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Vol. 4 No. 133 – JULY 12, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-9562 First Morris Bank, etc. v. Ronald R. Nutt Sr., et al., App. Div. (9 pp.) Trial judge erred in ordering that judgment proceeds deposited with court be paid to client, finding that attorney had violated RPC 1.8 by taking an assignment of his client s cause of action, since there were factual issues left unexplored, and matter is remanded for a full evidential hearing. CIVIL PROCEDURE 07-2-9563 Ruth Samuel v. Grand Subaru Inc., etc., et al. v. Peter Turkl, App. Div. (5 pp.) Since the facts indicate a continuous pattern of inaction by defendants in their failure to respond to scheduled hearings and court notices, their conduct constitutes inexcusable neglect and the order denying their motion to vacate default is affirmed. CONTRACTS — FRANCHISES 11-2-9564 Cambria Automotive Cos. Inc., et al. v. Gen. Motors Corp., et al., App. Div. (17 pp.) (1) Material misstatements made in plaintiffs franchise application tolled the time period within which defendant GMC had to respond to plaintiff’s franchise transfer request, making GMC s rejection timely, and (2) even if the time period were not tolled, under the circumstances, the rejection was otherwise timely. (3) Plaintiffs common law tortious interference claims were properly dismissed as preempted by the Franchise Practices Act and the holding of Tynan v. Gen. Motors Corp. DEBTOR/CREDITOR — FAMILY LAW 15-2-9565 First Sav. Bank, SLA, etc. v. Gloria D Agostino, et al., App. Div. (3 pp.) Court correctly held that defendant s mortgage — given by her ex- husband in divorce settlement — had priority over plaintiff bank s mortgage, since bank s failed to obtain a subordination agreement, and doctrine of equitable subrogation does not apply to the facts of this case. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9566 S.L. v. D.T.S., App. Div. (5 pp.) The highly conclusory and general findings made by the Family Part judge — finding that defendant committed harassment by telephone calls — cannot be said to have been reached on sufficient, credible evidence, and matter is reversed and remanded for further proceedings. GOVERNMENT — ATTORNEYS — ETHICS — COUNSEL FEES 21-2-9567 Kenneth A. Vercammen v. Ann P. Lewis, etc., et al. v. Martin Spritzer, etc., et al., App. Div. (9 pp.) Trial judge correctly found (1) that the chairwoman of municipal ethics board had absolute immunity from any claims arising out of her actions in filing ethics complaint against plaintiff, the former municipal public defender, (2) that plaintiff had failed to articulate his civil rights claims against defendants, and (3) that plaintiff had failed to establish the elements of a common law malicious prosecution action, however, (4) since the ethics complaint was clearly a job-related action, and since plaintiff had been assured that he would be provided with counsel in such instances, judge improperly denied plaintiff counsel fees. INSURANCE 23-2-9568 Jeffrey Nass v. Atl. Employers Ins. Co., etc., App. Div. (6 pp.) Since statute and regulations applicable to physical damage insurance provisions are specific, the trial judge erred when he determined that insured was entitled to coverage, despite insured’s failure to comply with the physical damage insurance provisions. INSURANCE — P.I.P. 23-2-9569 Jared Weinstein, et al. v. N.J.A.F.I.U.A., etc., et al., App. Div. (6 pp.) Medical evidence was sufficient to support judge s finding that brain-stem stroke plaintiff suffered four weeks after the accident was related to the accident, entitling him to PIP benefits for his resulting quadriplegia. INSURANCE — VERBAL THRESHOLD 23-2-9570 Viola Taylor v. Alfred Hughes, App. Div. (5 pp.) The motion judge was incorrect in his determination that there was a lack of a doctor s opinion that plaintiff s physical disability caused by the accident objectively had the capacity to create the noted impact upon plaintiff’s life, and summary judgment in favor of defense is reversed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9571 Patricia MacKinnon v. Dept. of Labor, et al., App. Div. (4 pp.) While school bus driver initially was faced with some uncertainty respecting whether she would be rehired for the next school year, entitling her to unemployment benefits, whatever apprehension she may have harbored should have been dissipated by the board of education s rehiring resolution in mid-July, and since, at that point, she was reasonably assured she would be reemployed, there was no arbitrariness in decision ordering her to refund unemployment benefits received after mid-July. 25-2-9572 A. Gayle Curran v. Dep’t of Labor, et al., App. Div. (4 pp.) While school bus driver initially was faced with some uncertainty respecting whether she would be rehired for the next school year, entitling her to unemployment benefits, whatever apprehension she may have harbored should have been dissipated by the board of education s rehiring resolution in mid- July, and since, at that point, she was reasonably assured she would be reemployed, there was no arbitrariness in decision ordering her to refund unemployment benefits received after mid-July. NEGLIGENCE — INFLICTION OF EMOTIONAL DISTRESS 31-2-9573 Marisol Rosario v. Cooper Hosp./Medical Ctr., et al. v. Gabriel Soria, et al., App. Div. (15 pp.) The court affirms summary judgment dismissing plaintiff s complaint for negligent or intentional infliction of emotional distress — related to defendants alleged mishandling of her stillborn fetus by conducting a baptism without her consent while she was in a coma and by failing to arrange for a proper burial — since plaintiff s mother, acting as her guardian while she was in the coma, had indicated that the hospital could make burial arrangements, and the conduct of the nurse in conducting the baptism did not rise to the level of a tort. PRODUCT LIABILITY 32-2-9574 Dorothy Frankenbush v. Showa Denko, et al., App. Div. (3 pp.) Trial court correctly found that plaintiff s expert s report — indicating that her physical condition may or may not be related to defendant s L-Tryptophan product — was insufficient to establish that her ailments were causally related to the product, and dismissal of her complaint is affirmed. PUBLIC EMPLOYEES 33-2-9575 In the Matter of Jay Berry, et al., App. Div. (4 pp.) Decision of the Merit System Board imposing a six-month suspension on a senior security officer — who broke into college’s main administration building and rummaged through confidential files maintained by the college president — is reversed and remanded for an entry of an order of removal, since the officer’s conduct constituted a fundamental breach of trust, however, the three-day suspension ordered for a junior security officer is affirmed, since he was following and acting at the direction of his superior in entering the building, and did not examine the files. TAXATION 35-5-9576 Paul Wishnick, et al. v. Upper Freehold Twp., Tax Ct. (14 pp.) Where taxpayers listed one specific crop on farmland assessment application and municipal assessor inspected taxpayers property based on that claim, finding no evidence of any agricultural activity, taxpayers could not base their farmland assessment claim on another type of crop actually planted on the property later in the year, since the municipality was entitled to rely on the application and was prejudiced in its investigation of the property by the application. CRIMINAL LAW AND PROCEDURE Now on Counsel Connect 14-2-9577 State v. Ricky L. Huff, App. Div. (13 pp. – - includes dissent) (1) First-degree robbery conviction is sustained where defendant, although unarmed, simulated a gun by patting his waist, covered by a loose-fitting coat, and proclaiming I have a gun here, as he demanded money in the convenience store cash register, and (2) there was no prima facie showing of discrimination in exclusion of black juror since the state proffered a reasonable nondiscriminatory basis for the challenge. [Approved for publication July 12, 1996.] CRIMINAL LAW AND PROCEDURE — VICTIMS COMPENSATION 14-2-9578 In the Matter of Lillian Kline, App. Div. (4 pp.) The Violent Crimes Compensation Board interpreted the relevant statute too narrowly in concluding that the disabled victim here was not a person injured by the crime in ruling her disqualified for benefits, where her guide-and-support dog was attacked by teenagers, making the dog temperamentally unfit to continue to carry out its guide-and-support duties without expensive reprogramming or even replacement. FEDERAL COURT CASES JURISDICTION — TRADEMARK/PATENT LICENSING AGREEMENTS 24-7-9579 Eaton Corp. v. Maslym Holding Co., et al., U.S. Dist. Ct. (17 pp.) (1) Systematic and continuous contacts are not present in this case to justify general jurisdiction over defendants, who are not incorporated in New Jersey, maintain no office here, and do not conduct their business in or through New Jersey, and where the only contacts that exist consist of correspondence, a few visits by defendants representatives, and payments made by defendant to plaintiff in New Jersey. (2) Although the court finds that the contract’s future consequences along with the parties actual course of dealing justify a finding of minimum contacts for purposes of specific jurisdiction, the inquiry does not end there, and, examining the case under the notions of fair play and substantial justice, the court concludes that there is no personal jurisdiction over the defendants, and dismisses the trademark/patent licensing agreement suit. [Filed June 28, 1996.][For publication.] TAXATION — EXCISE TAXES 35-7-9580 Bodine Oil Inc. v. U.S.A., etc., U.S. Dist. Ct. (10 pp.) Because plaintiff, a home heating oil supplier, was not the ultimate purchaser of the home heating oil in question, there is no statutory basis to support its suit for a refund of excise taxes it paid on the oil. [Filed April 19, 1996.][For publication July 1, 1996.] A Daily Reporter of New Jersey Court Decisions

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