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Vol. 4, No. 240 — December 18, 1996 STATE COURT CASES CONSTITUTIONAL LAW — FREE SPEECH 10-2-0816 Guttenberg Taxpayers and Rentpayers Assn., et al. v. Galaxy Towers Condo. Assoc., et al., App. Div. (10 pp. – includes Appellate and Chancery Division opinions) Upon remand to analyze and balance plaintiffs free speech rights with defendants private property rights, the trial judge correctly held that plaintiffs were entitled to a declaratory judgment finding unconstitutional the defendants actions prohibiting plaintiffs access to privately- owned condominium property for the purpose of distributing political campaign literature. [For the original Appellate Division decision, see DDS No. 10-2-5853][All three opinions have been approved for publication as of Dec. 17, 1996.] CORPORATIONS 12-2-0817 Concept Omega Corp. v. Scott Adams, App. Div. (10 pp.) In a matter dealing, inter alia, with the termination of defendant as an employee of plaintiff corporation, and the plaintiff s wrongful interference thereafter with defendant s sale of corporate stock, the trial court erred in establishing a remedy without giving the parties the opportunity to argue the merits of the appropriate remedy, or allowing them to offer evidence relevant to whatever remedy may be adopted by the court. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0818 Newlands v. Bd. of Review, App. Div. (5 pp.) Since petitioner was never put on notice that the appeals examiner was contemplating reversing the deputy on an issue that had already been decided in her favor — that work was no longer available after the conclusion of the disability period — the petitioner had no opportunity to offer evidence on that issue and was denied fundamental due process, mandating reversal of the judgment holding that petitioner did not qualify for alternate base year in accordance with N.J.S.A. 43:21-19(c)(2). LAND USE 26-2-0819 Sod Farm Assoc. v. Springfield Twp. Planning Bd., et al., App. Div. (4 pp.) Judge properly upheld 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. [Approved for publication Dec. 18, 1996.] MUNICIPAL LAW 30-2-0820 2 Dempsey Avenue, Inc. v. Borough of Edgewater, etc., App. Div. (6 pp.) The court affirms summary judgment dismissing case wherein plaintiff sought damages on the ground that defendant arbitrarily determined to demolish plaintiff s building, since plaintiff failed to pursue its appeal to the County Board, and the failure to pursue its administrative remedies bars this appeal; additionally, the claim is barred by the Tort Claims Act. WILLS, ESTATES AND TRUSTS 38-2-0821 IMO the Estate of Mary Lacz, deceased, App. Div. (3 pp.) Although a confidential relationship existed between granddaughter and decedent, raising a presumption of undue influence respecting decedent s $75,000 gift to the granddaughter, the judge correctly found that granddaughter s testimony was credible and persuasive enough to rebut the presumption, and dismissed the complaint filed by grandsons, challenging the gift. FEDERAL COURT CASES CIVIL RIGHTS — RECONSIDERATION 46-7-0822 Sacco v. State of N.Y., et al., U.S. Dist. Ct. (4 pp.) In a case where plaintiffs allege that their constitutional rights were violated when they were held in contempt by a N.Y. court for failure to post a bond, the plaintiffs motion for reconsideration of order dismissing case is denied, since the two factual arguments presented by the plaintiffs as overlooked by the court — the fact that an ongoing fine takes the case outside of the statute of limitations, or the allegation that the court mistakenly found that plaintiffs failure to appear was unexplained because plaintiff was incarcerated — have any effect on the fact that the case was also dismissed based on collateral estoppel grounds. [Filed Nov. 27, 1996.] CONDEMNATION — LIMITATIONS 44-8-0823 287 Corporate Center Assoc. v. Bridgewater Twp., Third Cir. (13 pp.) In an inverse condemnation case where plaintiffs sued the municipality under section 1983 and the fifth amendment for allegedly taking plaintiff s property without just compensation — by forcing it to accept conditions as part of a developer s agreement which restricted development and foreclosed proper access to the site — (1) the district court properly applied N.J. s two- year personal injury statute of limitations to plaintiff s section 1983 claim and concluded that the claim was time-barred; (2) The fifth amendment claim is subject at most to a six-year statute, not twenty, and therefore this claim was also properly held time- barred; (3) The taking of the property is not a continuing wrong which tolls the statute of limitations, nor is there an argument for equitable tolling. [Filed Nov. 27, 1996.] LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-0824 Metzler v. Westinghouse Electric Corp., et al., U.S. Dist. Ct. (26 pp.) In a case where plaintiff took action against her supervisor when she discovered he had been guilty of financial improprieties, after which the supervisor made the plaintiff s life miserable, ultimately leading to her leaving her employment, plaintiff has proffered sufficient evidence to defeat the defendants motions for dismissal of her claims for sexual harassment, wrongful discharge in violation of public policy, constructive discharge, breach of contract, breach of the implied covenant of good faith and fair dealing, and the RICO conspiracy claim. Dismissal is granted as to claims for intentional infliction of emotional distress and other direct, non-conspiracy RICO claims. [Filed Nov. 27, 1996.] CIVIL PROCEDURE — JUDICIAL ESTOPPEL 7-7-0825 Federal Deposit Insurance Corp. v. National Union Fire Insurance Co., U.S. Dist. Ct. (17 pp.) Judicial estoppel does bar the FDIC from bringing two separate suits alleging that the same conduct by one defendant was, in the first suit, negligent, and in the second suit, fraudulent, even though such pleadings are inconsistent, because the FDIC did not act in bad faith and because a subsequent settlement agreement in the first suit dismissed the claim against the defendant. [Filed Dec. 13, 1996]. CIVIL RIGHTS — PRISONER MEDICAL TREATMENT 46-7-0826 Breedlove v. Saint Francis Hospital, et al., U.S. Dist. Ct. (19 pp.) For a prisoner to succeed in a civil rights claim based on inadequate medical treatment, he must show more than negligence; rather, he must show deliberate indifference to a serious medical need. [Filed Dec. 4, 1996]. A Daily Reporter of New Jersey Court Decisions

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