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Vol. 4 No. 108 – JUNE 6, 1996 STATE COURT CASES CIVIL RIGHTS 46-2-9134 Irene Ahart, et al. v. State of N.J., et al., App. Div. (13 pp.) Police officer had probable cause to arrest plaintiff for obstructing justice when she failed to respond to officer’s and social workers’ requests to produce an elderly neighbor who plaintiff was keeping in her house; therefore the officer was entitled to qualified immunity and the judge properly granted the state’s motion for summary judgment on plaintiff’s civil rights claim. CONTRACTS 11-2-9135 Ivan B. Steiner v. Nazim Sheji, et al., App. Div. (3 pp.) In case involving defendant’s defective masonry work on plaintiff s front steps, the trial court correctly awarded plaintiff the $150 it cost him to have treads repaired and rejected (1) damage claim for aesthetic complaints, (2) structural soundness allegations due to the hearsay nature of plaintiff’s proofs, in the form of a home inspector’s letter, and (3) plaintiff’s claim for reimbursement of a building permit, a fine and railing expenses. CONTRACTS — ENTIRE CONTROVERSY 11-2-9136 Tami-Githens Inc., etc. v. Gilbane Bldg. Co., et al., App. Div. (6 pp.) Subcontractor’s failure to assert claims for monies allegedly due from general contractor and owner in prior litigation — wherein subcontractor defended those parties and indemnified them pursuant to a general release — are barred by the entire controversy because the prior litigation implicated the release which the subcontractor challenges in the present litigation. DEBTOR/CREDITOR — ENTIRE CONTROVERSY 15-2-9137 Estate of Alexander D. McKee, et al. v. Waterview Landing Assoc., etc., et al., App. Div. (9 pp.) Where plaintiffs were sued by defendants for money damages due to their default on a note and settled that litigation by giving defendants a deed in lieu of foreclosure, they are now barred by the entire controversy doctrine from pursuing their current suit against the same defendants and others based on substantially the same facts, and the naming of additional parties as defendants does not change this result. FAMILY LAW 20-2-9138 Nancy G. Buwen v. Robert Buwen, App. Div. (2 pp.) Judge correctly observed that defendant had not been working due to disability at the time of the divorce when wife was ordered as primary residential parent, therefore he had not shown a change of circumstances in his application to change primary residential custody to himself, even though the reason for his not working — retirement — was different. INSURANCE 23-2-9139 Harleysville Ins. Co. of N.J. v. Julia Matos, App. Div. (4 pp.) In a coverage case where jury found that insurer was not responsible to provide coverage to insured who had violated her auto policy’s condition’s by inflating bills she submitted, reversal is required since the judge wrongly excluded as hearsay insured’s crucial testimony that she was told to change the bills by medical center employees. INSURANCE — DUTY TO DEFEND 23-2-9140 Kelly Burke, etc., et al. v. Gen. Accident Ins. Co., App. Div. (5 pp.) Trial court erroneously overlooked the distinction between an occurrence policy such as the one in issue here and a claims made policy, and court’s decision ordering insurer to defend insured in underlying litigation is reversed. LABOR AND EMPLOYMENT 25-2-9141 Mouna Sakhat v. Meadox Medicals Inc., App. Div. (5 pp.) Motion judge correctly granted summary judgment to employer on plaintiff’s wrongful termination claim, concluding that plaintiff was an employee at will who was discharged because she was seen working for another employer while on disability leave from defendant employer, and that defendant’s employee manual did not create a right to be discharged only for cause. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9142 In the Matter of Tia H. Boyan, App. Div. (7 pp.) Record did not support claimant’s contentions either that she faced a discharge from her employer or that the conditions of her employment were detrimental to her health and compelled her to leave her employment, therefore she was properly denied unemployment compensation benefits when she resigned from her position. LANDLORD/TENANT — DEFAULT JUDGMENT 27-2-9143 Marcella Alexander, et al. v. Twp. of Pennsauken, et al., App. Div. (6 pp.) Where defendant did not appear at firm trial date — which was set after plaintiffs’ repeated fruitless trips from Florida to attend previously aborted trial dates — and where defendant has failed to show existence of a meritorious defense, the judge’s refusal to vacate default judgment is affirmed. LANDLORD/TENANT — MOBILE HOME PARKS 27-3-9144 Garden Park Mobile Home Owners Ass’n, et al. v. Garden Park Assocs., etc., Law Div. (12 pp.) The court holds that (1) mobile home owners’ association has standing to bring suit against landlord on behalf of its members, and (2) since it is clear that a jury could find that mobile home park landlord’s imposition of conditions on resale of mobile home units — removal of oil tanks and conversion to gas heat — were unreasonable, landlord’s motion for summary judgment is denied. [Approved for publication Jun. 4, 1996.] MUNICIPAL LAW — PENSIONS 30-2-9145 Dennis Ardell v. City of Ocean City, et al., App. Div. (11 pp. — includes dissent) N.J.S.A. 43:13-23 does not provide for retroactive pension benefits to date of lifeguard’s disability, and municipality correctly complied with terms of consent order awarding lifeguard pension from date his disability was certified medically. NEGLIGENCE — FUNERAL PROCESSIONS 31-2-9146 Michael Giantonnio v. Geraldine Taccard, et al., App. Div. (15 pp.) In certain circumstances, a funeral home may owe the duty to refrain from creating an unreasonably dangerous situation for those participating in its funeral procession, and the standard of care with which the funeral home must comply is a component or element of the plaintiff’s cause of action that must be established by reliable expert evidence; plaintiff’s case was fatally flawed by his failure to present expert testimony, and summary judgment in favor of funeral home is affirmed. [Approved for publication Jun. 6, 1996.] NEGLIGENCE — WORKPLACE INJURY 31-2-9147 Katalin Poor v. Gen. Motors Corp., App. Div. (3 pp.) The trial judge properly determined that plaintiff’s expert’s conclusion — that employer should have appreciated and anticipated the injury risk resulting from the redesign of the guard on a trim saw — fell short of meeting the intentional wrong exception to the exclusivity of the workers’ compensation remedy, and summary judgment in favor of employer is affirmed. REAL ESTATE — SETTLEMENTS 34-2-9148 Raymond Banbor, et al. v. Zuzanna Banbor, et al. v. Henry E. Rzemieniewski, App. Div. (6 pp.) In a family dispute over commercial real estate, where a purported settlement was challenged, the judge erred in dismissing the case as settled without holding a plenary hearing at which the parties and their attorneys could have testified as to what was, and was not, contemplated by the settlement. CRIMINAL LAW AND PROCEDURE — FORFEITURES 14-2-9149 State v. One (1) 1992 Ford Mustang, etc., App. Div. (5 pp.) Judge’s credibility findings are entitled to deference, and therefore the panel upholds his determination that mother was owner “in name only” of vehicle used in son’s drug offense, and that son was the primary user and had unlimited control of the car, and forfeiture was appropriate.

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