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Vol. 4, No. 171 — September 4, 1996 STATE COURT CASES CORRECTIONS 13-2-9947 James W. Thomas v. Dept. of Corrections, App. Div. (3 pp.) Prison s decision to reclassify inmate from maximum custody status to intermediate gang minimum custody status — instead of to full minimum custody status — is affirmed in light of N.J.A.C. 10A:9-4.3(d), which makes the successful completion of gang minimum custody status a prerequisite for full minimum custody status. FAMILY LAW 20-2-9948 David L. Bruck v. Krysia Bruck, App. Div. (6 pp.) Plaintiff s actions in making a motion for reduction of alimony, while the case was pending in the appellate court, without informing either court of the pendency of the other proceeding, was inappropriate and contrary to R. 2:9-1(a), and therefore the trial court s action in reducing alimony was void and is vacated. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9949 D.M.L. v. M.O., App. Div. (2 pp.) The judge erred in ruling that the defendant had committed criminal mischief — and therefore domestic violence – - when he knocked over a table and television set, since the offense requires damage to the property of another, and the property here belonged to defendant, therefore the finding of domestic violence and restraining order must be reversed. GOVERNMENT 21-2-9950 John Bleeker v. Dept. of Community Affairs, Local Finance Bd., App. Div. (12 pp.) Under the circumstances of the case, the Local Finance Board had inherent concurrent jurisdiction to file and determine ethics complaint against borough councilman, and its decision that he violated N.J.S.A. 40A:9-22.5(h) because of his representation of applicants before the borough while serving as a councilman is affirmed since it was not arbitrary, unreasonable or capricious. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-9951 Market Transition Facility of N.J., etc., et al. v. Teresa Parisi-Lusardi, App. Div. (19 pp.) Defendant, injured while driving her cohabitant paramour s automobile, was not barred by the decision in Aubrey v. Harleysville Ins. Cos. from pursuing a claim for UIM coverage under the policy purchased by the paramour, even though defendant did not own an automobile and did not have her own UIM coverage. [Approved for publication Sept. 4, 1996.] INSURANCE — UNINSURED MOTORIST COVERAGE — ARBITRATION 23-2-9952 Mark Kelsey v. Prudential Property & Casualty Ins. Co., App. Div. (6 pp.) The arbitrators considered the injury to plaintiff s right knee, and there was no lack of clarity in their award, mistake of law or public policy reason to justify the trial court s grant of remand, and the plaintiff failed to institute a summary action for vacation, modification or correction of the award within three months in accordance with N.J.S.A. 2A:24-7, therefore order directing rearbitration of UM claim is reversed. LANDLORD/TENANT 27-2-9953 Housing Authority of the City of Salem v. Desiree Cooke, App. Div. (2 pp.) The evidence did not establish that the landlord intended to waive past due rent, since the landlord continued to refuse to accept rent payments, and the trial judge erred in finding such waiver, therefore the damages portion of the judgment is reversed. REAL ESTATE — EASEMENTS 34-2-9954 Everett W. Howell, et al. v. Herbert H. Pittenger, et al., App. Div. (7 pp.) Since plaintiffs were on notice of the existence of easement when they purchased the property, it was their duty to make diligent inquiry regarding the scope and terms thereof, and their failure to do so before the six- year statute of limitations expired dooms their challenge and the trial court correctly dismissed their extinguishment and trespass causes of action. TORTS — DEFAMATION 36-2-9955 Samuel Naro, et al. v. Hamilton Twp., et al., App. Div. (8 pp.) Because plaintiff was a suspect in a murder investigation, he became a limited-purpose public figure, and because he failed to establish that defendants statements against him were false or made with the requisite actual malice, and because the journalists were protected by the fair report privilege, plaintiff s defamation case was properly dismissed. CRIMINAL LAW AND PROCEDURE — CRIMINAL MISCHIEF 14-2-9956 State v. Robert Forrest, App. Div. (4 pp.) Defendant was not entitled to take the law into his own hands in removing fence on shared driveway, either under a defense of necessity or justification, and his conviction for criminal mischief is affirmed, however the court erred in sentencing defendant to reimburse neighbor for the cost of a new fence, without a determination being made as to the validity of the neighbor s easement claim, which should be done in the Chancery Division as a quiet title action, or in the Law Division as a damages action. FEDERAL COURT CASES BANKRUPTCY 42-6-9957 In the Matter of: Princeton-New York Investors, Inc., et al., Debtors; Robert P. Gibbons, etc. v. First Fidelity Bank, N.A., et al., U.S. Bankruptcy Ct. (28 pp.) (1) The court finds that the amended complaint sets forth a claim against defendant GAR sufficient to withstand GAR s motion for judgment on the pleadings, since there exists a material issue of fact as to whether, and to what extent, GAR benefitted from the alleged application of sale proceeds to reduce indebtedness to defendant bank of entities other than the debtor, but the trustee must seek relief from the automatic stay in GAR s bankruptcy proceeding in order to file and serve the amended complaint against it. (2) The court concludes that application of the state statute of repose, N.J.S.A. 25:2-31, would so severely restrict the trustee s ability to recover property for the benefit of the bankruptcy estate that it obstructs the accomplishment and execution of the full purposes and objectives of Congress in enacting the Bankruptcy Code, and is preempted by federal bankruptcy law; accordingly, the avoidance action commenced by the Trustee was timely within the two-year statutory period of Section 546 of the Bankruptcy Code. [Filed Apr. 25, 1996.][Approved for publication Aug. 7, 1996.] 42-6-9958 In re: AGI Software, Inc., Debtor; Emplexx Software Corp. v. AGI Software, Inc., et al., U.S. Bankruptcy Ct. (23 pp.) As a matter of law, the Reorganization and License Agreements between the parties are inextricably linked and are not to be independently construed, and since the plaintiff in the adversarial proceeding breached the Reorganization Agreement when it failed to pay the leases it assumed, such breach results in a failure of consideration for entering into the License Agreement; Since Debtor effectively terminated the License Agreement pursuant to its terms after plaintiff s breach, there was no agreement for the Trustee to assume or reject, and therefore summary judgment is entered against plaintiff on the verified complaint attempting to enforce the License Agreement. [Filed Nov. 3, 1995.][Approved for publication Aug. 7, 1996.] 42-6-9959 In re: Resorts International, Inc., et al., Debtors, U.S. Bankruptcy Ct. (29 pp.) Debtor s application for interest income earned on court- ordered litigation expense account is partially granted, as debtor is entitled to such interest for the period prior to the settlement of the litigation, but upon settlement, the deposited funds became a litigation trust asset, and any interest also became a trust asset, to which debtor is not entitled. [Filed Jun. 3, 1996.][Approved for publication Aug. 7, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE A dispute over severance pay for a partner at one of New Jersey’s premier bankuptcy firms is likely to refine the differences between disengagement at partnerships and professional corporations. See page 3 of the Sept. 2 Law Journal.

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