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Vol. 4, No. 248 — December 31, 1996 STATE COURT CASES ESTATES 38-2-0899 I/M/O Nicholas Jutchenko, Jr., etc., deceased, App. Div. (4 pp.) It was not error for the judge to appoint a non-heir, third party attorney as the administrator ad prosequendum to pursue wrongful death and/or survivorship actions on behalf of decedent’s estate in light of the history of decedent’s parents’ marital discord and various claims of parental neglect as reflected in the court records of the Family Part. GOVERNMENT — PUBLIC BIDDING 21-1-0900 N.E.R.I. Corp., et al. v. N.J. Highway Authority, et al., Supreme Ct. (44 pages — includes dissent) The New Jersey Highway Authority Act, specifically N.J.S.A. 27:12B-5.2, requires the N.J. Public Highway Authority to publicly bid its towing and storage contracts for the Garden State Parkway. NEGLIGENCE — SUPERMARKETS — EVIDENCE 31-2-0901 Thomas v. Supermarket General Corp., App. Div. (3 pp.) The court affirms judgment of no cause in plaintiff’s case — for injuries sustained in a slip and fall on a puddle of liquid detergent on the floor of defendant’s supermarket — and finds without merit the plaintiff’s claims (1) that photographs were not properly authenticated, (2) that defendant had an obligation to present affirmative evidence to disprove negligence, and (3) that there was error in not permitting plaintiff’s expert to testify about the viscosity of the spilled liquid detergent. FEDERAL COURT CASES CIVIL PROCEDURE — ADDING PARTIES 07-7-0902 Compania Agricola De Seguros, S.A., et al. v. American Centennial Ins. Co., U.S. Dist. Ct. (3 pp.) Since the court is aware, from its almost decade-long involvement in this and other related cases, that one proposed new defendant did play some part in the actions at issue in this matter, and since adding just that defendant (instead of the eight originally sought) will not cause the lengthy delays feared, considering the interests of equity and judicial resources, the Letter Order of the magistrate judge denying the motion to amend the complaint is reversed only insofar as it pertains to the one defendant. [Filed Dec. 17, 1996.] NEGLIGENCE — SKIING — LIFT TICKETS 31-7-0903 Budwick v. Killington, Ltd., U.S. Dist. Ct. (16 pp.) Defendant’s motion to transfer this action to Vermont is granted because the ski lift ticket purchased by plaintiff contains a forum selection clause designating Vermont as the only proper venue, and this, in conjunction with other Sec. 1404(a) factors, warrants a transfer in the interests of convenience and justice. [Filed Dec. 5, 1996.] PHYSICAN/PATIENT — INSURANCE — ERISA — REMAND 29-7-0904 Doe #1, et al. v. Christman, et al.; Morris Home Care, Inc. v. Jane Doe #1, et al., U.S. Dist. Ct. (9 pp.) In a medical malpractice case arising out of the wrongful disclosure of patient’s HIV-positive status, wherein a third party claim for payment of nursing services was brought, the court finds that, (1) even though the third party claim is for unpaid nursing services and for insurance coverage of those services, and therefore relates to benefits subject to ERISA, the ERISA claim does not create exclusive federal jurisdiction, and therefore the case may be remanded, and (2) the court holds that the third party defendant did not have standing to remove case to federal court under Sec. 1441(c), and grants remand. [Filed Dec. 13, 1996.] CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS — CIVIL RIGHTS 14-7-0905 Benson v. N.J. State Parole Bd., et al.; Benson v. DiSabato, et al., U.S. Dist. Ct. (20 pp.) In a case requiring the court to determine whether a prisoner who claims that he has been denied a timely parole hearing, and who challenges an allegedly erroneous calculation of his parole eligibility date, may simultaneously seek habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, and a declaratory judgment and damages pursuant to the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, the court holds that because prisoner’s 1983 complaint is, in effect, a challenge to the outcome of a parole decision, the issue “lies at the intersection of the two most fertile sources of prisoner litigation,” and must be resolved in favor of an exclusive habeas corpus remedy. [Filed Dec. 6, 1996.][For publication.] CRIMINAL LAW AND PROCEDURE — INDICTMENTS 14-7-0906 U.S.A. v. Sourlis, U.S. Dist. Ct. (24 pp.) (1) Conspiracy count of indictment can be read to include continuity in purpose, performance, and result, and because there is no conspicuous discontinuity in the contemplated activity, count is not duplicitous, even if the variance theory standards were applicable. (2) Bank fraud counts of indictment each allege a separate and single transaction, and a distinct offense, and are not duplicitous. (3) The indictment does not violate the rules of joinder, nor the ex post facto clause. (4) Defendant’s discovery requests — for disclosure of all Brady–Giglio–Agurs material, for premarking and copying of government exhibits, for Jencks Act material, and supplying witnesses’ statements — are granted. (5) Defendants’ motion for a bill of particulars is denied. (6) The government’s motion for reciprocal discovery is granted. (7) The defendants are ordered to produce a written summary of the testimony of their polygraph expert. [Filed Dec. 16, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE NEW JERSEY LAW JOURNAL … The Internal Revenue Service will send letters to 424 New Jersey attorneys, warning them to send in unpaid state and federal taxes within 30 days or face fines. See page 7 of the Jan. 27 Law Journal.

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