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Vol. 4, No. 239 — December 17, 1996 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE 01-2-0792 State v. Wes Outdoor Advertising, App. Div. (10 pp.) Court affirms order of Commissioner of the Department of Transportation assessing penalties against appellant, who obtained billboard permit by fraudulently representing to the DOT that it owned the property on which the billboard had been erected, and who then erected the billboard in violation of size and location regulations. ATTORNEY/CLIENT 04-2-0793 MacDonough v. Rand, et al., App. Div. (8 pp.) In case where plaintiff alleges that his former attorney maliciously abused process by filing a motion under the Frivolous Litigation Act, even though he had agreed to submit “all claims” to fee arbitration, the court correctly dismissed the count since no process outside the scope of the FLA was engaged in that could bring about an improper result. Claim for malicious use of process was properly dismissed as well for failure of plaintiff to satisfy the “special grievance” requirement of that tort. [Companion case to 04-2-0794 below.] 04-2-0794 MacDonough v. Rand, et al., App. Div. (8 pp.) In fourth-party action between plaintiff’s former and subsequent attorneys, malicious abuse of process claim was properly dismissed since motion to disqualify fourth-party plaintiff as plaintiff’s attorney was not an objective unauthorized by the process or outside of the regular conduct of the proceedings, and malicious use of process claims were also properly dismissed as the “special grievance” requirement of that tort was not met. [Companion case to 04-2-0793 above.] CONTRACTS — CLAIM PRECLUSION 11-2-0795 Roico, Inc. v. Scapa Group, P.L.C., et al., App. Div. (13 pp.) In a case involving contract negotiations for the sale of a company dealing in printing, ink and novelties, “conversion issues” and bankruptcy, partial summary judgment was correctly granted to defendants since plaintiff was precluded from relitigating issues already dealt with in a related tenancy court matter, as well as an adversary proceeding in the bankruptcy case. GOVERNMENT — CONTRACTS — CORRECTIONS 21-2-0796 Cy. of Morris v. Fauver, etc., et al., App. Div. (19 pp.) In a case dealing with the reimbursement rate for housing inmates — under a contract where the State provided funds to the county to upgrade correctional facilities, in exchange for which the county agreed to house a certain number of state prisoners — since reasonable minds could not differ in concluding that county could reasonably rely on commissioner’s letter representation of the per diem reimbursement rate, the motion judge erred in trying creatively to construct a limited abandonment theory that reinstated certain other payment provisions. [Approved for publication Dec. 17, 1996.] LAND USE 26-2-0797 Ferrante v. Planning Bd. of Wall Twp., et al., App. Div. (3 pp.) Judge properly dismissed challenge to rezoning ordinance, concluding that the municipality was motivated, at least in part, by valid environmental concerns in the decision, even though that decision had the effect of denying plaintiff’s subdivision application, and that the ordinance was not arbitrary, capricious or unreasonable. NEGLIGENCE 31-2-0798 Lindenmuth v. Holden, App. Div. (14 pp.) (1) Defendant’s stipulation of liability necessarily implied that plaintiff was a passenger in the subject vehicle, and therefore the judge erred in allowing the jury to decide that question, and the verdict in favor of the defendant was a miscarriage of justice and is reversed. (2) Plaintiff’s motion for a new trial should also have been granted on the ground that the trial court erred by permitting certain witnesses to testify, over plaintiffs’ objections, when their names had not been furnished in answers to interrogatories prior to trial as required by court rules. [Approved for publication Dec. 17, 1996.] NEGLIGENCE — AGENCY 31-2-0799 Fortney v. Stuppard, et al., App. Div. (5 pp.) Although the trial judge was apparently attempting to fashion a remedy for a plaintiff who had successfully demonstrated that the driver of the other car had negligently caused substantial damage to plaintiff’s car, the record simply does not support the judge’s finding that the driver was the car owner’s agent at the time of the accident, and judgment against owner is vacated. NEGLIGENCE — TORT CLAIMS ACT 31-2-0800 Steiner v. Suppa’s Club, et al., App. Div. (15 pp.) Since there is no evidence to dispute that the highway guide rail through which plaintiff’s car crashed was constructed pursuant to plans approved by the DOT prior to construction, and not subject to any field alterations, the DOT should have been granted summary judgment based upon the plan or design immunity of the Tort Claims Act. Additionally, plaintiff failed to create an issue as to whether a dangerous condition existed upon the State’s property. PARENT/CHILD 28-2-0801 IMO the Guardianship of CMW, et al., App. Div. (15 pp.) The judge, finding that living at home was harmful to the children’s health and welfare, and that the parents were unwilling or unable to take advantage of DYFS-supplied services and opportunities to remedy the situation, properly terminated parental rights in the best interest of the children. PHYSICIAN/PATIENT 29-2-0802 Muska, etc. v. Memorial Sloan Kettering Hospital, et al., App. Div. (7 pp.) Plaintiff’s expert’s theory that decedent’s death was caused by pneumonia — brought on due to defendant’s severing of a laryngeal nerve in surgery — and not by the progress of decedent’s cancer itself, is an entirely unsupported net opinion and the judge properly dismissed this medical malpractice case. 29-2-0803 J.O. v. Barlotta, et al., App. Div. (4 pp.) In a case where plaintiff alleged that his doctor failed to advise him of alternatives to and the dangers of the long-term use of the drug prednisone, trial court correctly permitted plaintiff’s treating physician, a neurologist, to testify on behalf of the defendant that the drug prednisone was required to properly treat plaintiff, since the neurologist was proffered as fact, not an expert, witness. PUBLIC EMPLOYEES 33-2-0804 IMO Francis X. Maldony, Sr., App. Div. (6 pp.) Although a close case is presented in the action of the Merit System Board in ordering a six-month suspension, as opposed to removal, of long-time inspector of multiple dwellings who had falsified time sheets and call-in logs and had misused his telephone credit card, the result is affirmed as not being arbitrary, unreasonable or capricious. 33-2-0805 Nance v. State, Dept. of Personnel, App. Div. (7 pp.) Merit System Board properly concluded that there were no improprieties in the validity and scoring of the first part of the police sergeant promotional examination on which plaintiff failed to achieve a minimum grade, and, as a consequence, was not eligible for the second part of the examination. REAL ESTATE 34-2-0806 Higgins, et al. v. Fang, App. Div. (20 pp.) The court affirms judgment in favor of plaintiffs-sellers in breach of contract action arising out of the sale of undeveloped land, since the defendants failed to establish grounds for recision of the contract (based on part of the property containing wetlands) since they failed to prove that plaintiffs concealed a known defect or that the condition was not readily observable by the defendants themselves. Claims for mutual mistake or frustration of purpose also are without merit. TAXATION 35-1-0807 N.J. Carpenters Apprentice Training and Education Fund v. Borough of Kenilworth, Supreme Ct. (29 pp.) Training facility owned by plaintiff and used for instruction of journeyman carpenters does not qualify as a “school” under N.J.S.A. 54:4-3.6, and is operated primarily to benefit a particular profit-making sector of the economy, therefore it is not exempt from the payment of real property taxes. TORTS — DEFAMATION 36-2-0808 Wilson v. Grant, et al., App. Div. (16 pp.) Trial judge correctly dismissed plaintiff’s libel claim, finding that caustic radio talk show host’s statement impliedly referring to plaintiff as a “sick, no good, pot-smoking, wife-beating skunk” was not actionable under the circumstances, and was nothing more than mere name-calling or verbal abuse. [Approved for publication Dec. 12, 1996.] WORKERS’ COMPENSATION 39-2-0809 Harris v. Tamcrest Country Club, App. Div. (6 pp.) In case where country club dishwasher mistakenly sprayed oven cleaner in his eye, the court affirms the decision of the compensation judge that found that the dishwasher had a permanent disability of two and one-half percent partial total, optholmologic in nature, for residuals of chronic inflammation and scarring of the left conjunctive and episclera. CRIMINAL LAW AND PROCEDURE 14-2-0810 State v. Gorrell, App. Div. (13 pp.) Trial court erred in excluding evidence of threats offered to impeach the credibility testimony of the witness where the evidence which incriminated the defendant came almost exclusively from that witness. 14-2-0811 State v. McLeod, App. Div. (9 pp.) (1) Although the charge here correctly defined accomplice liability in a general fashion, it omitted a focus on the purpose of this defendant as distinguished from his co-defendant and failed to inform the jury that it could find one defendant guilty of first-degree robbery and the other defendant guilty of a lesser offense. (2) Having omitted to instruct the jury to consider purpose separately as to each defendant in assessing accomplice liability, the court also failed to instruct the jury as to what view of the facts might lead to any of the conclusions that could be reached on the evidence. Both armed robbery and aggravated assault convictions are reversed and defendant’s sentence reduced. [Decided Nov. 22, 1996.] FEDERAL COURT CASES BANKING 06-7-0812 FDIC, etc. v. Moskowitz, et al., U.S. Dist. Ct. (27 pp.) Under the doctrine of equitable fraud, the court grants summary judgment to failed bank’s fidelity bond carrier — on FDIC’s claim that coverage is owed under the bond because bank’s losses resulted from the fraud and dishonesty of bank employees — since the bank falsely responded to a material question in its bond application. [Filed Dec. 2, 1996.][For publication.] LABOR AND EMPLOYMENT 25-7-0813 Downey v. United Food and Commercial Workers Union Local 1262, et al., U.S. Dist. Ct. (55 pp.) Since employee did not exhaust his internal union appeal procedures before bringing this hybrid suit against the union for breaching the duty of fair representation and the employer for breach of the CBA and since employee presented no evidence from which a trier of fact could determine that the union had perfunctorily dismissed his suit to relieve him of the duty to exhaust the internal remedies by appealing to the Executive Board, the defendants’ motions for summary judgment are granted. [Filed Oct. 2, 1996.][For publication.] CRIMINAL LAW AND PROCEDURE — HABEAS CORPUS 14-7-0814 Duarte v. Warden Hershberger, et al., U.S. Dist. Ct. (11 pp.) In a case of first impression in this district, the court considers the applicability of the new one-year statute of limitations to pending non-capital habeas cases, and determines that the statute applies only prospectively; petitioners who are not time-barred under the prior limitations period receive a grace period equal to the new limitations period, and, under that method, the claim of petitioner herein is not time-barred. However, since petitioner has failed to exhaust his state remedies, his petition is dismissed. [Filed Dec. 2, 1996.][For publication.] —END— Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Campbell Soup Co. agrees to pay $141.5 million to settle a class action by retirees who said the company violated the ERISA law when it reduced medical benefits to them and their families. See page 4 of the Dec. 16 Law Journal. [Editor's Note: Sorry for any inconvenience incurred regarding the Daily Decision Alert for Monday and Tuesday. Our DDS Editor is back from vacation now, so we don't anticipate any further problems. The following case was omitted from yesterday's alert.] JURISDICTION — IN PERSONAM 24-7-0615 Morris, et al. v. Davidson, et al., U.S. Dist. Ct. (21 pp.) Under the fiduciary shield doctrine, a transaction of business in the forum state by an individual acting in his or her corporate capacity does not create personal jurisdiction over that individual unless the defendant’s contacts with the forum are the same as those from which the cause of action arose and the defendant derived at least a small amount of personal gain from the business transaction. [Filed Dec. 6, 1996].

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