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Vol. 4 No. 147 – AUGUST 1, 1996 STATE COURT CASES ARBITRATION AND MEDIATION — IMPARTIALITY 03-2-9750 Control Bldg. Sys. Inc. v. Robert Isaacson, App. Div. (7 pp.) The motion judge erred in not setting aside defendant’s arbitration award, since there was an appearance of bias of one of the arbitrators, given the arbitrator’s social relationship with defendant. ATTORNEYS — FEES — PROFESSIONAL COURTESY Now on Counsel Connect 04-2-9751 Estate of Irene L. Pinter, etc., et al. v. Theresa McGee, et al., App. Div. (13 pp.) In a case where there was a dispute about the fee to be charged to a former associate for a case the firm handled for the former associate s family, the judge correctly concluded that because of law firm s failure to have contingent fee agreement in writing, the consequence should be that no fee was recoverable. [Approved for publication Aug. 1, 1996.] BANKING Now on Counsel Connect 06-1-9752 All Am. Auto Salvage v. Camp s Auto Wreckers; Citibank, S.D., N.A. v. Lisa A. Coffey, App. Div. (22 pp.) Considerations of equity and economic realities dictate that a bank in which a judgment debtor has an account is entitled to a set-off against the account for its fees for responding to a levy against the account by a judgment creditor. CONTRACTS — BAILMENTS 11-2-9753 Judy Theil v. Gold Coast Dry Cleaners, App. Div. (5 pp.) The record amply supports the judge s conclusion that the parties created an implied-in-fact contract where dry cleaner defendant agreed to keep plaintiff s wedding gown for an indefinite time after it was cleaned, and since the gown was lost while in the defendant-bailee s control, it was liable for the loss. CORRECTIONS Now on Counsel Connect 13-2-9754 Beneficial of N.J. v. Vernon Bullock, App. Div. (5 pp.) Before a default judgment can be entered against an inmate for not appearing at a trial, the trial court must treat with liberality an inmate s endeavor to defend, and matter is remanded for submissions on the subject. [Approved for publication Aug. 1, 1996.] EDUCATION — ACCIDENTAL DISABILITY PENSIONS 16-2-9755 Frances Mary Catarcio v. Bd. of Trustees of the Teachers Pension and Annuity Fund, App. Div. (4 pp.) The trustees determination denying teacher accidental disability pension benefits is affirmed, since the record supports their finding that her injuries — suffered when a swinging door was thrust out from a stairwell, knocking her to the ground — were not sustained as the result of a requisite traumatic event. EVIDENCE — ADOPTIVE ADMISSIONS 19-2-9756 Kathryn Kronke v. Dylag Motorsport Inc., App. Div. (5 pp.) In a slip-and-fall case, the trial judge s decision not to admit the report of plaintiff s treating physician at defendant s request was not an abuse of discretion, since there were no exceptional circumstances to justify the use of that report as an adoptive admission. FAMILY LAW 20-2-9757 Karen Burke v. Dale Burke, App. Div. (4 pp.) Portion of post-divorce judgment order which denied defendant s request for child-support reduction is reversed, since there was a dispute over whether defendant s acknowledgment of income at the time of the divorce judgment was a mistake, and the judge should have ordered a plenary hearing to resolve the issue. 20-2-9758 Susan M. Fritzen v. Robert A. Swisher Jr., App. Div. (6 pp.) There was no showing that the trial court was mistaken or abused its discretion in denying defendant s application to adjust the proration of the parties responsibility for unreimbursed medical expenses and in denying defendant the right to declare the children as tax deductions on his income tax return. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9759 D.T. v. A.J. Sr., App. Div. (10 pp.) The judge should not have permitted a domestic violence complaint to remain open after discharging its final and temporary restraining orders and, at least should have dismissed the complaint six months later when he permitted unsupervised visitation after an apparent reconciliation between the parties; consequently, the complaint is a nullity and the FRO entered is reversed. INSURANCE — DEEMER STATUTE 23-2-9760 David Ramirez v. State Farm Ins. Co., etc., et al., App. Div. (11 pp.) The trial court correctly determined that N.J.S.A. 17:28-1.4, the Deemer Statute, applies to a servicing carrier for the Florida Joint Insurance Underwriting Association. LAND USE — HISTORIC PRESERVATION 26-3-9761 Jay Nadelson, et al. v. Twp. of Millburn, N.J., et al., Law Div. (23 pp.) Given the context and the purpose of the historic preservation ordinance at issue, the court finds that the ordinance s design criteria and guidelines are sufficiently intelligible to provide adequate notice as to what is lawful in home renovation, and homeowners constitutional challenge is dismissed. PHYSICIAN/PATIENT — HMO S 29-2-9762 Marlene Hexner v. Rutgers Community Health Plan, et al., App. Div. (15 pp.) The question of the HMO s vicarious liability for the negligence of its plan doctors is moot, since the jury found the doctors were not negligent, and since the trial court correctly found that plaintiff had failed to demonstrate how the HMO had violated any duty that it may have directly had to coordinate and oversee plaintiff s medical care, directed verdict in favor of HMO is affirmed. PUBLIC EMPLOYEES 33-2-9763 Deborah Walker v. Dep’t of Human Svcs., App. Div. (7 pp.) Decision of the Merit System Board denying plaintiff s sick-leave benefits is reversed because psychological illness is compensable if traced to a specific traumatic work-related incident supported by medical documentation, and plaintiff s evidence on the illness was essentially uncontroverted. REAL ESTATE — CONDOMINIUMS 34-2-9764 117 Clinton Street Condominium Ass’n v. Harvey F. Gerber Jr., App. Div. (15 pp.) Chancery Division judge correctly ruled that condominium developer s retention of a 99-year leasehold interest in condominium property designated as storage space, at a rent below fair-market value, is unconscionable under the New Jersey Condominium Act. REAL ESTATE — EASEMENTS 34-2-9765 Eileen H. Wilki, et al. v. Robert Kubis, et al., App. Div. (9 pp.) The trial judge properly determined that alley between adjoining landowners was 10 feet wide, relying on the plaintiffs chain of title, which predates official municipal maps, and the fact that the municipality s vacating of the alley as a right of way referred to the alley as being 20 feet wide does not change its dimension, however, the judge should not have concluded that plaintiffs were entitled to an easement to continue to use the full width of the alley, and that part of the decision is reversed. TAXATION 35-2-9766 Grandal Enters. Inc., etc. v. Borough of Keansburg, etc., App. Div. (11 pp.) The court reverses summary judgment entered in favor of municipality, dismissing plaintiff s complaint for reimbursement (pursuant to a lease agreement) of real estate taxes it allegedly paid on a parking lot, adjacent to its amusement park, leased to the municipality. CRIMINAL LAW AND PROCEDURE Now on Counsel Connect 14-2-9767 State v. Calvin Edmonds, App. Div. (8 pp.) Defendant s conviction for first-degree armed robbery is reversed because the identification charge given to the jury was so insufficient that it deprived defendant of a fair trial. [Approved for publication Aug. 1, 1996.] A Daily Reporter of New Jersey Court Decisions NEXT WEEK IN THE : National franchisers may think twice about expanding their New Jersey presence. A new state Supreme Court ruling says litigation forum-selection clauses in franchise agreements are invalid unless the franchiser can prove it didn’t use its superior bargaining position to pick the forum. See page 1 of the Aug. 5 Law Journal.

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