly held that the attorney�s excuse did not constitute the extraordinary circumstances necessary to relax the time limit. DEBTOR/CREDITOR 15-2-9331 Globe Motor Car Co. v. First Fidelity Bank, N.A., N.J., et al., v. Joseph Chnapko, et al., App. Div. (3 pp.) Court affirms summary judgment in favor of bank against auto dealership for the reasons expressed in trial court�s opinion published at 273 N.J. Super. 388 (Law Div. 1993), noting, however, that the part of the trial court�s opinion concerning the dealership�s claim against the bank for paying forged or altered checks is dictum because those claims were not properly before the court. [Approved for publication Jun. 24, 1996.] INSURANCE — HOMEOWNERS — HOUSEHOLD MEMBERS 23-2-9332 Christopher Tsiopelas, etc., et al. v. Public Service Mut. Ins. Co., etc., App. Div. (6 pp.) While a residence for grandchild was maintained at his grandparents� home, the child primarily resided with his mother and was part of her household wherever it happened to be, and judge correctly concluded that grandparents� homeowners� policy — issued by defendant and excluding household members — covered injuries sustained by child when he was accidentally scalded by grandmother�s hot tea. LABOR AND EMPLOYMENT 25-2-9333 David Pang v. Berlex Laboratories Inc., et al., App. Div. (8 pp.) Evidence supported judge�s dismissal of plaintiff�s wrongful discharge decision and findings that plaintiff was an employee at will, terminated for cause, and that all company procedures were followed by the employer in the termination. With regard to plaintiff�s defamation claims, judge correctly held that employer�s statements were protected by qualified privilege. LABOR AND EMPLOYMENT — ERISA 25-2-9334 Joseph P. Totoro, et al. v. H.A. DeHart & Son Inc., et al., App. Div. (4 pp.) Trial judge correctly concluded that plaintiff�s claims for wrongful discharge and retaliation were preempted by ERISA. PHYSICIAN/PATIENT 29-2-9335 Estate of Sharon Coleman, etc. v. United Hosps. Medical Ctr., et al., App. Div. (7 pp.) Motion judge did not abuse her discretion in rejecting plaintiff�s motion to restore complaint, based upon the fact that the case was two years old, that doctor defendant had not yet been served, and plaintiffs did not yet have any expert report to support a prima facie claim against the hospital defendant, and especially after plaintiff failed to provide court-requested background explanation concerning the procedural shortcomings in the preparation of its case for trial. PUBLIC EMPLOYEES — FIREFIGHTERS — BENEFITS 33-2-9336 City of Union City v. Anthony Pino, App. Div. (9 pp.) City was not entitled to recoup �salary� payments made to fireman receiving retirement benefits, since only recoupment of pension benefits, not salary, is authorized; therefore, city�s case was properly dismissed, however, matter is remanded to the trial court to consider whether the city has complied with the uniformity requirement of N.J.S.A. 40A:10-23 in denying health benefits to the fireman while extending such benefits to other employees who retired on an accidental disability pension, and, if not, to determine an adequate remedy. TAXATION 35-5-9337 N.J. Transit Corp. v. City of Newark, Tax Ct. (10 pp.) Ten-year statute of limitations for actions commenced by the state, provided in N.J.S.A. 2A:14-1.2, does not apply to property tax appeals, rather, all property tax appeals, including both regular assessments appeals and omitted/added assessment appeals, are governed by the statute of limitations found in N.J.S.A. 54:3- 2.1. Although N.J.S.A. 54:4-54, which deals with duplicate assessments, imposes no time limits, this statute is not available where another statutory mechanism, such as the omitted/added assessment law, can be used to correct an omission. [Approved for publication.] 35-5-9338 E.E. Mori v. Town of Secaucus, Tax Ct. (25 pp.) The four factors determining highest and best use are legal permissibility, physical possibility, financial feasibility and maximal productivity, and the court holds that (1) physical possibility is not jeopardized if it is reasonably foreseeable that impediments to a property�s proposed use will be remedied, (2) nor is physical possibility affected where physical limitations may be overcome by applying additional capital. An illegal proposed use forecloses consideration of other factors. In determining financial feasibility, the court will not consider the present rental market, but only potential future gross income. The circumstances of a specific taxpayer are not relevant in ad valorem taxation. [Approved for publication.] CRIMINAL LAW AND PROCEDURE — NUISANCE 14-2-9339 State v. James Sadesky, App. Div. (3 pp.) Where park employees noticed defendant leaving donuts on the ground in an area of the park where there was a rodent problem, the evidence supported defendant�s littering conviction, but did not establish the elements of unreasonable conduct �creating or maintaining a condition endangering the safety or health of a considerable number of persons� necessary to support defendant�s nuisance conviction, which is reversed. FEDERAL COURT CASES BANKING 06-7-9340 Resolution Trust Corp. v. John B. Beahan, et al., U.S. Dist. Ct. (16 pp.) Where former bank vice president has pled guilty to criminal charges stemming from the same conduct for which the RTC seeks damages in this action, there is no issue of material fact and the RTC is entitled to default judgment against that defendant on counts of complaint alleging breach of fiduciary duty and conspiracy to embezzle and misappropriate bank funds, however, since there are joint and several liability issues between the former bank vice president and other co-defendants, it would be inappropriate to liquidate the damages under this default judgment at this juncture. BANKRUPTCY 42-6-9341 In re: Neil A. Auricchio, Debtor; Martin Daly, et al. v. Neil A. Auricchio, U.S. Bankruptcy Ct. (25 pp.) Court correctly found that the debtor — an attorney/real estate seminar lecturer — had intentionally and materially misrepresented certain facts to real estate investors and that investors relied on the representations, proving a claim for nondischargeability under Code Section 523(a)(2)(A), and the court discusses the damages awarded under this claim, but the court also finds that investors failed to prove willful or malicious injury necessary to support their claim under Code Section 523(a)(6), and failed to prove either an express or technical trust required to sustain their claim against debtor for breach of fiduciary capacity. [For publication.] 42-6-9342 In re: Donald O. Reynolds, Debtor; Victor M. Starr, et al. v. Donald O. Reynolds, U.S. Bankruptcy Ct. (4 pp.) Court finds that there is nothing in the record to show that debtor/seller of real estate knew of structural defects in house he sold, and could not have intentionally concealed the defects from the buyers. [For publication.] INSURANCE — PREJUDGMENT INTEREST 23-8-9343 Hartford Accident & Indem. Co. v. Gwen S. Sharp, etc., Third Cir. (12 pp.) Since the pertinent statute — authorizing payment of prejudgment interest in coverage suit from the date of loss to the judgment date as compensation for delay in payment — states clearly on its face that an �insured� may recover prejudgment interest, the additional benefit is not available to one who is not an insured, and, therefore, the district court erred in awarding such interest to widow of insured. LABOR AND EMPLOYMENT — CONTEMPT 25-7-9344 In re: Onofrio Mezzina; U.S.A. v. Local 560 (I.B.T.), et al., U.S. Dist. Ct. (11 pp.) In a case where movant was expelled from union membership and then found to be in contempt for violating the expulsion order when he provided labor consulting services to employers involved in union negotiations, movant�s motion for reconsideration of the contempt order is denied, since he has not directed the court�s attention to any matters that were presented, but overlooked, and instead has impermissibly attempted to bring to the court�s attention information that was never presented during the original hearing.

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