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Vol. 4 No. 140 – JULY 23, 1996 STATE COURT CASES ARBITRATION — LABOR AND EMPLOYMENT — SECURITIES Now on Counsel Connect 03-2-9668 Jonathan Singer v. Commodities Corp. (U.S.A.), App. Div. (32 pp.) Trial judge erred in holding that plaintiff s claims were not properly arbitrable before the NASD, since plaintiff signed a form when he began his employment, which agreement was subject to NASD amendments, and it is undisputed that plaintiff s wrongful termination claims under the Conscientious Employee Protection Act and the conduct which gave rise to them occurred after the NASD amendments requiring arbitration of such claims were in full force and effect. [Approved for publication July 23, 1996.] CONTRACTS — FRANCHISE AGREEMENTS — FORUM SELECTION CLAUSES Now on Counsel Connect 11-1-9669 Kubis & Perszyk Assocs. Inc. v. Sun Microsystems Inc., et al., Supreme Ct. (48 pp. – includes dissent) Forum-selection clauses in franchise agreements are presumptively invalid, and should not be enforced unless the franchiser can satisfy the burden of proving that such a clause was not imposed on the franchisee unfairly based on the franchiser s superior bargaining power. INSURANCE — VERBAL THRESHOLD 23-2-9670 Mark J. Kaszynski v. Gina M. Gorski, et al., App. Div. (9 pp.) The trial judge correctly dismissed plaintiff s case because his MRI report did not provide the requisite objective medical evidence since it characterized his disc changes as degenerative and reflective of pre-existing arthritic changes, and, although the report alleged aggravation of the degenerative condition, it failed to identify any objective medical evidence of such aggravation, but was predicated solely on plaintiff s subjective complaints. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9671 William W. Dolan v. Bd. of Review, etc., et al., App. Div. (8 pp.) Although the review board did not act improperly in allowing an additional hearing rather than simply relying on an appeal tribunal’s findings, the board erred in failing to supply the parties with a copy of the recommendation of the board s designated appellate specialist for their comments prior to the board s adopting the recommendation verbatim, and in view of this procedural due process violation, the decision finding petitioner ineligible for unemployment benefits is reversed and remanded. LANDLORD/TENANT 27-2-9672 J.D. Constr. Corp. v. Barbara Ostrom Assocs. Inc. v. Int’l Crossroad Holding Corp., App. Div. (16 pp.) (1) Judge correctly found that the contract between landlord and tenant was not integrated, and therefore that the parol evidence rule did not apply to bar evidence of landlord s oral promise to tenant, and (2) that under the circumstances of the case, promissory estoppel is applicable and therefore the statute of frauds does not bar enforcement of the oral promise. NEGLIGENCE — TORT CLAIMS ACT 31-2-9673 Ryan L. Brown, etc., et al. v. Bd. of Educ. etc., et al., App. Div. (3 pp.) Motion judge correctly granted summary judgment based on tort claims act immunity to public school athletic director on parent s claim that they had relied to their detriment on director s advice that any injuries suffered by their son in school wrestling program would be covered by school s insurance. PRODUCT LIABILITY Now on Counsel Connect 32-1-9674 Samuel Gantes, etc., et al. v. Kason Corp., et al., Supreme Ct. (44 pp. – includes dissent) Because Georgia s policy in enacting its 10-year statute of repose does not give rise to a governmental interest that outweighs New Jersey s substantial interest in deterring the manufacture and distribution of unsafe products within this state, the New Jersey statute of limitations is applicable to this cause of action, where plaintiff s decedent was a Georgia resident and the industrial accident occurred in Georgia, but the allegedly defective industrial equipment was manufactured and originally sold in New Jersey by a New jersey corporation. TAXATION 35-2-9675 Emmis Broadcasting Corp. of N.Y. v. Borough of E. Rutherford; Ten Fifty Limited Partnership v. Borough of E. Rutherford; Radio Station WEVD v. Borough of E. Rutherford, App. Div. (12 pp.) Evidence supports Tax Court judge s decisions as to property’s fair market value and percentage constituting wetlands, and that the concrete bases on which radio towers sit are locally assessable as real property, however, the towers themselves are not so assessable. WORKERS COMPENSATION 39-2-9676 Howard Reynolds v. Home Depot, App. Div. (4 pp.) Petitioner failed to make out a prima facie age discrimination case, and the judge properly dismissed petitioner s workers compensation petition seeking benefits from a cardiac event that occurred allegedly as a result of petitioner s being passed over for promotion by his employer. CRIMINAL LAW AND PROCEDURE Now on Counsel Connect 14-2-9677 State v. Michael N. Kouvatas, App. Div. (10 pp.) Due to the city s involvement in misleading defendant as to where his hearing appeal should be filed, defendant was denied his right to due process and a fair hearing as to whether he violated Uniform Fire Safety Act and regulations, as well as the amount of penalties imposed, and the city is estopped from enforcing the penalties against him. [Approved for publication July 23, 1996.] FEDERAL COURT CASES ATTORNEYS — CONFLICTS OF INTEREST — SUBROGATION 04-7-9678 Port Auth. of N.Y. and N.J. v. Arcadian Corp., et al., U.S. Dist. Ct. (9 pp.) In a case arising out of the World Trade Center bombing, the nominally named plaintiff is a client of the attorney who prosecutes the insurer s subrogated claims, and, therefore, plaintiff s attorney is disqualified as counsel in this litigation because of its concurrent representation of insurance carriers who have an adverse interest against the nominal plaintiff in another pending action. [Filed July 3, 1996.] CONSTITUTIONAL LAW — FREEDOM OF EXPRESSION 10-7-9679 Indo-Am. Cultural Soc’y Inc. v. Twp. of Edison, et al., U.S. Dist. Ct. (17 pp.) On plaintiff s challenge to municipal ordinance allegedly abridging its right to conduct Indian cultural festival, because the ordinance in question violates the First Amendment by investing the power to censor speech in the municipal council without the protection of the narrow, objective and definite standards and by placing prior restraints on speech without judicial safeguards, the Court permanently enjoins the ordinance’s enforcement. [Filed July 10, 1996.][For publication.] CORRECTIONS — PAROLE — CIVIL RIGHTS 13-7-9680 Hubert Watson v. Mary DiSabato, et al., U.S. Dist. Ct. (12 pp.) The court holds that a protectable liberty interest exists in parole statutes that create an expectancy of release, but the parole board in this case did not violate plaintiff s civil rights and indisputably satisfied due process by explaining its conclusion that plaintiff was substantially likely to recidivate and by giving him an opportunity to respond. [Filed July 10, 1996.][For publication.] EVIDENCE — POLICE MISCONDUCT — EXPERTS 19-7-9681 Annie Chapple, et al. v. City of Orange Twp., et al., U.S. Dist. Ct. (12 pp.) In a case against police where plaintiff s decedent died while in police custody, although plaintiff s expert does not have medical expertise, he is qualified to render an opinion concerning the decedent’s intoxicated condition as it is relevant to police procedure, based upon his specialized knowledge and police experience with intoxicated arrestees, however, certain portions of the expert s opinion will be barred. [Filed Jul 2, 1996.] INTELLECTUAL PROPERTY — PRELIMINARY INJUNCTION BONDS 53-7-9682 M&R Marking Sys. Inc. v. Top Stamp Inc., et al., U.S. Dist. Ct. (4 pp.) The court denies as unreasonable plaintiff s motion to decrease the amount of the preliminary injunction bond plaintiff was required to post in this infringement action, and also denies the defendant s motion for an increase in that bond. [Filed Jul 8, 1996.] INTELLECTUAL PROPERTY — SANCTIONS AND ATTORNEYS FEES 53-7-9683 Bristol-Myers Squibb Co. v. Ivax Corp., et al., U.S. Dist. Ct. (10 pp.) While the court believes that plaintiff s counsel acted rashly and imprudently in filing the complaint and application for a temporary restraining order, it is not convinced that the actions were taken in bad faith or in pursuit of an improper purpose, and although it is a clear and dismaying example of the decline in professionalism currently plaguing the practice of law, the court declines to impose sanctions upon counsel for his failure to behave politely. [Filed Jul 10, 1996.] A Daily Reporter of New Jersey Court Decisions

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