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Vol. 4 No. 99 – May 23, 1996 STATE COURT CASES ATTORNEYS — FEES — PREVAILING PARTY 04-3-9000 H.I.P., etc. v. K. Hovnanian at Mahwah VI Inc., etc., et al., Law Div. (21 pp.) Where plaintiff sought handicapped accommodations in construction of condominium complex, and achieved via settlement a large portion of what it had hoped for, it is a prevailing party and merits attorneys fees under the Fair Housing Act, the Americans with Disabilities Act and the New Jersey Law Against Discrimination. [Approved for publication May 21, 1996.] ATTORNEY/CLIENT 04-2-9001 Beckwith & Scolnick, Esqs. v. Odell Gaskin, App. Div. (5 pp.) Judge correctly denied plaintiff law firm any recovery on its suit for legal fees, finding that it had breached its duty to client, but the judge also correctly denied the client any damages on his malpractice counterclaim, since there was insufficient proof that the breach caused any loss to the client. CIVIL PROCEDURE — CHOICE OF LAW 07-2-9002 Carl Arendt, et al. v. Samuel Ferguson, et al., App. Div. (3 pp.) While New Jersey plaintiffs could have filed a timely action in New York — the site of the accident — within the three-year New York statute of limitations, but chose to file in New Jersey, the motion judge correctly applied the New Jersey two-year statute of limitations and dismissed the case. ENVIRONMENT 17-2-9003 In the Matter of the Request for an Adjudicatory Admin. Hearing by the Borough of Pt. Pleasant, App. Div. (6 pp.) The D.E.P. commissioner was not arbitrary, capricious or unreasonable in denying municipality s request for an adjudicatory hearing — on supermarket s application for approval to fill an acre of freshwater wetlands for construction — since the municipality does not have the kind of particularized interest that would entitle it to such a hearing. FAMILY LAW — PENSIONS 20-4-9004 In the Matter of the Estate of Peter Nicholas Lanken, Deceased, Chancery Div. (8 pp.) In a case where decedent failed to change his pension plan beneficiary after his divorce and before his death, and the estate argues that ex-wife waived her right to the benefits under the divorce judgment’s language, the court concludes that an ERISA anti-alienation provision applies to beneficiaries as well as plan participants, and wife did not effectively disclaim her interest in her ex-husband s pension plan by her general waiver in the judgment of divorce. [Approved for publication May 21, 1996.] INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-9005 Gabriel Greenberg v. Progressive Casualty Ins. Co., App. Div. (9 pp.) Where jury awarded plaintiff $203,000 for personal injuries sustained in an auto accident, and the tortfeasor had liability coverage more than sufficient to cover the award, the motion judge correctly dismissed plaintiff s complaint against his UIM carrier, holding that his damages had been fixed by the jury award, and plaintiff was collaterally estopped from trying his damages twice. (For related decision, see 31-2-9009 below.) INSURANCE — VERBAL THRESHOLD 23-2-9006 Enoch Kliedermacher, et al. v. James Benton, App. Div. (4 pp.) Although plaintiff unquestionably was injured, his injury was not permanent and resolved after six months of conservative treatment, and findings of spasm did not recur after the initial manifestation; therefore, summary judgment was properly granted to defendant. JURISDICTION 24-2-9007 Citibank, N.A. v. Estate of John A. Simpson, et al. v. Circle Consulting Group Inc., et al., App. Div. (15 pp.) In personam jurisdiction over New York law firm partnership was not obtained by personal service in New Jersey on a New Jersey-resident partner having no connection with the subject representation. Whether the law firm can be sued in New Jersey by the exercise of long-arm jurisdiction depends, therefore, on whether as a matter of fact and law its contacts were sufficient to support its acquisition of specific jurisdiction, and, since the record is inadequate to make this determination, matter must be remanded. [Approved for publication May 23, 1996.] LAND USE 26-3-9008 Friends of the Dinky Woods, et al. v. Twp. of West Windsor, et al.; Mercer Mall Property Group v. West Windsor Twp., et al., Law Div. (13 pp.) In calculating the area required to lodge a valid protest to a proposed zoning change under N.J.S.A. 40:55D-63 — which requires that the owners of 20 percent of certain surrounding land participate in the protest for it to be valid — the court concludes that only the area encompassed within a 200- foot perimeter of the land to be rezoned is to be considered. [Approved for publication May 21, 1996.] NEGLIGENCE — ATTORNEYS FEES AND INTEREST 31-2-9009 Gabriel S. Greenberg v. Gary D. Lewis, App. Div. (7 pp.) Although the court affirms the jury verdict for plaintiff, it reverses the denial of counsel fees to plaintiff s attorney from plaintiff s insurer, since, even though the insurer later decided to retain its own attorneys, that does not detract from plaintiff s efforts in successfully obtaining a jury verdict award for medical expenses, which resulted in the insurer receiving reimbursement it otherwise would not have obtained. The court also reverses denial of prejudgment interest and awards it to insurer. (For related decision, see 23-2-9005 above.) NEGLIGENCE — TORT CLAIMS ACT — LATE NOTICE 31-2-9010 Barbara Queensbury v. Camden Hous. Auth., App. Div. (6 pp.) Since plaintiff did not suffer a catastrophic injury, was ambulatory, living at home and capable of visiting her physicians to obtain medical attention, she failed to offer extraordinary circumstances to excuse her failure to provide timely written notice of her intent to file a tort claim, and her case should have been dismissed on defendant s motion. PARENT/CHILD 28-2-9011 In the Matter of the Guardianship of R.S., a Minor, App. Div. (6 pp.) Biological mother s parental rights were properly terminated since she was clearly unable to perform the role of custodial parent due to her chronic mental problems, and such inability endangered child’s welfare even though there was no intentional abuse. PHYSICIAN /PATIENT 29-1-9012 Barbara Anderson v. Dr. Joseph Picciotti, et al., Supreme Ct. (26 pp.) When a defendant requests a Scafidi-type causation instruction in a case where the alleged pre-existing condition and the effect of the defendant s tortious conduct both harmed the plaintiff within a relatively short period of time, the defendant has the burden of proving the extent to which the pre-existing condition reduced the value of the plaintiff s resultant harm, and the trial court correctly found that a Scafidi charge was not warranted in this case. PUBLIC EMPLOYEES — FIREMEN — EARLY RETIREMENT 33-2-9013 Donald Jones v. Bd. of Trustees, Police and Firemen s Retirement Sys., App. Div. (3 pp.) The board of trustees had no discretion to relax the deadline by which applicant satisfied the age criterion of its early retirement program, even though fireman missed it by one day, and the decision denying fireman early retirement was proper. TAXATION 35-5-9014 Judith Brahin v. City of Somers Point, Tax Ct. (18 pp.) An assessor s property-value opinion in an assessment is not subject to attack under the abbreviated and extraordinary procedures authorized by the Correction of Errors Statute, N.J.S.A. 54:51A-7. [Approved for publication.] CRIMINAL LAW AND PROCEDURE 14-1-9015 State v. Benny Hogan Jr., Supreme Ct. (31 pp.) Although a prosecutor has a limited duty to inform a grand jury of evidence that both directly negates the guilt of the accused and is clearly exculpatory, the judge in this case properly denied defendant s motion to dismiss the indictment when prosecutor did not advise jury of victim s recantation, because the circumstances surrounding the recantation made it less than clearly exculpatory. FEDERAL COURT CASES ADMIRALTY 54-8-9016 In the Matter of the Complaint of Nautilus Motor Tanker Co., Ltd, etc., Third Cir. (38 pp.) In holding that oil tanker was solely responsible for its own grounding, the district court (1) did not err in admitting into evidence opinions and conclusions contained in a Coast Guard report of the incident, (2) did not err in refusing to apply the Pennsylvania Rule, and (3) did not err in concluding that terminal s failure to provide navigational aids and information about the limits of its ship berth did not contribute to the accident. LABOR/EMPLOYMENT — RACE & RELIGIOUS DISCRIMINATION 25-7-9017 Michael Bukatman v. Town of Secaucus, et al., U.S. Dist. Ct. (21 pp.) In case where former town attorney files suit against municipal and individual defendants on racial and religious discrimination grounds and violations of his right to freedom of political association, (1) the complaint is sufficiently detailed in its conspiracy allegations, identifying the role of each defendant and enabling each defendant to ascertain the nature of the claims, and a motion for more definite statement is denied, and (2) since political affiliation is an appropriate requirement for a municipal attorney, counts alleging a violation of the right to freedom of political association are dismissed. CRIMINAL LAW AND PROCEDURE — PAROLE 14-8-9018 U.S.A. v. David Friedland; David Friedland v. Douglas Lansing, etc., et al., David Friedland v. U.S.A., Third Cir. (45 pp. – includes concurring and dissenting opinion) Under the circumstances of this case, the parole commission did not abuse its discretion in determining that there was good cause for denying defendant s parole.

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