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Vol. 4 No. 138 – JULY 19, 1996 STATE COURT CASES DEBTOR/CREDITOR 15-2-9647 Midlantic Nat’l Bank, N.A. v. Bruce S. Eagleson, et al., App. Div. (10 pp.) Since there was insufficient evidence for the jury to determine whether bank s conduct in failing to give loan to a corporation caused each defendant to lose his capital investment in and anticipated profits from the corporation, the damage award in favor of defendants on their counterclaim is reversed. 15-2-9648 Nat’l Westminster Bank NJ v. Joann Juliano, et al., App. Div. (2 pp.) In bank s action for rents against judgment debtor’s tenants, judge erred in ruling that bank was entitled to 50 percent of rentals from house the debtor owned as tenant in common with his ex-wife, since creditor is only entitled to half of net rental proceeds, after payment of the mortgage, taxes, insurance and other expenses, and matter must be remanded for a determination of this amount, and the debtor and his ex-wife should be joined as parties to the suit so that the interests of all parties will be protected. ENVIRONMENT — GREEN ACRES 17-2-9649 John J. Hrebin v. N.J. DEP, et al., App. Div. (7 pp.) There was substantial credible evidence in the record to support the DEP s decision granting municipality s request to remove a piece of property from the recreational and open space inventory filed with the state Green Acres program. FAMILY LAW 20-2-9650 James A. Scott v. Deborah Scott, App. Div. (2 pp.) The Family Part judge correctly denied husband s motion to compel wife to pay him a sum equal to her share of negative equity due on the sale of the marital home, since the husband s refinancing of the home, which required the wife to execute a deed, did not constitute a sale within the contemplation of the divorce judgment. INSURANCE — EMPLOYER PROVIDED VEHICLES Now on Counsel Connect 23-2-9651 Donald E. Fiscor v. Atlantic County Bd. of Chosen Freeholders, et al., App. Div. (6 pp.) Employee s automobile insurer was improperly held liable for coverage under the non-owned vehicle provision of the employee’s personal automobile insurance policy for claims that arose out of an accident that occurred while the employee was driving a vehicle owned by his employer, since the vehicle was furnished for the employee s regular use, triggering the policy s exclusion provisions. [Approved for publication July 19, 1996.] LABOR/EMPLOYMENT — BONA FIDE OCCUPATIONAL QUALIFICATIONS Now on Counsel Connect 25-2-9652 Dale Spragg v. Shore Care, et al., App. Div. (41 pp. — includes concurring opinion) In a case where a male health aide sued a hospital for sex discrimination — based on hospital s policy that male aides could not care for women patients even though female aides could care for both genders — (1) there were material facts in dispute that precluded the judge from deciding whether the defendants had made out a bona fide occupational qualification defense as a matter of law, and the judge properly submitted the issue to the jury, however (2) punitive damages award is stricken since there was no proof of wanton, reckless, or malicious conduct on the defendants’ part. [Approved for publication July 19, 1996.] NEGLIGENCE 31-2-9653 Michael D Aloia v. P. Fritze & Sons Inc., et al., App. Div. (3 pp.) Jury verdict is reversed since the trial judge should have charged that violations of the reckless driving and careless driving statutes were negligence. PUBLIC EMPLOYEES 33-2-9654 In the Matter of Alan Morris, etc., App. Div. (6 pp.) It was reasonable for the Merit System Board to decide, based on its medical panel s recommendation, that a 315-pound applicant who had a heart irregularity, did not meet the rigorous physical requirements for a sheriff’s officer job. REAL ESTATE 34-2-9655 Coastal Group Inc., et al. v. Hamarom Assocs., et al., App. Div. (10 pp.) In a breach-of- contract case concerning the sale of a shopping center, since there were critical issues left unresolved regarding seller s certification containing tenant information, as well as seller s knowledge prior to closing that one or more tenants intended to leave, judgment for seller is reversed and matter remanded for reconsideration. FEDERAL COURT CASES LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-9656 Lynn Greenlee v. Actmedia, Inc., et al., U.S. Dist. Ct. (18 pp.) (1) Employee s racial discrimination complaint against his manager is dismissed because an employee cannot be sued in his individual capacity under Title VII. (2) Employee has not established a prima facie case of racial discrimination against the employer, because although he is a member of a protected class as an African- American, he has failed to establish that he was qualified for the position or demonstrated that he performed his job at a level which met the employer s legitimate expectations at the time of his termination. [Filed June 28, 1996.] LABOR/EMPLOYMENT — DISABILITY BENEFITS — ERISA 25-7-9657 Sylvia M. Morton-Smith v. Sea-Land Corp., etc., et al., U.S. Dist. Ct. (20 pp.) On plaintiff s complaint alleging that she was wrongfully terminated based upon her disability: (1) Count one — alleging wrongful termination in breach of an employee benefit plan contract — is preempted by ERISA and was properly removed to federal court; therefore, plaintiff s remand motion is denied. (2) Defendants summary judgment motion on count one is denied, since a fact finder could believe that plaintiff satisfied the conditions necessary for receiving disability benefits, and defendant breached the plan terms in terminating her for failure to comply with the plan’s technical reporting requirements. (3) The court grants defendants motion to dismiss plaintiff s claims under the Rehabilitation Act and the N.J. Temporary Disability Benefits Law since there are no private rights of action under these laws. [Filed July 2, 1996.] A Daily Reporter of New Jersey Court Decisions

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