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Vol. 4 No. 113 – JUNE 13, 1996 A Daily Reporter of New Jersey Court Decisions STATE COURT CASES ATTORNEY/CLIENT 04-1-9209 In the Matter of Advisory Committee on Professional Ethics Docket No. 22-95, Supreme Ct. (20 pp.) The tens of thousands of claims managed by collection attorneys create an extraordinary circumstance that permits those attorneys, at the request of an institutional client-creditor, to use a power of attorney to endorse the client-creditor’s name to drafts from debtors and deduct their contingent fees for individual matters without the prior approval of the client-creditor. CIVIL PROCEDURE 07-2-9210 Steven E. Eleftheriou, et al. v. Randolph Twp. Bd. of Educ., et al. v. Atl. Envrtl., et al., App. Div. (5 pp.) Where plaintiffs answered interrogatories, but failed to produce certain documents pending authorization from another attorney whose client owned those documents, complaint was erroneously dismissed with prejudice, and judge erred in denying plaintiffs’ motion to restore it. CIVIL RIGHTS 46-2-9211 Bil-Jim Constr. Co. Inc., etc. v. Ocean County Solid Waste Advisory Council, et al., App. Div. (5 pp.) The state Department of Environmental Protection’s reinstatement of approval for plaintiff’s recycling facility cured plaintiff’s claimed procedural and substantive due process complaints against defendants, and therefore plaintiff’s civil rights case against those defendants — for their recission of previously granted approval — was properly dismissed. FAMILY LAW 20-2-9212 Janice S. Markey, et al. v. David H. Markey, App. Div. (4 pp.) Despite defendant’s protestations that he is now indigent and cannot afford the agreed-upon child support, the judge’s finding that defendant has sufficient income to pay the support is sound and persuasive and his denial of defendant’s motion to reduce the support is affirmed. 20-2-9213 Angela M. Conte v. John A. Conte, App. Div. (4 pp.) On defendant’s changed circumstances application, the judge’s consideration of income generated by defendant’s IRAs received by equitable distribution was not improper, since these IRAs do not qualify as a “retirement benefit” under the exclusion provisions of N.J.S.A. 2A:34-23, and the judge’s reduction is affirmed. INSURANCE 23-2-9214 Suzanne Borek v. Rutgers Casualty Ins. Co., App. Div. (4 pp.) There was ample credible evidence to support the judge’s finding as to the probable mailing date of plaintiff’s renewal premium payment check, and judgment declaring plaintiff covered under her auto policy is affirmed. INSURANCE — COMMERCIAL AUTO INS. PROCEDURE 23-2-9215 Sorta Leasing, etc., et al. v. Progressive Casualty Ins. Co., App. Div. (4 pp.) The insurance policy issued to trucker under the New Jersey Commercial Automobile Insurance Procedure exposed the insurer to liability as the result of trucker’s hiring other truckers to transport freight for its customer, therefore the Commissioner of Insurance properly found that payments trucker made to those hired truckers were subject to assessment for “cost of hire” premiums. LABOR AND EMPLOYMENT — CONSCIENTIOUS EMPLOYEES 25-2-9216 Dr. Myron A. Mehlman v. Mobil Oil Corp., etc., et al. v. Princeton Scientific Publishing Co. Inc., App. Div. (56 pp.) On plaintiff’s claim that oil company had discharged him in retaliation for his objecting to excessive benzene levels in gasoline products, (1) the trial judge erred in vacating the jury verdict and award on the CEPA claim, (2) the judgment on the prima facie tort claim is vacated, since it is barred by the CEPA waiver provision, and (3) plaintiff’s defamation claim should not have been dismissed since it was independent of the CEPA claim. [Approved for publication Jun. 13, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9217 Lee Ann Drake v. Bd. of Review, etc., et al., App. Div. (4 pp.) The credible evidence supports the conclusion that claimant voluntarily quit her job without good cause attributable to her work, where she left due to problems with her boyfriend stalking her, sought her vacation monies, turned over her badge and never sought reinstatement. LAND USE 26-2-9218 George J. Fry, et al. v. Bd. of Adj. of the Borough of Woodcliff Lake, et al., App. Div. (11 pp.) The board’s interpretation of ordinance’s height requirements, based on its peculiar knowledge of local conditions, was not arbitrary, capricious or unreasonable and is affirmed, as is its issuance of a story variance under N.J.S.A. 40:55D-70(d)(6). NEGLIGENCE — AUTOMOBILES 31-2-9219 John F. Wilson v. Jane Wilson, et al., App. Div. (4 pp.) Where jury issued a verdict of no cause when plaintiff sued his wife for injuries he received when he sought to stop their van from rolling down the driveway, the verdict is affirmed, since it was not unreasonable for the wife to rely on parking gear to hold the car, and there is no legal authority for the advanced proposition that failure to use the emergency brake is negligence per se. NEGLIGENCE — LANDOWNERS 31-2-9220 Luana De Angelis v. Joseph Dwulet, et al., App. Div. (8 pp.) In a case where an automobile accident occurred allegedly due to a water-ponding condition, plaintiff’s motion for reconsideration of her complaint’s dismissal should have been granted, since evidence was presented which could support the liability of adjacent property owners, who created an artificial condition by asphalting a parking expanse, negligently contributing to the dangerous condition. NEGLIGENCE — JURIES 31-2-9221 Eugene E. Ertle, et al. v. Charles E. Starkey, et al., App. Div. (12 pp.) No cause verdict in slip and fall case is affirmed, and judge did not err in speaking to jurors after they had been discharged, nor did that discussion have any effect on the judge’s impartiality or his subsequent ruling denying plaintiffs’ new trial motion. Approved for publication [Decided Jun. 13, 1996, Approved for publication Jun. 24, 1996.] NEGLIGENCE — SKI STATUTE 31-1-9222 Patrick Brett, et al. v. Great American Recreation, Inc., et al., Supreme Ct. (38 pp.) Although the Ski Statute, N.J.S.A. 5:13-1 to -11, does not apply to this case where trespassers were injured on closed ski slope while tobogganing, the defendant is barred by the doctrine of invited error from contesting the application of that statute to this case. Having been invited to apply the Ski Statute, the trial court correctly interpreted its provisions and the jury’s verdict is affirmed. PARTNERSHIPS 02-2-9223 Regina Kahn, etc. v. Variety Portraits, Inc., et al., App. Div. (2 pp.) Chancery Division did not err in finding that partnership had no goodwill value, since, in assessing witnesses’ credibility, there was no basis to conclude that partnership had either “customer recognition” or a “reputation” with the public that had any dollar value. PHYSICIAN/PATIENT 29-2-9224 Zelford Leonard Jr., etc., et al. v. Dilip Bharucha, M.D., App. Div. (3 pp.) Where both plaintiffs’ and defendant’s experts concluded that the brachial plexus injuries plaintiff’s baby was born with could have occurred without negligence, the judge did not err in failing to charge res ipsa loquitur. PUBLIC EMPLOYEES 33-2-9225 Borough of Freehold v. P.B.A. Local 159 of Freehold Borough, App. Div. (8 pp.) Where an employment term and condition has been addressed in a statute, as here, the statutory provisions preempt any right to collective negotiations on the same subject matter, and the judge properly enjoined arbitration of P.B.A.’s claim that members were entitled to paid leave to attend National Guard inactive duty training. The court also upholds the constitutionality of the governing statutes, N.J.S.A. 38A:4-4 and its implementing regulations N.J.A.C. 5A:2-2.3. REAL ESTATE 34-2-9226 John J. Callahan, Jr., et al. v. A.J. Bldg. & Dev. Corp., App. Div. (3 pp.) Evidence supports the Law Division judge’s finding that sellers had not waived a contract’s time of the essence provision and a judgment in their favor is affirmed, as is the denial of the buyers’ counterclaim for specific performance. TAXATION — TAX SALE CERTIFICATES — ASSIGNMENTS 35-2-9227 Herbert Petak, et al. v. City of Paterson, App. Div. (14 pp.) The tax collector acted negligently, despite her good faith, in paying tax sale certificate redemption monies to now-bankrupt assignor of the certificates without making him first produce the certificates, since this procedure is mandated by N.J.S.A 54:5-57, and assignees’ claim against municipality for redemption funds should not have been dismissed. Municipality cannot claim relief under the Tort Claims Act because the contractual nature of the tax sale certificate process precludes the act’s application. [Approved for publication Jun. 13, 1996.] TELECOMMUNICATIONS 57-2-9228 In the Matter of the Application of N.J. Bell Tel. Co., etc., App. Div. (22 pp.) After deregulation of the telecommunications industry, the Board of Regulatory Commissioners was granted the authority to approve alternate forms of regulation, and its determination that the petitioner’s modified plan provided for just and reasonable rates and met statutory criteria is supported by substantial evidence in the record and is affirmed. [Approved for publication Jun. 13, 1996.] WORKERS’ COMPENSATION 39-2-9229 Lois B. Fluharty v. Ceil’s Deli, App. Div. (3 pp.) Dismissal of petition by the compensation judge is supported by the evidence, given the judge’s ability to assess the witnesses and her noting of the inconsistencies in the testimony regarding plaintiff’s alleged fall. A Daily Reporter of New Jersey Court Decisions

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