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Vol. 4 No. 104 – MAY 31, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-9071 Mary E. Karpovich v. John M. Barbarula, et al., App. Div. (11 pp.) Where plaintiff sued and settled conversion claim with her investment adviser, her failure to join the attorneys responsible for handling one of the loans the investment adviser made bars her subsequent malpractice claim against those attorneys under the entire controversy doctrine. CONTRACTS — BAILMENTS 11-2-9072 Hilda Pierce v. Trenton Lutheran Hous. Corp., App. Div. (3 pp.) Judge erred in awarding damages to tenant against apartment building owner — for damages to the tenant’s car in free parking lot provided by the owner — since there was no proof that owner exercised any control over tenant’s automobile, or that owner was in any way negligent. CONTRACTS — U.C.C. — CONSUMER FRAUD 11-2-9073 David B. Follender, et al. v. Maurice Bernstein, App. Div. (35 pp.) Judge correctly held that interior designer breached contract with homeowners, and that Consumer Fraud Act applied, however, he erred in applying the act to homeowners’ claims against the designer except those dealing with the designer’s pricing methods. Judge also erred in finding that homeowners were entitled to relief on their U.C.C. warranties breach claim. INSURANCE 23-2-9074 Marvaldi Trucking Co. v. Liberty Mut. Ins. Co., et al., App. Div. (12 pp.) In a coverage suit involving plaintiff’s canceled policies, the court, in determining that plaintiff’s insurance agent did not act negligently, failed to consider several liability theories, such as the extent to which the agent knew or should have known of plaintiff’s obligation to file a certificate of insurance and the agent’s responsibility for misinformation in the insurance application, and judgment of no cause against the agent is reversed. INSURANCE — SUBROGATION 23-2-9075 TIG Ins. Co., etc. v. Richard A. Jenkins, et al., App. Div. (3 pp.) Where car owner testified unequivocally that driver of his vehicle at the time of an accident was using the car without owner’s permission and that he had signed a criminal complaint against that person for theft of the vehicle, there was no evidence that would permit a jury to find that the driver was acting as the agent of the owner, and trial court correctly granted owner’s motion for summary judgment on insurer’s subrogation claim. LABOR/EMPLOYMENT — AGE DISCRIMINATION 25-2-9076 Noimon Fountoukidis, et al. v. Am. Bureau of Shipping, App. Div. (14 pp.) Motion judge correctly granted employer summary judgment, determining that plaintiff was not a victim of age discrimination victim but of corporate restructuring, and that plaintiff had voluntarily chosen to elect retirement rather than a transfer. LAND USE 26-2-9077 Musafumi Asai, et al. v. A&P Tea Co., et al., App. Div. (5 pp.) A&P was properly granted use variance for supermarket over objectors’ challenge since (1) it sustained its burden of demonstrating, by the “enhanced quality of proof” required by Medici v. BPR Co., 197 N.J. 1 (1987), that the variance was consistent with the intent and purpose of the municipality’s master plan and zoning ordinance, and (2) the considerations of aesthetics and public safety which the board of adjustment cited as the special reasons for the variance were not arbitrary, capricious or unreasonable. NEGLIGENCE — AUTOMOBILES — UNKNOWN DRIVER 31-2-9078 Edith Menoken v. Kanta Chander, et al., App. Div. (9 pp.) Although it is inexplicable that plaintiff’s attorney made absolutely no effort to determine the identity of the driver of defendant’s vehicle before the expiration of the statute of limitations, and failed to sue the driver by use of the fictitious driver technique, the conduct of defendant’s insurer does not evoke equitable or sympathetic considerations either, since the insurer quite purposefully waited until after the statute’s expiration to move for summary judgment on the car owner’s behalf by disclosing the driver’s identity; therefore plaintiff is entitled to the benefit of a “relation back,” and summary judgment granted to the driver on limitations grounds is reversed. PUBLIC EMPLOYEES — POLICE — EXAMINATIONS 33-2-9079 Adelino Benavente, et al. v. N.J. Dep’t of Personnel and Merit Sys. Bd., App. Div. (6 pp.) Since police officers have shown that the oral component of sergeant’s promotional examination — watching and discussing a videotape — was administered differently by various examiners, and that there were no specific evaluation standards for the candidates’ responses to the video, the examination process must be subject to further scrutiny on remand by way of a “contested-case hearing.” REAL ESTATE — MULTIPLE DWELLINGS 34-2-9080 Bureau of Hous. Inspection, etc. v. 106 1/2 – 120 Peabody Pl., etc., App. Div. (6 pp.) Since neither an administrative law Judge’s initial decision, nor the final decision of the state Commissioner of Community Affairs, makes any factual findings that would support their conclusion that the structure and ownership of the subject property requires the unit to be considered a multiple dwelling under the purview of the Bureau of Housing Inspection, matter is remanded. TAXATION 35-2-9081 Sutton Warehousing Inc. v. Director, N.J. Div. of Taxation, App. Div. (14 pp.) Tax court erred when it declared director’s Corporate Business Tax assessment upon plaintiff null and void by virtue of the entire controversy doctrine, since the application of the doctrine under the circumstances would improperly impede the director’s ability to administer his statutorily mandated responsibilities. [Approved for publication May 31, 1996.] TORTS — TRADE LIBEL 36-2-9082 Ian David Kass v. Great Coastal Express, Inc., App. Div. (24 pp.) In a case where plaintiff alleges that his former employer was guilty of trade libel — in giving him bad references to prospective employers — the judgment in favor of the employer must be reversed since the special interrogatories regarding the qualified privilege were incomplete, and the court appends appropriate sample interrogatories to the opinion. [Approved for publication May 31, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-9083 State v. John Troy Baker, App. Div. (5 pp.) Since assigned counsel did not represent that he conferred with defendant or inspected the trial record, and since he did not submit a brief or make any argument on defendant’s behalf, defendant is entitled to remand to determine whether he was provided with effective assistance of counsel in his post-conviction relief application under State v. Clark, 260 N.J. Super. 559 (App. Div. 1992). 14-2-9084 State v. Levi S. Lusby, App. Div. (3 pp.) Circumstances were not sufficient to justify defendant’s arrest without a warrant, since he was merely drinking in public, but was not drunk, unruly or disrespectful of the police, and was not disturbing the peace. 14-2-9085 State, in the Interest of J.P., App. Div. (6 pp.) Reversal of juvenile’s conviction is required because: (1) the trial court’s numerous references to the juvenile’s failure to present evidence on his own behalf improperly shifted the burden of proof onto the juvenile and violated his right to remain silent, presumption of innocence, and right to a fair trial, and (2) the trial court’s application of an adverse inference pursuant to Clawans because juvenile’s mother did not testify and rebut the state’s evidence, denied the juvenile due process of law. FEDERAL COURT CASES CIVIL RIGHTS 46-7-9086 Louis Aveta v. Borough of Fairview, et al., U.S. Dist. Ct. (11 pp.) Although defendants assert that plaintiff’s political beliefs and actions played no role in his demotion, they have not proved their innocent motives with such conclusiveness that the question should not be put to a jury; therefore, defendants’ summary judgment motion is denied as to the borough administrator involved in the demotion decision, however, summary judgment is granted to the other defendants, since plaintiff has not alleged that these defendants took any improper action against him. LABOR/EMPLOYMENT — EDUCATION — RACIAL DISCRIMINATION 25-7-9087 Janice P. Stewart v. Rutgers, the State Univ., et al., U.S. Dist. Ct. (46 pp.) Although African-American plaintiff has established a prima facie racial discrimination case against university for failure to grant her tenure, she has failed to show the pretext in the university’s proffered legitimate, nondiscriminatory reason for denying her tenure — that her scholarship is limited, has not been recognized by significant peer-reviewed support, and has not demonstrated a substantial national impact on developments in her field — and therefore her case is dismissed. PRODUCT LIABILITY — ENTIRE CONTROVERSY 32-7-9088 Robert T. Hulmes v. Honda Motor Co., Ltd., et al. v. Nicholas J. Hulmes; Sherry Hulmes v. Honda Motor Co., Ltd., et al. v. Nicholas J. Hulmes, U.S. Dist. Ct. (29 pp.) A voluntary, but admittedly inadvertent, dismissal with prejudice — one week after the filing and before the complaint was served or discovery was conducted — of a state court “John Doe” action in which only a fictitious defendant was named, does not amount to a “prior action” within the meaning of the entire controversy doctrine that bars this suit against a manufacturer of an allegedly defective product not named or otherwise identified in the original “John Doe” complaint. [For publication.]

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