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Vol. 4 No. 132 – JULY 11, 1996 STATE COURT CASES CONTRACTS — ENTIRE CONTROVERSY 11-2-9536 Knoll Manor Assocs., et al. v. Coinmach Indus. Co., App. Div. (5 pp.) Judge did not err in ruling that it was unfair to bar plaintiff s contract action — for credits due it from defendant for laundry machines placed in plaintiffs buildings — under the entire controversy doctrine, since an earlier action, brought by defendant seeking a restraining order against plaintiff s removal of the machines, was temporary, and the parties had terminated that action under a potential agreement to work out their differences. DEBTOR/CREDITOR 15-2-9537 Nat l Westminster Bank N.J., etc. v. Hott Properties, et al., App. Div. (8 pp.) Although plaintiff was not required by guaranty terms to first look to property to satisfy the debt owed to it, once it chose to do so, the transaction became subject to the equitable concept of fair market value credits, and the entry of final judgment against defendants/guarantors is reversed and remanded for a fair market value hearing. DEBTOR/CREDITOR — RENT-TO-OWN CONTRACTS 15-3-9538 Iris Green v. Continental Rentals, Robert J. DelTufo, etc. v. Roseann Levine v. Continental Rentals, Law Div. (17 pp.) (1) Rent-to-own transactions are subject to the provisions of the federal Truth in Lending Act, the N.J. Retail Installment Sales Act, and the Uniform Commercial Code, and (2) the purchase price of the rented goods in questions in this case included usurious interest and violated the Consumer Fraud Act. [Approved for publication Jul. 8, 1996.] ENVIRONMENT 17-1-9539 David Bahrle, et al. v. Exxon Corp., et al., Supreme Ct. (24 pp.) Oil company is not vicariously liable for groundwater contamination caused by the activities of an independently owned and operated gas station that sold oil company s products. FAMILY LAW 20-2-9540 Luciana A. Lanza v. Michael A. Lanza, App. Div. (6 pp.) Judge s child-support rulings are affirmed, including the imposition of sole responsibility for children’s post-secondary education on defendant, since the judge concluded that defendant s true income and assets might never be discoverable, and imposed the responsibility on him as the party who had demonstrated in the past the ability to generate substantial income over a sustained period. 20-2-9541 Patricia L. Place v. Richard L. Grossman, App. Div. (6 pp.) (1) Judge erred in his determination that son was not emancipated based solely upon mother s representation that son would be attending college, since this, by itself, is not a sufficient basis for reaching that conclusion, and matter is remanded for an evidentiary hearing on the issue. (2) Since the right to choose one s surname is withheld from unemancipated individuals, the judge s determination on the emancipation issue on remand will also determine whether son must use father s surname, as father urges, or choose not to, as son wishes. INSURANCE — P.I.P. — ARBITRATION 23-2-9542 Allan Chin v. CSC Ins. Svcs., etc., et al., App. Div. (11 pp.) Plaintiff was properly held disqualified for PIP benefits because the arbitrators found that his vehicle was operable and uninsured at the time of the accident, and although there may have been a possible mistake of law, the standard of review requires that the arbitrators decision must be affirmed. INSURANCE — VERBAL THRESHOLD 23-2-9543 Balvin G. Bailey v. Anthony Telleri, App. Div. (7 pp.) Where plaintiff submitted medical proof that he was unable to work as a welder for nine months after an accident, which was not controverted by the defense, the judge erred in imposing his own belief that the plaintiff could work, and the summary judgment dismissing plaintiff s type 9 claim is reversed. LABOR AND EMPLOYMENT 25-2-9544 In the Matter of N.J. Tpke. Auth., et al., App. Div. (12 pp.) The Turnpike Authority is subject to the N.J. Employer-Employee Relations Act as a public employer and may not negotiate with its union with respect to a decision on employee layoffs, a managerial prerogative under that act. [Approved for publication Jul 11, 1996.] NEGLIGENCE 31-2-9545 Jennifer Wondrack v. Car Rental Inc., etc., et al., App. Div. (6 pp.) Where plaintiff sued for injuries she sustained when she fell off a homecoming float, (1) judge properly dismissed plaintiff s negligent entrustment claims against truck rental defendant, since the person who signed the papers for the truck met all of the rental qualifications, and renting the truck to that person could not be considered as the proximate cause of any subsequent negligent operation — if there was any — by another party who drove the truck; and (2) judge properly ruled that sorority could not be liable under successor liability theories. PHYSICIAN/PATIENT 29-2-9546 Toni Sydor, etc. v. Gene Zirpolo, M.D., et al., App. Div. (6 pp.) In dismissing plaintiff s malpractice case as time-barred, the Law Division judge did not err on the evidence presented in concluding that plaintiff discovered before 1994 that she may have had a cause of action against her doctor on her claim that her teeth were discolored as a result of his prescribing tetracycline. 29-2-9547 Donna Safer, et al. v. The Estate of George T. Pack, et al., App. Div. (12 pp.) A physician has a duty to warn those known to be at risk of avoidable harm from a genetically transmissible condition. [Approved for publication July 11, 1996.] PRODUCT LIABILITY — SKIING 32-2-9548 Alfred Leitermann v. Herman s World of Sporting Goods, et al., App. Div. (14 pp.) A defense counsel’s inappropriate question and his subsequent comments invited the jury to associate plaintiff with the evils of Nazi Germany, and the potential prejudicial effect of the remarks requires reversal of the defense verdict. PUBLIC EMPLOYEES 33-2-9549 Margaret E. Vassallo v. Merit System Bd., App. Div. (11 pp.) Since plaintiff was demoted, lost 10 years of seniority and permanent status, and was given a pay cut following her leave of absence for medical reasons due to her exposure at work to toxic substances, and where she then was required to perform the same duties and was discouraged from pursuing a reclassification request, the Merit System Board abused its discretion in denying her retroactive seniority, back pay and permanent status because her three-year delay in bringing the action precluded review of the matter. TORTS — DEFAMATION Now on Counsel Connect 36-2-9550 Daniel F. Newman v. Brian Delahunty, et al., App. Div. (50 pp. — 2 pp. appellate decision published together with 37 pp. Law Div. decision and 11 pp. appendix) In a libel action committed by one mayoral candidate against another during a local election campaign, the evidence supports the judge s decision that the various published materials were defamatory and not privileged, and judgment is affirmed. [Approved for publication July 1, 1996.] WILLS, ESTATES AND TRUSTS 38-2-9551 In the Matter of the Estate of Barbara L. Brackett; In the Matter of the Estate of Norma Hiltz, App. Div. (8 pp.) Trial court properly held that, under the New Jersey intestacy statute, even though separated and estranged, respondent was the sole heir of his wife’s estate, and, since there was no statutory authority to disqualify him as administrator and have him forfeit his estate share, the appointment of him as administrator of wife s estate, as well as that of her subsequently deceased mother — of whom wife was sole heir — was proper. 38-3-9552 Jerry A. Barner, et al. v. Robert Sheldon, Law Div. (11 pp.) Attorney had no duty to inform beneficiaries of the tax consequences of their failure to disclaim under their father s estate, since the father s intent was to minimize the benefit to his wife by his will and any disclaimer would have benefited the wife contrary to that intent. [Decided May 3, 1995; Approved for publication July 8, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-9553 State v. Festus Egberongbe, App. Div. (6 pp.) Although it was within police officer s job description to respond to disturbance call and to try to resolve problem between neighbors, officer was not justified in entering defendant s backyard to retrieve soccer ball allegedly belonging to neighbors just because defendant did not answer the door when the officer rang the doorbell and because an unidentified person yelled obscenities through the door, and since the officer s unauthorized entry precipitated the officer’s confrontation with defendant and his wife, defendant s convictions for simple assault and disorderly conduct are reversed. 14-1-9554 State v. Curtis Knight, Supreme Ct. (43 pp. — includes concurring/dissenting opinion) The holding of State v. Sanchez, which prohibits post- indictment questioning of a defendant without the consent of defense counsel, is applicable retroactively to this case, and the admission of defendant s statement to his arresting officer violated his state constitutional right to counsel. Additionally, the prosecutor s failure to disclose certain exculpatory information to the defendant violated federal constitutional law. [This is a companion case to 14-1-9555 below.] Now on Counsel Connect 14-1-9555 State v. Louis Abronski, Supreme Ct. (6 pp.) The mandate of State v. Reed — which holds that the failure of police to advise a suspect that an attorney is available to confer with him renders the suspect s subsequent waiver of the privilege against self-incrimination invalid — will not be applied retroactively in this case, which was pending on direct appeal when Reed was decided. [This is a companion case to 14-1-9554 above.] 14-3-9556 In the Matter of the Application of R.C. for Expungement, Law Div. (6 pp.) While N.J.S.A. 2C:52-2(c) precludes the expungement of a conviction for the sale or distribution of a controlled dangerous substance, it does not preclude an expungement of a conviction for aiding and abetting the offense. [Approved for publication July 1, 1996.] FEDERAL COURT CASES ATTORNEYS — FEES 04-7-9557 In re Onofrio Mezzina; U.S.A. v. Local 560 (I.B.T.), et al., U.S. Dist. Ct. (11 pp.) The court reviews various counsel fee applications submitted by attorneys as a result of a civil contempt proceeding, and approves of and awards fees, with certain reductions and adjustments. [Filed June 26, 1996.] CORRECTIONS — CONSTITUTIONAL LAW — CIVIL RIGHTS 13-7-9558 Artis T. Kato v. William H. Fauver, et al., U.S. Dist. Ct. (8 pp.) (1) The court dismisses inmate s due process claims pertaining to his being placed in solitary confinement, since the decision did not deprive him of a constitutionally protected liberty interest, and, even if it did, inmate was afforded adequate process. (2) Inmate s Section 1983 claims are dismissed because he fails to allege personal involvement on the part of any of the state defendants in the alleged confinement decision. [Filed Jun. 28, 1996.] LABOR AND EMPLOYMENT 25-7-9559 Linda M. Bradley v. Port Auth. of N.Y. and N.J., U.S. Dist. Ct. (23 pp.) In a failure-to-promote suit, (1) plaintiff s sex discrimination claim is dismissed since the job was given to another woman; (2) her age and race discrimination claims are dismissed since she has failed to prove that the employer s proffered reasons for choosing the other candidate — superior qualifications — was a pretext for discrimination, and (3) her retaliation claims are dismissed because she has shown no causal link between the filing of her various complaints and the employer’s decision not to promote her. [Filed Jun. 28, 1996.] TELECOMMUNICATIONS — JURISDICTION — AMOUNT IN CONTROVERSY 57-7-9560 Jerry Marcopoulos v. Ameritech Corp., et al., U.S. Dist. Ct. (25 pp.) Potential class action suit — seeking dividends from and proceeds of sale of telecommunications company — is remanded to state court for failure to meet the jurisdictional amount in controversy, since defendants cannot show that all potential class members have a common and undivided interest in the dividends and proceeds necessary to satisfy the exception to the rule against aggregation of damages in diversity cases. [Filed Jun. 28, 1996.] CRIMINAL LAW AND PROCEDURE — MEGAN S LAW 14-7-9561 W.P., et al. v. Deborah Poritz, etc., et al., U.S. Dist. Ct. (58 pp.) Summary judgment is granted to defendants on plaintiffs complaint asserting that the New Jersey Registration and Community Notification Laws ( Megan s Law ) are unconstitutional as applied retroactively, since the notification provisions under the law do not impose punishment as contemplated under either the ex post facto or double jeopardy clauses, nor do they violate due process. [Filed Jul. 1, 1996.] A Daily Reporter of New Jersey Court Decisions

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