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Vol. 4 No. 110 – JUNE 10, 1996 STATE COURT CASES CIVIL PROCEDURE 07-2-9157 George Clarke, et al. v. Teresa Eichorn, App. Div. (6 pp.) A reversal and remand for a new trial does not envision a new round of discovery, and therefore the trial judge did not abuse his discretion in compelling plaintiffs to proceed to trial on liability, denying their new counsel’s adjournment request, since the request was based on speculative theories which might or might not have borne fruit. DEBTOR/CREDITOR — FORECLOSURE 15-2-9158 Joseph Manzo v. Shawmut Bank, N.A., etc., et al., App. Div. (15 pp.) A mortgage granted in settlement of second mortgage foreclosure action is entitled to priority over a mortgage that was recorded before it, but after the filing of the lis pendens in the underlying litigation and during the effective term of that lis pendens. [Approved for publication Jun. 10, 1996.] ENVIRONMENT 17-2-9159 Camden County y. M.U.A. v. N.J. D.E.P., App. Div. (3 pp.) The D.E.P. did not act improperly in using sampling data obtained under one permit to establish a violation under another permit, since the permit language specifically authorized the use of more frequent monitoring results in assessing whether permit limits were exceeded. FAIR HOUSING 41-2-9160 In the Matter of the Adoption of N.J.A.C. 5:93-1 to -13.4, App. Div. (17 pp.) The court upholds regulations adopted by the Council on Affordable Housing, rejecting township’s contentions that they are unreasonably vague, violate the Fair Housing Act, and represent an unwarranted intrusion on the planning and zoning prerogatives vested in municipalities under the Land Use Law. FAMILY LAW 20-2-9161 Peter Catelli, Jr. v. Marcenia Catelli, App. Div. (4 pp.) The trial judge erred in determining that plaintiff was responsible for repairing water damage to the marital residence, since there was a factual dispute about the origin and extent of the water damage, and the parties’ intention regarding the condition when they settled their divorce. INSURANCE 23-2-9162 Medical Inter-Ins. Exch. of N.J., etc., et al. v. Drew Karpinski, etc., et al., App. Div. (7 pp.) Commissioner of Insurance erred in denying plaintiffs’ refund application for interest paid on contributions earlier refunded by the Department of Insurance after the Legislature exempted plaintiffs from assessments to the N.J. Property Liability Insurance Guarantee Association for shortfalls under the Fair Automobile Insurance Reform Act, since the monies remained plaintiffs’ property and didn’t belonged to the state. 23-2-9163 Richard A. Gephart, et al. v. Rider Ins. Co., App. Div. (3 pp.) Summary judgment dismissing plaintiffs’ coverage action is affirmed, since the policy by its terms clearly expired at 12:01 a.m. on the date of the accident, which occurred at 6:00 p.m. LABOR/EMPLOYMENT — EVIDENCE 25-2- 9164 In the Matter of the Application of the Port Authority of N.Y. and N.J. arising out of State v. G.M., App. Div. (6 pp.) The court dismisses as untimely employer’s appeal from judge’s decision prohibiting it from using — for credibility purposes in disciplinary proceeding — a letter written by employee in furtherance of his criminal pre-trial intervention proceedings, where employee had admitted to lying. LABOR/EMPLOYMENT — PUBLIC POLICY — CONFLICT OF INTEREST 25-1-9165 John W. Mac Dougall v. James M. Weichert, et al., Supreme Ct. (109 pp.) The issue of whether realtor’s termination of salesman violated public policy and conflict of interest principles when the termination allegedly was based on a threat by an important client of the realtor — the threat that the client would cease using realtor’s services because of the salesman’s vote, as a member of a governing body, to prohibit street parking where the client’s business was located — therefore defendants should not have been granted summary judgment. LABOR/EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9166 Frank T. Alois v. Bd. of Review, etc., App. Div. (4 pp.) Although cosmetology is not a “labor demand occupation” on the N.J.O.I.C.C. occupation demand list, the applicant should not have been denied additional benefits during training for this position based upon that reason alone, since he might have been entitled to such benefits if approved by a qualified job counselor. MUNICIPAL LAW 30-2-9167 Fort Lee Tenants Ass’n Inc. v. Mayor and Council of the Borough of Fort Lee, etc., App. Div. (8 pp.) The court affirms a Law Division judgment invalidating an amended borough rent control ordinance on the ground that the councilman who cast the decisive vote in favor of the ordinance was a landlord who had a disqualifying interest. PRODUCT LIABILITY — AIR BAGS 32-2-9168 Meryl L. Finkelstein, et al. v. Wayne Acura, et al., App. Div. (8 pp.) Motion judge correctly dismissed plaintiff’s case, rejecting the expert’s net opinions regarding car manufacturer’s failure-to-warn plaintiff that sitting too close to the steering wheel could cause injury during air bag deployment, and that air bags are not supposed to cause injury in the absence of a manufacturing defect. REAL ESTATE — EASEMENTS 34-2-9169 Nelson Hernandez, et al. v. Ines Jaramillo, App. Div. (7 pp.) The court construes the limitation on the use of a driveway easement to “ingress and egress … to and from the garage built or to be built” as necessary to assure continued residential use, rather than commercial use, of the property, and since there is no undue additional burden on plaintiffs’ lot as the result of defendant’s use of the right of way, the judge erred in extinguishing the limitation in the easement because defendant did not construct the garage. FEDERAL COURT CASES BANKING 06-7-9170 Centennial Assoc., Ltd. Ptshp., etc., et al. v. F.D.I.C., et al., U.S. Dist. Ct. (16 pp.) Under the mandates of the Financial Institutions Reform and Recovery Act, (1) plaintiffs’ claims for monetary damages are dismissed since plaintiffs have not pursued the appropriate administrative remedies through the receiver’s administrative claims review process, and (2) plaintiffs’ claims for injunctive relief, specific performance and recission are likewise dismissed because the court does not have jurisdiction over such claims. [For publication.] CIVIL RIGHTS — ABUSE OF PROCESS — MALICIOUS PROSECUTION 46-7-9171 Richard Corcoran Jr. v. Herbert Tate Jr., et al., U.S. Dist. Ct. (11 pp.) (1) The court denies policewoman’s motion for reconsideration of its denial of her motion for summary judgment — in civil rights case arising out of the Glen Ridge rape prosecution — since she has not identified an intervening change in the controlling law on absolute immunity nor has she submitted any new, previously unavailable evidence, and, further, her qualified immunity arguments cannot be considered as they were not raised in the original motion to dismiss. (2) Defendants’ counsel fees motion also is denied. CONTRACTS — CIVIL RICO 11-7-9172 Tony Gomes Constr. Co. Inc. v. J.P. Horan Inc., et al., U.S. Dist. Ct. (14 pp.) Because the federal criminal RICO prosecution of the defendants was based upon a completely different pattern of racketeering activity than is plaintiff’s claim against defendants, defendants are not collaterally estopped from denying liability in this civil RICO matter, and, since plaintiff has not been able to produce any reliable evidence to support the numerous charges leveled against defendants after six years of litigation, the defendants’ motion to dismiss is granted. INSURANCE — ENVIRONMENT — DUTY TO DEFEND 23-7-9173 J & J Metals Inc. v. St. Paul Fire & Marine Ins. Co., et al., U.S. Dist. Ct. (23 pp.) Although none of the traditional abstention doctrines applies to this case, the court will stay the matter via an administrative termination in favor of a pending state court coverage action, since all of the claims can satisfactorily be adjudicated in state court. LABOR/EMPLOYMENT — LAW AGAINST DISCRIMINATION 25-7-9174 Donald Illingworth v. Nestle U.S.A., Inc., etc., U.S. Dist. Ct. (24 pp.) An employer’s knowledge of an employee’s handicap is an element of the plaintiff’s prima facie case of handicap discrimination, and without such knowledge, the prima facie case fails and the employer cannot as a matter of law, be liable for handicap discrimination. [For publication.] A Daily Reporter of N.J. Court Decisions

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