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Vol. 4 No. 117 – JUNE 19, 1996 STATE COURT CASES ARBITRATION — CONDOMINIUMS — NUISANCE 03-2-9270 David Shenker, et al. v. Winston Towers 200 Ass n, Inc., et al., App. Div. (11 pp.) Summary judgment was correctly granted to defendants on plaintiffs complaint — alleging that their upstairs neighbor s piano practicing was a nuisance and that condominium’s board of directors failed to act properly in response to plaintiffs complaints — since (1) actions of condo board collectively and individually fell within the business judgment rule, and (2) plaintiffs are bound by the arbitrator s decision that the piano practicing did not constitute a nuisance, since arbitration was voluntarily pursued by the plaintiffs. FAMILY LAW 20-2-9271 Brian Sarvetnick v. Elinor Sarvetnick, etc., App. Div. (4 pp.) Since there is not a scintilla of evidence suggesting bias or prejudice on the part of a court-appointed psychiatrist to assist in reintroducing defendant to her children, defendant s motion to replace the psychiatrist was properly denied. 20-2-9272 Gisela F. Welber v. Jack N. Welber, App. Div. (8 pp.) Under the aggregate circumstances of defendant s potentially forced early retirement and his responsibility for raising his 10-year-old son from his second marriage, defendant is entitled to reconsideration of his application to terminate alimony based on all factors relevant to the case. INSURANCE — VERBAL THRESHOLD 23-2-9273 Teresa Barreto, etc., et al. v. Barry Soojhai, et al., App. Div. (7 pp.) In light of the anomaly created under the disparate legislative treatment accorded by the No-Fault Law, N.J.S.A. 39:6A-1, et seq., and the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61, et seq., to persons injured in auto accidents who, like plaintiff, are neither insured nor required to be insured by an auto liability policy, trial court did not err in determining the verbal threshold issue in the case rather than submitting it to the jury. LABOR AND EMPLOYMENT — INTERNS 25-1-9274 In the Matter of Univ. of Medicine and Dentistry of N.J. and Committee of Interns and Residents, Supreme Ct. (37 pp.) UMDNJ committed an unfair labor practice in refusing to provide notice and information to the Committee of Interns and Residents (the interns collective bargaining agent) concerning disciplinary proceedings against an intern, and in refusing to allow the committee to attend the investigatory interviews, however, because of UMDNJ s right to academic freedom, the committee’s right to information and ability to attend hearings terminates as soon as it is clear that the disciplinary proceedings were initiated solely due to academic and medical concerns. LANDLORD/TENANT 27-2-9275 Millville Hous. Auth. v. Carmen Brown, App. Div. (7 pp.) Judgment of possession in favor of landlord — evicting tenant for her violation of lease provision concerning accommodation of guests on her rented premises — is reversed, since the landlord failed to include in its notice to vacate certain declarations of rights mandated by federal statute and regulation, depriving the court of jurisdiction over the summary dispossess action. LAND USE 26-2-9276 Albert Buoncristiano v. N. Wildwood Zoning Bd. Of Adjustment, App. Div. (6 pp.) There is no basis to disturb denial of plaintiffs application for a bulk or dimensional variance since the record discloses plaintiff failed not only to prove grounds for granting either an N.J.S.A. 40:55D-70c(1) or c(2) type variance, but also failed to satisfy the negative criteria of the statute. NEGLIGENCE 31-2-9277 Todd Connors v. Alecia Wingerter, et al.; Erica Chapman v. Alecia Wingerter, et al., App. Div. (13 pp.) Trial judge correctly denied plaintiff s motion for a new trial after jury awarded plaintiff no damages, since the record supports the judge s conclusion that the jury could have plausibly decided to discredit plaintiff s testimony regarding his alleged injuries. PHYSICIAN/PATIENT 29-2-9278 Estella B. Matawaran, et al. v. James P. Thompson, M.D., et al., App. Div. (9 pp. — includes concurring opinion) Since plaintiffs failed to prove the required emotional distress so severe that it resulted in physical manifestations or that it destroyed their basic emotional security, they failed to make out a prima facie case of negligent infliction of emotional distress for the stillbirth of their child, and their case was properly dismissed. TORTS — DEFAMATION — QUALIFIED IMMUNITY 36-2-9279 Vinnie M. Feggans v. Allen Billington, et al., App. Div. (19 pp.) Despite plaintiff s allegations that she was defamed by her co-workers, the statements made by them in their petition to the employer are entitled to protection from suit by a qualified immunity regardless of whether the statements were defamatory, and summary judgment should not have been denied to the co-workers. [Approved for publication Jun. 18, 1996.] TORTS — TRESPASS 36-2-9280 Patricia McClain, etc., et al. v. Dujets Tree Service etc., et al., App. Div. (27 pp.) Because the defendants were intentional trespassers on decedent s land, they are responsible for all of the harm that resulted from their trespassing activity, even if the harm is remote or attenuated, and were properly found liable for decedent s death when she collapsed into a coma and subsequently died after witnessing the defendants cutting down her tree. WILLS, ESTATES AND TRUSTS 38-2-9281 Claire Bogan v. Judson M. Stein, et al., App. Div. (6 pp.) Trial judge properly dismissed plaintiff s complaint against executors of her deceased paramour s estate — attempting to enforce decedent s alleged promises to take care of her for the rest of her life — since the factual predicates underlying the so-called palimony rationale were conspicuously absent. WORKERS COMPENSATION 39-2-9282 Tadeusz Tarapacki v. Diversified Contracting Inc. v. N.J. Mfrs. Ins. Co., et al., App. Div. (13 pp.) In coverage suit for workplace injury, insurer was correctly granted summary judgment on the basis that Pennsylvania workers compensation coverage had been properly removed from employer s policy by endorsement prior to plaintiff s accident in Pennsylvania, and plaintiff was entitled only to benefits pursuant to the New Jersey statute. WRONGFUL DEATH 40-2-9283 John Grasmick Jr., etc. v. Charlene M. Turner, et al., App. Div. (7 pp.) Since a common carrier must exercise a greater degree of care for a passenger known to be intoxicated, in light of his inability to protect himself from danger, summary judgment should not have been granted to bus company in wrongful death suit alleging that decedent was killed by an automobile after being let off of a bus in a remote area not designated as a bus stop. CRIMINAL LAW AND PROCEDURE 14-2-9284 State v. Christopher D Esposito, App. Div. (6 pp.) In a case where defendant saw traffic blocked ahead of him, and cut through a gas station to proceed along a different route, not realizing that the traffic blockage was caused by a sobriety checkpoint, the trooper had no articulable basis to stop defendant s car, since the crossing of the gas station, a civil trespass, did not reach the criminal level of defiant trespass; therefore subsequent conviction for refusing to take a Breathalyzer test is reversed. 14-2-9285 State v. Eric Caldwell, App. Div. (6 pp.) Trial court erred in granting defendant s motion to suppress drug evidence, since the detective s reliance upon a warrant, although later found to be invalid, gave him reasonable cause to stop and question the defendant. CRIMINAL LAW/PROCEDURE — ARMS FORFEITURE — DOMESTIC VIOLENCE 14-2-9286 State v. Charles Volpini, App. Div. (20 pp.) The judge erred in dismissing state s application, under the Prevention of Domestic Violence Act, for a forfeiture hearing regarding certain firearms seized from defendant, placing too much reliance on the fact that the victim decided to dismiss the underlying domestic violence complaint and thus acting in contravention of the spirit of maximum protection controlling the Act. [Approved for publication Jun. 18, 1996.] FEDERAL COURT CASE INTELLECTUAL PROPERTY 53-7-9287 Otto Kuczynski v. Daxton Indus. Ltd., et al., U.S. Dist. Ct. (7 pp.) In a case where plaintiff, owner of a clothing trademark, sues both the clothing manufacturer, for violating a rescinded licensing agreement, and retail store, for selling the infringing clothing, retailer s motion to dismiss manufacturer s cross-claim for joint-tortfeasor contribution is granted, since retailer would be entitled to indemnification from manufacturer for any infringement of plaintiff s trademark, which bars manufacturer from seeking contribution.

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