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Vol. 4 No. 135 – JULY 16, 1996 STATE COURT CASES ATTORNEY/CLIENT — ENTIRE CONTROVERSY Now on Counsel Connect 04-2-9592 Dorothy Donohue, etc., et al. v. Clifford N. Kuhn Jr., App. Div. (7 pp.) Since plaintiff should have joined her legal malpractice case with a pending survivorship action once the wrongful death case was dismissed on statute of limitations grounds, the court erred in denying defendant’s motion to dismiss the malpractice case based on entire controversy grounds. [Approved for publication Jul. 16, 1996.] ATTORNEY/CLIENT — FEES — LIENS Now on Counsel Connect 04-2-9593 Cole, Schotz, Bernstein, etc. v. Carole Owens, App. Div. (12 pp.) Where law firm initially moved for the imposition of a charging lien instead of filing a complaint or giving the appropriate pre-action notice that arbitration was available as a remedy, the lien it obtained is invalid, and trial judge correctly ruled that lis pendens based on the lien was void and his release of escrowed funds to client was correct. [Approved for publication Jul. 16, 1996.] CONTRACTS — AGENCY — CONSIGNMENTS 11-2-9594 Lee B. Levy v. Garden State Horse Sales Co., et al., App. Div. (7 pp.) Horse broker, as agent for a fully disclosed principal (horse seller) is not personally liable on the contract nor responsible for its performance, and judge erred in holding broker responsible to plaintiff for allegedly defective race horse. CONTRACTS — GOVERNMENT Now on Counsel Connect 11-2-9595 Camden County, etc. v. South Jersey Port Corp., etc., et al., App. Div. (10 pp.) Construing an agreement between county and defendant — whereby defendant was to make certain payments to county in lieu of taxes — the court correctly concluded that the parties did not intend to relieve the defendant of its obligations under the agreement should the Legislature not appropriate certain funds for defendant, which then had a net operating loss and could not make the payments, and the defendant’s reliance on the doctrines of frustration of purpose and impracticability are misplaced. DEBTOR/CREDITOR — MORTGAGE PRIORITY — HOME EQUITY LOANS 15-2-9596 Valley Nat’l Bank of Arizona v. Midlantic Nat’l Bank, et al., App. Div. (6 pp.) Since both parties were at fault in failing to safeguard against problems where homeowners took additional credit on their home equity loan during their refinance recission period, the trial court’s decision that former third mortgagee s lien — the home equity line of credit — had priority over plaintiff’s refinance mortgage is reversed. FAMILY LAW — CUSTODY 20-2-9597 Edith Castellon v. Reinaldo Gonzalez, App. Div. (7 pp.) Judge correctly declined to change custody because plaintiff failed to promptly challenge the original custody order and because of the absence of any proof of change of circumstances to support such a change. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9598 B.B.D. v. G.P.D., App. Div. (3 pp.) Where defendant s conduct amounted to a singular incident in which he took plaintiff’s love letters and a piece of her mail, and tempers flared, the domestic violence finding is reversed. FAMILY LAW — RIGHT TO JURY TRIAL Now on Counsel Connect 20-1-9599 Mary Brennan v. Joseph S. Orban, Jr., Supreme Ct. (41 pp. — includes concurring/dissenting opinion) Because of the divisibility of claims, the public interest in vindicating the policy against domestic violence outweighs in significance the competing state policies that favor resolution in a single proceeding of all family matters in dispute, and, in such a case, the court should exercise its discretion to afford a jury trial to a victim of a marital tort. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9600 Franco Paoletti v. Bd. of Review, et al., App. Div. (6 pp.) The record does not support the board’s conclusion that one college’s sponsorship of petitioner — a visiting Italian research scientist — significantly restricted his availability for work, and he was improperly denied unemployment benefits during a period when the college did not need him, since he could have, and tried to, work for other colleges during that period. NEGLIGENCE 31-2-9601 Nicholas Maffei, et al. v. Mario’s Pizza, App. Div. (6 pp.) Motion judge correctly concluded that the statute of limitations barred plaintiffs’ claim against defendant since he determined that plaintiffs knew or should have known that they contracted hepatitis from defendant’s food during the statutory two-year period. 31-2-9602 Jeremy Giannotti v. Nick Spaich, et al., App. Div. (13 pp.) In a case arising out of an altercation in a convenience store parking lot, it was error for the judge to have instructed the jury not to consider plaintiff’s comparative negligence and the judge also should have instructed the jury on agency, therefore, a verdict finding that convenience store was 62 percent negligent is reversed and remanded for a new trial. NEGLIGENCE — SOCIAL DANCING 31-2-9603 Linda Daniels v. Frank Snyder, et al., App. Div. (13 pp. — includes concurring opinion) The judge erred when he entered summary judgment in favor of defendant — in a case for injuries suffered when plaintiff fell while dancing the polka with defendant at a wedding reception –since being grabbed and dragged to the ground by a falling dance partner is not a risk inherent in the activity of social dancing. PARTNERSHIPS — JURIES Now on Counsel Connect 02-1-9604 Lyn-Anna Properties, Ltd., et al. v. Harborview Dev. Corp., et al., Supreme Ct. (30 pp.) In the circumstances of this case, the fiduciary relationship between the attorney-partner and the counterclaiming partner was sufficiently related to the equitable oversight of the partnership affairs to warrant the Chancery Division’s retention of jurisdiction of the counterclaim. PHYSICIAN/PATIENT 29-2-9605 Cynthia Ludovico, et al. v. Frank DiGregorio, App. Div. (8 pp.) The trial court erred in ruling that informed consent was not part of this medical malpractice case, thereby precluding plaintiffs from fully developing that theory as an element of their cause of action and keeping that issue from the jury. PRODUCT LIABILITY Now on Counsel Connect 32-2-9606 David Mettinger v. W.W. Lowensten Inc., et al., App. Div. (29 pp.) In a case where convenience store employee was severely injured on a meat slicing machine distributed by defendant and manufactured by a defunct corporation, (1) the trial judge s use of the consumer expectations’ test, rather than a risk-utility analysis, for design defect was correct, however, (2) the judge s granting of summary judgment in favor of the defendant which acquired the assets of the defunct manufacturer is reversed. [Approved for publication Jul. 16, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-9607 State v. Arnold W. Dixon, App. Div. (14 pp.) Defendant should have been permitted to review pertinent portions of police officer’s personnel file regarding repeated instances of apparent misconduct by that officer involving DWI arrests and Breathalyzer tests, and the failure to reveal this information to the defendant and to permit the officer’s full cross-examination on these critical matters requires a new trial in this close case. Now on Counsel Connect 14-2-9608 State v. Jaleel Abdul Malik-Ismail, App. Div. (10 pp.) Where defendant had agreed to cooperate with law enforcement personnel, and described in open court and under oath his participation in a murder conspiracy, later giving a confirming statement to the prosecutor’s office, the state properly interviewed the defendant with respect to that statement in order to preserve his testimony at trial, and the application of Miranda to suppress the interview was erroneous. [Approved for publication Jul. 16, 1996.] FEDERAL COURT CASES INTELLECTUAL PROPERTY — SETTLEMENTS — JURISDICTION 53-7-9609 Placontrol Inc., et al. v. Seneca Laboratories Inc., et al., U.S. Dist. Ct. (18 pp.) Since a Massachussetts court neither expressed an intent to retain jurisdiction over a settlement agreement, nor incorporated the agreement into a court order, nor made the agreement part of the record of the proceedings before it, this court can discern no basis for exercising subject matter jurisdiction over a suit seeking to enforce the terms of that settlement agreement, and denies plaintiffs’ motion to enjoin the Massachussetts action. [Filed Jun. 27, 1996.] JURISDICTION — SECURITIES 24-7-9610 Lorraine Derensis, et al. v. Coopers & Lybrand Chartered Accountants, et al., U.S. Dist. Ct. (25 pp.) (1) Although some private interest factors — in this class action alleging misrepresentation in a securities opinion letter — favor the Canadian forum urged by the defendants, the public interest factors overwhelmingly favor New Jersey, and the court concludes that the balances of the interests favors the New Jersey forum and denies defendant’s motion to dismiss for forum non conveniens. (2) Since plaintiffs have made a prima facie showing that defendants are controlling persons who allegedly approved and disseminated financial statements that they knew would influence NASDAQ securities prices, the defendants are subject to the jurisdiction of the court and their motion to dismiss for lack of personal jurisdiction is denied. [Filed March 12, 1996.][For publication July 1996.] LABOR AND EMPLOYMENT — JUDICIAL ESTOPPEL 25-7-9611 Barbara Morris, et al. v. Siemens Components Inc., et al., U.S. Dist. Ct. (32 pp.) Employee is judicially estopped from contending that her termination violated the L.A.D. when, at the time of her discharge, she had filed applications for short- and long-term disability benefits stating that she was totally disabled and could not work. [Filed May 31, 1996.] NEGLIGENCE — JUDICIAL ESTOPPEL 31-7-9612 Jorge Carnero v. Kimberly Deitert, U.S. Dist. Ct. (13 pp.) Defendant is judicially estopped from claiming that she was not the driver of a truck that hit plaintiff in light of defendant’s municipal court guilty plea to careless driving and the admission that she was the driver in New York litigation of the matter, and, since the evidence supports the finding of liability for negligence as a matter of law, summary judgment is entered against the defendant on liability. [Filed Jun. 26, 1996.][For publication.] CRIMINAL LAW AND PROCEDURE — MONEY LAUNDERING/FORFEITURE 14-8-9613 U.S.A. v. John Voigt, Third Cir. (121 pp.) (1) Defendant’s claim that the government’s use of an acquitted co- defendant — allegedly defendant’s former attorney — as a confidential informant against him constituted outrageous government conduct in violation of the Fifth Amendment’s Due Process Clause fails as a matter of law because defendant failed to establish the government’s objective awareness of an attorney- client relationship during the period in question, and there was insufficient evidence in the record as to the requisites of purposeful intrusion and prejudice. (2) The district court did not violate defendant’s Sixth Amendment right to counsel of choice when, citing potential conflicts, it disqualified one of his attorneys. (3) The proper burden of persuasion for forfeiture proceedings under 18 U.S.C. 982 is the preponderance standard. (4) Numerous intervening deposits and withdrawals into defendant s account subsequent to the deposit of tainted funds make it impossible to say that jewelry items he purchased were traceable to property involved in the money-laundering offense, and the forfeiture order is vacated. [Filed July 9, 1996.][Related case to 14-8-9614 below.] CRIMINAL LAW AND PROCEDURE — LAY OPINION TESTIMONY 14-8-9614 U.S.A. v. Ralph A. Anderson, et al., Third Cir. (28 pp.) (1) There was no plain error in lay witness’s testimony against one defendant because none of the disputed testimony actually contains a lay opinion by the witness — implicating R. 701 — as to the defendant’s knowledge of money-laundering scam; instead, the witness simply furnished the basis for an inference, from circumstantial evidence, that the defendant had guilty knowledge, which the government was free to suggest during its argument and which the jury was free to accept or reject. (2) As to second defendant, although the lay witness’s testimony failed to meet R. 701(b)’s helpfulness requirement, its admission was harmless error because the circumstantial evidence of the defendant s knowledge was overwhelming, and the government stressed this evidence, not the lay testimony, in its summation, therefore, there is no possibility that the lay testimony contributed to the verdict. [Filed July 9, 1996.][Related case to 14-8-9613 above.] LABOR AND EMPLOYMENT — DISCRIMINATION 25-7-9615 Sgt. Donna M. Hurley v. Atlantic City Police Dep’t, et al., U.S. Dist. Ct. (85 pp.) (1) Evidence of harassment of women other than plaintiff and of events prior to plaintiff’s employment with defendant were properly admitted into evidence because it permitted the jury to gain insight into the defendants’ motives, attitudes and intentions. (2) Jury charge properly presented four separate bases of liability — intentional sexual discrimination, hostile work environment, quid pro quo, and retaliation. (3) Jury charge properly stated that a supervisor may be held liable for affirmative, wrongful conduct that aids or abets another’s discriminatory conduct. (4) A $575,000 award for emotional distress is subject to remittitur to $175,000. (5) A contingency enhancement in plaintiff’s recovery of legal fees in the amount of one-third of the lodestar fee is warranted. [Filed July 12, 1996.] LABOR AND EMPLOYMENT — ERISA 25-8-9616 In re: New Valley Corp. — Senior Executive Benefit Plan Participants, Third Cir. (32 pp.) Retired employees covered under pension plan have opportunity to present extrinsic evidence contradicting clause giving employer unilateral right to terminate the plan, pursuant to federal common law. [Filed July 15, 1996.]

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