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Vol. 4 No. 100 – May 24, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-9019 Nat l. Community Bank of N.J., etc. v. Jersey Dev. Corp., etc., et al.; Anthony P. Scriffignano, et al. v. Marc J. Brancato, App. Div. (6 pp.) Where judge acknowledged a factual issue concerning third-party plaintiffs’ damages due to attorney’s alleged negligence and refused to grant attorney’s first motion for summary judgment, and then where the judge failed to make fact findings resolving these issues yet granted summary judgment on the attorney’s second motion, the judgment must be reversed. CONTRACTS — ARCHITECTS 11-2-9020 The Growth Realty Assocs. v. Wank Adams Slavin Assoc., App. Div. (4 pp.) Law Division judge properly directed arbitration and dismissed plaintiff’s complaint against architect — alleging inadequate design and/or specification of its building’s HVAC system — since the contract between the parties provided for arbitration and the dispute is covered by the contract. CORPORATIONS — ARBITRATION — ATTORNEYS’ FEES 12-3-9021 Richard Reinhart v. Synergy Medical Sys. Inc., et al., Law Div. (14 pp.) (1) Shareholders’ agreement did not govern dispute concerning corporate assets’ distribution, and therefore arbitration of the dispute was improper and is vacated. (2) Since plaintiff formerly was a client of defendants’ law firm, Winston & Strawn, there was a conflict of interest in law firm’s representation of defendants in this case, and a $79,000 fee awarded to the firm is vacated. CORRECTIONS — INMATE HEALTH CARE — BIDS 13-3-9022 Communications Workers of Am., etc., et al. v. Brian W. Clymer, etc., et al., Law Div. (16 pp.) The statutory exemption in N.J.S.A. 45:14B-6(A)(1) — permitting unlicensed individuals to provide psychological services as part of their duties as state employees — does not extend to private contractors who perform services pursuant to a state contract, and therefore the corrections department bid, which permits non-licensed psychologists to provide services to inmates, violates the statute, and judgment is granted to plaintiffs on their challenge to the bid. [Approved for publication May 23, 1996.] ENVIRONMENT 17-2-9023 Darwin Griffith/Tall Cedars v. N.J. D.E.P., etc., App. Div. (15 pp.) The court reverses as arbitrary the DEP s decision to restrict plaintiff’s freshwater wetlands permit and water quality certificate by reducing maximum width of his proposed access road, and requiring him to apply for a major modification to the permit in order to receive authority to construct a wider road. The expiration date of the permit also must be extended. (See related case under 17-2-9024 below.) 17-2-9024 Darwin Griffith/Tall Cedars v. N.J. D.E.P., etc., App. Div. (31 pp.) (1) The DEP reasonably requested information from plaintiff in order to determine whether his proposed major subdivision complied with applicable CAFRA statutes and regulations, and, since these requests were not unduly burdensome or excessive, plaintiff’s failure to provide the information provided adequate justification for the DEP to cancel his CAFRA application. (2) Plaintiff’s appeals from the DEP’s disapproval of a water quality management plan amendment request, and mitigation plan, are dismissed for his failure to exhaust administrative remedies. (See related case under 17-2-9023 above.) FAMILY LAW 20-2-9025 Hillary Cummons v. Carole Cummons, App. Div. (7 pp.) Since the plaintiff’s job was at serious risk if he rejected early retirement, and since he has sought, but cannot find, other employment, the judge erred in failing to afford plaintiff any relief on his application for alimony reduction, and matter is remanded. LANDLORD/TENANT — SNOW REMOVAL 27-2-9026 Willie T. Spencer, et al. v. Port Auth. of N.Y. and N.J., et al., App. Div. (5 pp.) Plaintiff’s slip-and-fall claim against defendant — landlord of plaintiff’s employer — was properly dismissed, since plaintiff’s employer, the tenant, had exclusive control of the premises on which plaintiff fell, and the nondelegable landowner’s duty to keep abutting public sidewalks clear of ice and snow does not apply in this case. PUBLIC EMPLOYEES — FIREFIGHTERS 33-2-9027 Marc Wegleski v. Bd. of Trustees of the Police and Firemen’s Retirement Sys., App. Div. (8 pp.) Because execution of an inter-local agreement stripped petitioner of any primary or supervisory responsibilities respecting fire extinguishment activities, the board correctly concluded that petitioner no long was eligible for PFRS membership under the revised legislative definition, and correctly transferred him to the PERS; therefore, when petitioner later was erroneously paid benefits, the board was not only authorized, but required by N.J.S.A. 43:16A-18, to correct the error and demand repayment of monies already released. REAL ESTATE — DAMAGES CAUSED BY POLICE SEARCH 34-2-9028 Samuel Siligato, et al. v. State of N.J., et al., App. Div. (20 pp.) Where, under a warrant, the police damaged two pieces of plaintiffs’ commercial real estate — excavating unsuccessfully for bodies of one of the plaintiff’s supposed murder victims — the damage constitutes a taking by the government, for which plaintiffs must be compensated, and this case discusses the calculation of those damages. WORKERS’ COMPENSATION 39-2-9029 Akbar Ishmael v. Pathmark Stores Inc., App. Div. (4 pp.) Since petitioner’s job duties included the protection of his employer’s property, although the petitioner’s accident occurred outside of the boundaries of employer’s premises, it was compensable since petitioner went to investigate a report that a truck identified as possibly belonging to the employer was being threatened, and the accident therefore arose out of and in the course of his employment. FEDERAL COURT CASES EDUCATION — DISABILITIES 16-7-9030 C.M., et al. v. Bd. of Educ. of Union County Regional High School Dist., etc., et al., U.S. Dist. Ct. (13 pp.) In an action stemming from alleged deficiencies in a disabled student’s testing and evaluation, where the parents seek to expunge allegedly irrelevant information from the record, the testing service’s claim that the information falls outside the scope of N.J.A.C. 6:3-6.7(a) and therefore is not subject to parents’ challenge is without merit, however, since there are factual disputes regarding the information’s relevancy, summary judgment cannot be granted to either party on the expungement issue. ENVIRONMENT 17-7-9031 Fishbein Family Partnership v. PPG Indus. Inc., et al.; Pub. Serv. Elec. and Gas Co. v. UGI Utils. Inc., et al., U.S. Dist. Ct. (7 pp.) In a suit involving chromium residue environmental contamination — where court previously granted summary judgment to defendant on three counts of plaintiff s complaint — the court denies plaintiff’s motion to certify that order for purposes of appeal, due to the existence of many other claims, counterclaims and crossclaims in this action, all rooted in the same factual scenario and involving related legal issues which, if appealed piecemeal, would result in substantial duplication of the court’s efforts. INSURANCE — MARINE — TRANSFER 23-7-9032 Commercial Union Ins. Co., et al. v. Am. Gaming & Entertainment, Ltd., et al., U.S. Dist. Ct. (6 pp.) Plaintiff’s choice of the Newark vicinage for its convenience should not be overturned, since its headquarters and claims department are located in New York City, and it would not be an extreme inconvenience for defendant to travel the 160 miles from West Atlantic City where it is located. INTELLECTUAL PROPERTY 53-7-9033 MITA Copystar Am. Inc. v. Katun Corp., U.S. Dist. Ct. (15 pp.) Plaintiff’s parent company’s retention of the right to bring an action for patent infringement, and the fact that the plaintiff/subsidiary’s license agreement is subject to any license agreement previously entered into between the parent and any third parties, prevent the plaintiff/subsidiary from having a sufficient interest in the licensed patents to sue, on its own, as the patentee,” but rather than dismissing the action for plaintiff’s lack of standing as requested by defendant, the court orders that the plaintiff/subsidiary join its parent as a plaintiff. LABOR/EMPLOYMENT — ALCOHOLISM — DISCRIMINATION 25-7-9034 Bernard Mitchell v. Bristol-Myers Squibb Co., Inc., et al., U.S. Dist. Ct. (17 pp.) In light of custodian s pervasive absenteeism and his failure to rectify the situation after numerous oral and written warnings from his employer, the custodian cannot prove the second part of his prima facie discrimination case — that he had been performing his work at a level that met the employer’s legitimate expectation — and, therefore, employer’s motion to dismiss the discrimination complaint is granted.

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