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Vol. 4, No. 166 — August 27, 1996 STATE COURT CASES CIVIL PROCEDURE — SUMMARY JUDGMENT 07-2-9918 Hackensack Medical Center v. John W. Vogel, App. Div. (5 pp.) Summary judgment motion made when discovery has not been completed should either be denied without prejudice as not yet ripe, or should be routinely rescheduled for a date subsequent to the completion of discovery. CIVIL PROCEDURE — RELIEF FROM JUDGMENT 07-2-9919 Laurie M. Braun v. A.B. Wilkins, Jr., et al., App. Div. (4 pp.) Where plaintiff’s counsel failed to calendar in his diary the hearing on defendant’s summary judgment motion and, thereafter, following receipt of the order dismissing the case, appealed from the dismissal rather than file a motion for reconsideration, counsel’s neglect was inexcusable and plaintiff is not entitled to relief under R. 4:50- 1 (a). CIVIL PROCEDURE — JURISDICTION — DISCOVERY 07-2-9920 International Fidelity Insurance Company v. Philip J. Goldberg, et al., App. Div. (7 pp.) Where defendants litigated the lack of personal jurisdiction to a successful conclusion in the Appellate Division, but had elected to go forward with merits discovery during that interlocutory appeal, they must pay the duplicating costs for the documents produced in response to that discovery, even though the Appellate Division later ordered the case’s dismissal for lack of personal jurisdiction. [Approved for publication Aug. 27, 1996]. EVIDENCE — CRIMINAL GUILTY PLEA 19-2-9921 State v. Rick Snover, App. Div. (7 pp.) Where defendant conditioned his guilty plea on the grant of his motion to preclude future civil use of the plea pursuant to R. 3:9-2 but thereafter proceeded to sentencing prior to the court’s ruling on that pending motion, there was no “good cause” shown to preclude future civil use of the plea, and it is up to the judge in the civil case to determine whether the plea is admissible. TORTS — CIVIL PROCEDURE — JUDGMENT N.O.V. 36-2-9922 Herbert Lane v. Hartz Mountain Indus. Inc., et al., App. Div. (4 pp.) Where plaintiff made a motion to strike the defense of comparative negligence but did not move for judgment as to liability under R. 4:40-2, the court was still empowered to grant a judgment n.o.v.; however, where the plaintiff testified he did not see the ice because he looked straight ahead, but there was evidence of mounds of snow in the parking lot, reasonable minds could differ and the judgment n.o.v. is therefore vacated. CRIMINAL LAW & PROCEDURE 14-2-9923 State v. Robert Merendino, App. Div. (10 pp.) A motion judge at an expungement proceeding may consider all facts that were available to both the State and the petitioner at the time petitioner entered his original plea to determine whether the petitioner is entitled to expungement.[Approved for publication Aug. 27, 1996]. 14-2-9924 State v. Misael Cordero, App. Div. (6 pp.) The trial judge’s failure to carefully instruct the jury on the weight to be accorded to and the assessment of expert witness testimony (Odom charge) is harmless error here because the jury could make the intent-to-distribute determination based on its common knowledge that the police had seized 421 vials of cocaine, a tray, empty vials and $390 in cash. [Approved for publication Aug. 27, 1996]. 14-2-9925 State v. Steven Kadonsky, App. Div. (9 pp.) Where trial is adjourned due to the repeated legitimate requests of defense counsel, the defendant cannot later assert that trial was delayed beyond the 120-day statutory period of the Interstate Agreement on Detainers. FEDERAL COURT CASES CIVIL PROCEDURE — JURISDICTION — STATUTE OF FRAUDS 07-7-9926 Jeffrey Sibner v. Owen Feeney, et al., U.S. Dist. Ct. (5 pp.) 1. Where plaintiff alleges breach of contract in defendant’s failure to sell his dental practice, plaintiff’s resignation from $25,000-a-year job in alleged reliance on the contract colorably produced more than two years of lost income and thereby satisfies the jurisdictional amount. 2. The statute of frauds does not apply to the sale of a dental practice. [Filed Aug. 23, 1996.] 17-8-9927 Appalachian States Low-Level Radioactive Waste Commission v. Hon. Hazel O’Leary, Third Cir. (19 pp.) Agency’s regulation interpreting ambiguity in the Low-Level Radioactive Waste Policy Amendments Act bears a fair relationship to the statutory language, reflects the views of those who sought its enactment and matches the purpose they articulated, and accordingly plaintiff’s 18-month contract for disposal of LLRW does not provide for “all” waste disposal during the three-year statutory period. [Filed Aug. 20, 1996.] LABOR AND EMPLOYMENT — DISCRIMINATION — ADA 25-8-9928 Francis J. Kelly v. Drexel University, Third Cir. (14 pp.) Plaintiff’s moderate difficulty walking with a limp or climbing stairs does not constitute an ADA disability; moreover, the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action; summary judgment in favor of employer upheld. [Filed Aug. 23, 1996.] LABOR AND EMPLOYMENT — ERISA 25-8-9929 Frank E. Matinchek v. John Alden Life Insurance Company, Third Cir. (14 pp.) A group health insurance plan covering a sole business owner and his or her immediate family members does not qualify as an “employee welfare benefit plan” under ERISA. [Filed Aug. 19, 1996.] Correction: In yesterday’s Alert, the correct name for the case under DDS No. 14-2-9913 should be State v. Donald Hill. We regret any confusion. –END– A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE Race-based use Two years ago, Gerald Baker persuaded a judge to rule that a Market Transition Facility servicing carrier had underpaid his client, a physical therapy center. The judge ordered restitution to the tune of $1.8 million. But an appeals court has vacated that award. See page 3 of the Aug. 26 Law Journal.

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