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Vol. 4 No. 96 – MAY 20, 1996 STATE COURT CASES ATTORNEYS 04-1-8950 In the Matter of the Application of Frank B. McLaughlin, for Admission to the Bar of N.J., Supreme Ct. (33 pp.) Although applicant’s arrests were for minor matters, his treatment of those arrests before Court’s admissions committee demonstrated a significant lack of candor, and his handling of his automobile insurance also indicated a lack of honesty, which, combined with a pattern of behavior and demeanor that demonstrates a clear and convincing lack of the required reverence for the truth, leads this court to withhold certification of the attorney’s character. DEBTOR/CREDITOR 15-2-8951 Urban Nat’l Bank, etc. v. Edith B. Libutti, App. Div. (29 pp.) Since it clearly appears that defendant participated in efforts to keep bank from knowing that its president purchased and sold race horses, although defendant may not have believed defendant was involved in anything illegal, defendant was an accomodating party, signing, authorizing and ratifying notes to the bank, disbursements of proceeds and payment of interest, and defendant understood her personal liability; therefore, trial judge’s decision that defendant was not liable on two notes is reversed, and the decision that she was liable on a third note is affirmed. Matter is remanded, however, for a hearing on whether the case was settled earlier. ENVIRONMENT 17-2-8952 Gary W. Bartell, et al. v. Robert Boettcher, et al. v. Agway Inc., etc. et al., App Div. (5 pp.) In a case involving pollution of plaintiffs’ wells from oil leaking out of a tank on defendants’ property, trial judge properly exercised his discretion to deny defendants’ belated motion to amend their answer and ruled that the case was settled; the settlement extinguished all crossclaims for contribution among the settling parties, and the defendants’ claim that Spill Act crossclaims are conceptually different from ordinary crossclaims — and therefore not barred by the settlement — are without merit. LAND USE 26-2-8953 Virginia Morley, et al. v. Aileen Hwang, et al., App. Div. (5 pp.) Judge acted reasonably in dismissing plaintiff’s complaint in lieu of prerogative writs as time-barred, and deciding that plaintiff’s actual knowledge of the parking lot use sought by defendant and of the site plan prevented plaintiff from being prejudiced by the municipality’s notice’s failure to specifically mention defendant’s intended use of the property as a parking lot, and plaintiff was properly prevented from using this technical defect in the notice to justify her extreme delay in bringing this action. LAND USE — CIVIL RIGHTS — ENTIRE CONTROVERSY 26-2-8954 Elelake Jefferson v. Twp. of Nutley, etc., et al., App. Div. (8 pp.) Plaintiff’s civil rights complaint was properly dismissed by trial judge on entire controversy grounds, since the facts supporting his Section 1983 civil rights claim are the same that supported his prior action in lieu of prerogative writs. LAND USE — FAIR HOUSING 26-2-8955 Theodore Kaczala, et al. v. Borough of Montvale; Raymond Janovic, et al. v. Borough of Montvale, App. Div. (11 pp.) Judge correctly ordered judgment of compliance and order for repose in fair housing case, and appellant’s challenge of that portion of judgment which has the effect of re-zoning his property is denied, since a fairness hearing on the Mt. Laurel compliance issue is not the time or place to undertake the quest for vindication of rights in zoning challenge or on inverse condemnation claim. NEGLIGENCE — SIDEWALKS 31-2-8956 Jeanette Fenkel v. Paul Yuan, et al., App. Div. (9 pp.) In a case dealing with plaintiff’s fall in front of connected properties owned by different defendants, the judge should not have emphasized one part of plaintiff’s testimony — indicating that she had fallen in front of hair salon — over other parts of her testimony indicating that she was confused and could not recall where she fell, since there was an eyewitness to indicate that plaintiff fell in front of a different part of the property, and the resolution of the evidentiary discrepancies was an issue for the jury to decide. NEGLIGENCE — TORT CLAIMS ACT — NOTICE 31-2-8957 Eugene R. Wahl, et al. v. Frank Zichelli, etc., et al., App. Div. (13 pp.) In a case where plaintiffs sued for problems related to bad fill on their property — which resulted in problems with their foundation — even assuming the discovery rule applied to their claims against municipality, the trial judge correctly granted municipality’s motion to dismiss and held that plaintiffs knew or should have known of the potential claims against the municipality more than two years before filing suit, and therefore their failure to timely serve notice under the Tort Claims Act is fatal for their claims of negligent inspection, supervision or permitting activity; but since plaintiff’s cross motion — seeking to add an allegation of actual improper dumping of fill on the municipality’s part — is different from the other claims and may not have been discoverable until later, this aspect must be remanded. FEDERAL COURT CASES ADMIRALTY 54-7-8958 Mark J. Mehler v. Atl. Container Lines AB, et al., U.S. Dist. Ct. (9 pp.) Since the date of “delivery” of plaintiff’s cargo is crucial to the question of whether his case against shipper is time-barred pursuant to the provisions of the Carriage of Goods by Sea Act, and since there are numerous factual questions surrounding the definition the subject “delivery” date, this case cannot be decided on summary judgment, and shipper’s summary judgment motion is denied. ATTORNEY/CLIENT — DISQUALIFICATION 04-7-8959 Glen J. Flora v. Sheriff Edward J. Webster, et al., U.S. Dist Ct. (4 pp.) Magistrate judge’s order disqualifying attorney as plaintiff’s counsel is affirmed based on the likelihood of the attorney being a witness in the ultimate trial of the case. CIVIL RIGHTS 46-7-8960 Salvatore J. Ortisi v. Henry Fengya, etc., et al., U.S. Dist. Ct. (9 pp.) Plaintiff’s civil rights claims against public defender for use of coarse language are dismissed since, (1) there is simply no basis for plaintiff’s position that he has a constitutional right to communication free of coarseness, (2) the public defender was not acting under color of state law in his capacity as plaintiff’s appointed counsel despite the fact that his salary was paid from state funds, (3) the public defender is immune from suit pursuant to Section 1983, and (4) the plaintiff has not alleged sufficient facts to support his theory that public defender conspired against him with other officials under Section 1985. COMMERCE — ANTITRUST 08-7-89xx GDS Food Co. Inc. v. Stanislaus Food Prods. Co., et al., U.S. Dist. Ct. (13 pp.) (1) The court finds that plaintiff, a restaurant-supplies distributor — in complaining that defendant/manufacturer of popular tomato products has conspired with its other distributors to deny plaintiff access to defendant’s products — has alleged a vertical conspiracy, not a per se Sherman Act violation, and that the Rule of Reason is the procedure to be employed to determine if there is unreasonable restraint on competition in this case. (2) Since whether defendant’s conduct violates the Rule of Reason and constitutes an antitrust violation is a fact question, it cannot be decided on defendant’s motion to dismiss. CORRECTIONS — SENTENCING 13-7-89xx Theodore Williams v. United States, U.S. Dist Ct. (8 pp.) Inmate’s sentencing was permissible and the imposition of consecutive sentences upon him for his “pre-guidelines” mail fraud violations and for his “guidelines-governed” bank fraud offenses are explicitly permitted under the sentencing guidelines. ENVIRONMENT — INSURANCE — DEFENSE COSTS 17-7-89xx NL Indus. Inc. v. Commercial Union Ins. Co. v. Certain Underwriters at Lloyd’s Ins. Co. of N. Am., et al., U.S. Dist. Ct. (46 pp.) In a lengthy opinion, the court deals with several motions concerning defense costs in a battle over insurance coverage for environmental and lead paint claims asserted against plaintiff, finding (1) that plaintiff did not breach its duty to cooperate by hiring outside counsel, and (2) that although the complaints may contain allegations that could be construed as not constituting an “occurrence” or a “known loss” within the policy’s meaning, they also undoubtedly contain allegations which do not fall within these categories, and therefore insurer is obligated to defend. [For publication.] LABOR AND EMPLOYMENT 25-7-89xx Rosetta Sumter v. Saybolt Inc., et al., U.S. Dist. Ct. (5 pp.) Magistrate judge properly determined that the assertion of new causes of action against different defendants for denial of workers’ compensation and disability benefits did not relate to or arise out of plaintiff’s initial employment discrimination complaint, and the denial of plaintiff’s motion to amend her complaint is affirmed. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-89xx Richard Sperling, et al. v. Hoffmann-La Roche, Inc., etc., U.S. Dist Ct. (125 pp.) In a putative class action brought by former employees alleging violations of the Age Discrimination Act — as a result of a reduction in force known as Operation Turnabout — the court finds that the former employees have failed to submit sufficient evidence to establish a widespread, pervasive pre-existing age bias among the employer’s decision-making management, and therefore employer’s motion to dismiss the former employees’ pattern-or-practice claim is granted. (See related decision below.) 25-7-89xx Richard Sperling, et al. v. Hoffmann-La Roche, Inc., etc., U.S. Dist Ct. (39 pp.) Analyzing former employees’ claims of age discrimination and disparate treatment under Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993), although the court finds that some of the claims alleged by some of the former employees — such as the claim that termination decisions were based on employees’ high salary — are not viable under the Age Discrimination in Employment Act (ADEA), it nevertheless denies employer’s motion to dismiss these claims since the former employees may pursue the “supposition” theory espoused in their answers to contention interrogatories; for example, they may pursue a claim that the employer supposed that those employees who had the highest salaries were older, and therefore fired persons with higher salaries as a means to fire older workers. (See related decision above.) NEGLIGENCE — FEDERAL TORT CLAIMS ACT 31-7-89xx Ryan Danowski, a minor, et al. v. United States of Am., U.S. Dist Ct. (33 pp.) (1) The claim of the father — of child who was injured when struck by a postal vehicle — for the reimbursement of medical expenses should not be dismissed for fathers’ alleged failure to comply with the notice requirements of the Federal Tort Claims Act, since the claim form and subsequent submission of detailed medical expenditures clearly put the federal government on constructive notice of the claim, and the government should not be permitted to profit from its inactivity in response to the notice. (2) ERISA preempts the New Jersey Collateral Source Rule, which otherwise would preclude plaintiffs from recovering medical expenses that already have been paid by the father’s employer-provided health care reimbursement plan. [For publication.] PRODUCT LIABILITY — JURISDICTIONAL AMOUNT — REMAND 32-7-89xx Peter R. Bishop v. Gen. Motors Corp., U.S. Dist Ct. (18 pp.) Since plaintiff’s claim does not meet the amount in controversy required to establish federal subject matter jurisdiction, and because the court declines to treat attorneys’ fees or highly speculative punitive damages as aggregable for purposes of meeting the amount in controversy, plaintiff’s motion to remand is granted. PUBLIC EMPLOYEES — ENTIRE CONTROVERSY 33-7-89xx Charles F. Kelly v. Borough of Sayreville, et al., U.S. Dist Ct. (17 pp.) The entire controversy doctrine applies to actions initiated before an administrative agency, even though the agency is unable to award compensatory and punitive damages to the claimant, since plaintiff voluntarily and knowingly chose his forum by electing to file an unfair labor practice charge with PERC, and could have raised his federal claims before PERC but chose not to; therefore defendant’s motion to dismiss is granted. [For publication.]

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