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Vol. 4 No. 98 – May 22, 1996 STATE COURT CASES INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-8985 N.J. Mfrs. Ins. Co. v. Robert Kossakowski, App. Div. (8 pp.) Because neither the trial court in an earlier suit nor the arbitration panel made a determination as to UIM coverage limits under policies held by the defendant, the trial court misapplied the doctrine of res judicata in dismissing plaintiff s complaint for such benefits. INSURANCE — VERBAL THRESHOLD 23-2-8986 Lynn M. Chapman v. Patience R. Okotie, et al., App. Div. (2 pp.) Summary judgment was properly granted to defendants since plaintiff’s proofs did not causally connect her specific injuries to the subject accident, especially in light of the fact that she had been involved in four other accidents for which she received chiropractic treatments from the same doctor. LABOR/EMPLOYMENT — TITLE VII — L.A.D. 25-2-8987 Domenico Rotella v. Sunshine Biscuits Inc., App. Div. (6 pp.) The court correctly entered summary judgment dismissing plaintiff s claims for retaliatory and discriminatory discharge and for intentional infliction of emotional distress, since plaintiff failed to establish causation between the allegedly retaliatory and discriminatory discharge, and his protected activity — filing an unlawful discrimination claim — some five months earlier. LABOR/EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8988 William J. Malvey v. Bd. of Review, et al., App. Div. (4 pp.) Where attorney communicated his resignation to office manager, who had no authority to accept it, and then withdrew the resignation before the employer accepted it, and where employer, after having learned of the proffered resignation, permitted the attorney to work for an additional two weeks, the attorney was improperly denied unemployment benefits. 25-2-8989 Karen Galloway v. Bd. of Review, App. Div. (4 pp.) Although restaurant manager made clearly inappropriate and insensitive remarks to waitress, causing her to leave work, the review board correctly found that the incident was an isolated event, and, in view of the owner s corrective admonishment of manager and owner s request that waitress return to work, there was no reason for waitress to expect that the conduct would recur; therefore, she was properly denied unemployment benefits when she failed to return to work. LAND USE 26-2-8990 Gary P. Escandon, et al. v. Borough of Mantoloking Planning Board, etc., App. Div. (5 pp.) (1) The municipality erred in denying landowners application for a height variance in building their new home, since the old structure on the same site was nonconforming in a number of ways, and the proposed new structure would conform in every way but height, and the new structure’s height would be lower than the prior structure. (2) The planning board erroneously considered the variance application under subsection (c) of N.J.S.A. 40:55D- 70 and the matter is remanded for reconsideration under the proper subsection (d). 26-2-8991 L & L Assocs. Inc., etc. v. Town of West N.Y., et al., App. Div. (5 pp.) The Law Division correctly applied the doctrine of equitable estoppel and rescinded a stop construction notice issued by municipality, and confirmed prior issuance of building, electrical, plumbing and fire subcode permits for plaintiff s construction of an ambulatory health care facility. PHYSICIAN/PATIENT 29-2-8992 Dorothy Letts, etc. v. Benny Riviello Jr., D.O., et al., App. Div. (14 pp.) Judgment against doctor in medical malpractice case is reversed, since the judge erroneously allowed introduction of evidence of a health department investigation which had questionable relevancy and yet had the capacity to affect the jury s consideration of a critical issue. Prejudicial error also exists in the trial court s treatment of the issue of informed consent. PRODUCT LIABILITY 32-2-8993 Cas Mahle-White, et al. v. Rocky Boots, etc., et al., App. Div. (7 pp.) The trial court erred in dismissing plaintiffs complaint since defendants had plaintiffs expert s report four months before trial, even though it was not provided after the time set forth in the discovery order. WORKERS COMPENSATION 39-1-8994 John R. Bunk v. Port Auth. of N.Y. and N.J., Supreme Ct. (24 pp.) N.J.S.A 34:15-43 of the Workers Compensation Act — which limits workers compensation benefits of public employees receiving a disability pension for the same injury — is applicable to petitioner as an employee of the bi- state agency, Port Authority of N.Y. and N.J.; therefore, petitioner, who is receiving a disability pension from New York state, is precluded from collecting New Jersey workers compensation benefits for the same disability. FEDERAL COURT CASES CIVIL RIGHTS 46-7-8995 Intesar H. Zaidi v. Peter S. Hamerslag, et al., U.S. Dist. Ct. (23 pp.) Where plaintiff claims that defendants violated his civil rights by making certain libelous statements about him to the jury, the court, the press and corrections supervisory officers — in connection with criminal proceedings brought against plaintiff — defendants motions to dismiss are granted, since plaintiff has not alleged the deprivation of any constitutional right, and defendants also have valid immunity defenses. CONTRACTS — ILLEGALITY 11-7-8996 Mediterranean Invs. N. and S. Co., et al. v. Mediterranean Towers, et al., U.S. Dist. Ct. (11 pp.) In plaintiffs case alleging that defendants breached an oral contract not to enforce certain notes and not to pursue plaintiffs on guaranties — since these notes were given as part of a sham capital transaction relating to conversion and sale of cooperative apartments designed to defraud the I.R.S. — defendants motion to dismiss is granted, since the plaintiffs knowingly participated in a tax fraud scheme and the contract is therefore unlawful and void as against public policy. LABOR/EMPLOYMENT — DISABILITIES 25-7-8997 William Failla v. City of Passaic, et al., U.S. Dist. Ct. (21 pp.) Former police chief — who refused to transfer police captain off the night shift, where his bad back was aggravated — is granted summary judgment dismissing captain s complaint under the Americans With Disabilities Act, since there is no individual employee liability under the ADA; the court, however, cannot grant motion to dismiss allegations under the N.J. Law Against Discrimination, since individual liability can be found for failure to reasonably accommodate. SECURITIES 50-7-8998 Ilya Boguslavsky v. Barbara Hosman, et al., U.S. Dist. Ct. (11 pp.) The court dismisses plaintiff s complaint — asserting that the defendant National Association of Securities Dealers enabled co-defendant securities dealer to violate regulations by failing to properly investigate the dealer and shut it down — since plaintiff has failed to exhaust his administrative remedies by following mandatory NASD review. Additional opinion approved for publication: The April 30th Alert contained the case of Henry Pullen v. Twp. of South Plainfield Pl. Bd., et al., DDS No. 26-2-8742, which was approved for publication on that date. The court has now approved the underlying Law Division opinion, which will be designated as DDS No. 26-3-8999 and contains 15 pages.

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