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Vol. 4, No. 241 — December 19, 1996 THIS WEEK IN THE … Flexing a muscle rarely seen at the county level, an assistant prosecutor wins a presentment charging the Department of Environmental Protection with ineffective regulation and failure to address public health problems. See page 5, Dec. 16 issue. STATE COURT CASES ATTORNEY/CLIENT — ENTIRE CONTROVERSY 04-2-0827 Wills v. Morrison, et al., App. Div. ( 21 pp.) With one exception, the trial court correctly applied the entire controversy doctrine to bar plaintiff’s legal malpractice claims based on certain of the transactions handled by defendants, since the claims should have been raised in litigation arising out of those transactions, however, the entire controversy doctrine does not bar the counterclaim for legal fees covered by the retainer agreement between the parties, and the judge erred in so ruling. Upon remand for consideration of the fee counterclaim, plaintiff shall be allowed to raise the substance of her malpractice claims, however, as a defense to the value of defendants’ services in the fee action. BANKRUPTCY 42-2-0828 Delliturri v. Caglianone, et al., App. Div. (9 pp.) The court reverses summary judgment dismissing plaintiff’s suit seeking to set aside a land conveyance from debtor to third parties, since the trial judge mistakenly found the debtor’s bankruptcy plan discharging stockholders — including debtor — from this and other obligations to be clear on its face and binding; the court finds the plan ambiguous, especially to a lay person such as plaintiff, and remands the matter for further proceedings. CORRECTIONS 13-2-0829 Jaludi v. N.J. Dept. of Corrections, App. Div. (3 pp.) Collection of a urine specimen did not substantially burden the inmate’s exercise of religion in violation of the Religious Freedom Restoration Act of 1993, and, even if they did, the Act is not violated where, as here, the institution’s procedures are in furtherance of a compelling governmental interest — the unauthorized use of narcotics in prisons. EDUCATION — LABOR 16-2-0830 Bd. of Education of Middletown Twp. v. Middletown Twp. Education Assn., App. Div. (9 pp.) In a case dealing with the reprimand of defendant’s representative for his comments at a public Board meeting regarding the annual Vandalism, Violence and Substance Abuse Report and the status of a board member involved in contract negotiations, the hearing officer and PERC correctly found that the representative’s comments — including calling the member a “lying scuzzball” — fell within the realm of protected conduct because he was demanding accuracy in reporting a mandatory negotiable subject, and the fact that plaintiff began an investigation three months after the incident and issued a reprimand to the representative only after he had engaged in other activities against the Board was evidence that the reprimand had an anti-union animus. FAMILY LAW 20-2-0831 Essex Cy. Office of Child Support Enforcement, etc. v. Salau, App. Div. (26 pp.) In a case dealing with multiple child support issues, inter alia, although daughter was effectively emancipated for certain purposes since she received financial support from DYFS under an independent living arrangement, and appeared to have no meaningful contact with her parents prior to and during her years at college that would suggest parental control, nonetheless the DYFS agreement preserved the bundle of rights and responsibilities that attach to parenthood, and to the extent that defendant’s relinquishment of control of his daughter was engendered by his own conduct and failure to support her — necessitating DYFS involvement — the judge correctly ruled that it would be inequitable to permit him to rely on the daughter’s independent living arrangement to declare her emancipated. 20-2-0832 Giannetti v. Deock, App. Div. (7 pp.) Post-judgment matrimonial order denying a change in custody from defendant mother to plaintiff father is affirmed, since the judge saw and heard witnesses for three weeks and rendered a reasoned decision, and procedural errors were insignificant. INSURANCE — UIM COVERAGE 23-2-0833 Magnifico v. Rutgers Casualty Ins. Co., et al., App. Div. (9 pp.) (1) Since the court in Aubrey concluded that even an injured adult child who resides with a parent is not entitled to the greater UIM benefits provided under the parent’s policy, it follows that a person, like plaintiff, who is only a passenger in an unrelated person’s vehicle would not reasonably expect to receive the full amount of UIM benefits afforded under the driver’s automobile liability policy; although this is dictum in the Aubrey opinion, it is deliberate dictum and followed by the court here. (2) Under American Reliance Ins. Co. v. American Casualty Co., the court affirms decision of trial judge imposing responsibility for payment of the UIM benefits upon driver’s insurer, rather than plaintiff’s, but limiting the amount of such benefits to the UIM coverage provided under plaintiff’s policy. 23-2-0834 Prudential Property and Casualty Ins. Co. v. Fitzgerald, App. Div. (4 pp.) Since the court in Aubrey concluded that even an injured adult child who resides with a parent is not entitled to the greater UIM benefits provided under the parent’s policy, it follows that a person, like plaintiff, who is only a passenger in an unrelated person’s vehicle would not reasonably expect to receive the full amount of UIM benefits afforded under the driver’s automobile liability policy; although this is dictum in the Aubrey opinion, it is deliberate dictum and followed by the court here. LABOR AND EMPLOYMENT — PUBLIC WORKS BOND ACT 25-2-0835 Quayle v. Tri-Con Constr. of North Jersey, Inc.., et al., App. Div. (6 pp.) In a case discussing the determination of the date from which a project is to be deemed accepted when a Prevailing Wage Act claim is made against the surety bond required by the Public Works Bond Act, the court determines that the motion judge erred in denying as untimely plaintiffs’ motion to amend their complaint to add the issuer of the performance and payment bond, finding that the contract was not “complete” nor was the “acceptance” final and unconditional as required under N.J.S.A. 2A:44-146. [Approved for Publication Dec. 19, 1996.] LAND USE 26-3-0836 Sod Farm Assoc. v. Springfield Twp. Planning Bd., et al., Law Div. (21 pp.) Judge upholds municipality s action — excluding plaintiff s property from the wastewater management plan and in changing the applicable zoning classifications — because the record revealed that there was a proper zoning purpose supporting their determination, to wit, the preservation of both a rural lifestyle and agriculture as an economically viable business. [Underlying decision to 26-2-0818 reported in yesterday's Alert.][Approved for publication Dec. 18, 1996.] NEGLIGENCE 31-2-0837 Walker v. Robert Wood Johnson University Hospital, App. Div. (10 pp.) In a case where meter reader won a judgment for injuries suffered when he fell through a deteriorated step on defendant’s premises, the trial court erred by not permitting defendant to cross-examine plaintiff concerning inconsistencies in his deposition and trial testimony and precluding evidence concerning plaintiff’s prior injuries, and judgment is reversed. NEGLIGENCE — LANDOWNER LIABILITY 31-2-0838 Dolan, et al. v. Coastal Oil Co., etc., App. Div. (6 pp.) In a case where plaintiff was seriously injured while riding his dirt bike on defendant’s land, the court correctly applied the Landowner Liability Act and granted summary judgment to the defendant based on the immunity contained in that Act, finding that none of the statutory exceptions applied, and the court rejects plaintiff’s argument that the act only applies to remote properties, unlike defendant’s property which is adjacent to a school and residences, as well as plaintiff’s argument under the attractive nuisance theory. NEGLIGENCE — OCCUPATIONAL DISEASE 31-2-0839 Murphy v. Port Authority of N.Y. and N.J., etc., et al., App. Div. (8 pp.) The court affirms judgment in favor of PATH worker who suffered from pulmonary problems as a result of exposure to dust and fumes at his workplace, finding, inter alia, that judge correctly concluded that the case was brought within the limitations period under the Federal Employer’s Liability Act, and that trial court properly refused to permit defendant’s medical expert to use photographic slides for demonstrational purposes depicting differences between obstructive lung disease caused by smoking as compared with restrictive lung disease caused by occupational exposures. TAXATION 35-2-0840 The Equitable Life Assurance Society of the U.S. v. Town of Secaucus, App. Div. (10 pp.) Tax Court judgment reducing the real property assessment on the Meadowlands Hilton Hotel for certain years is affirmed, as Tax Court judge properly applied the “Parkview presumption” for valuation. WORKERS’ COMPENSATION — SPECIAL EMPLOYEES 39-1-0841 Kelly v. Geriatric and Medical Services, Inc., etc., Supreme Ct. (3 pp.) Petitioner’s voluntary acceptance of skilled nursing work at defendant’s facility, although she was paid by a temporary labor services company, gave rise to an implied contract of employment, making her a special employee of the facility, and her personal injury suit was barred by the N.J. Workers’ Compensation Law. CRIMINAL LAW AND PROCEDURE 14-2-0842 State v. Milligan, App. Div. (8 pp.) DWI conviction is reversed, since defendant’s statements — when he realized that he was going to be sentenced for DWI instead of merely careless driving — clearly implied that he wished to withdraw his guilty plea, he should have been allowed to do so. FEDERAL COURT CASES CIVIL PROCEDURE — ENTIRE CONTROVERSY — ATTORNEY MALPRACTICE 7-7-0843 Federal Deposit Insurance Corporation, et al. v. Jeffrey S. Mintz, Administrator, et al., U.S. Dist. Ct. (9 pp.) The entire controversy doctrine does not require the FDIC (as a bank’s successor) to have brought malpractice claims against the attorneys in its first suit against the debtors on one loan, then bring claims against all other defaulting debtors on other loans while joining any malpractice claims relating to those other loans with the malpractice claims against the same attorneys in the first suit. [Filed Dec. 18, 1996]. LANDLORD/TENANT — RENT CONTROL 27-7-0844 440 Company v. Borough of Fort Lee, et al., U.S. Dist. Ct. (14 pp.) Rent control ordinance that allows vacancy decontrol for single-family, condo and coop rental units but not apartment buildings is constitutional because supported by a rational basis: the housing shortage, the tendency of large landlords to be rent maximizers, and the need to prevent landlords from having an incentive to force tenants to vacate units. [Filed Dec. 17, 1996] [For publication]. LABOR AND EMPLOYMENT — ARBITRATION 25-7-0845 Farmland Dairies, Inc. v. Milk Drivers & Dairy Employees Union Local 680, et al., U.S. Dist Ct. (29 pp.) 1) Disputes over alleged violations of the grievance and arbitration and no-strike clauses, including claims against non-signatory officers of the union, and calculation of damages, if any, must be submitted to arbitration under the collective bargaining agreement. 2) Plaintiff’s amended claims under the Civil Rights Act, federal common law and state law prohibiting tortious interference with contracts, and violations of section 303 of the Labor Management Relations Act, are dismissed as futile under F.R.Civ.P. 12(b)(6). [Dec. 16, 1996] [For publication]. A Daily Reporter of New Jersey Court Decisions

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