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Vol. 4, No. 236 — December 12, 1996 STATE COURT CASES BANKING 06-2-0751 F.D.I.C. v. Singer, App. Div. (8 pp.) The trial court acted precipitously in taking the matter out of the jury’s hands and concluding that the bank had violated the Equal Credit Opportunity Act in requiring wife of debtor to sign note; directed verdict for defendant is reversed. FAMILY LAW 20-2-0752 Hassan v. Hassan, App. Div. (3 pp.) Trial judge did not err in ordering that defendant transfer his interest in the marital premises to the plaintiff; however the matter must be remanded for reevaluation of the adequacy of the sales price used by the court. INSURANCE — INSURER LIQUIDATION — CLAIMS 23-1-0753 IMO Liquidation of Integrity Ins. Co., Supreme Ct. (42 pp. — includes concurring and dissenting opinions) Trial judge incorrectly denied creditor’s proof of claim against insolvent insurer to the extent that claims were made for installment payments that were due after the date of liquidation, and Appellate Division was correct in reversing this decision, holding that the claim was valid because, under the terms of surety bonds issued by the insurer to the creditor, the insurer’s obligation to pay the outstanding bond amount arose when it issued the bond. Creditor is entitled to file a claim for an amount equal to the face value of each of the surety bonds issued by the insurer to the creditor, less the sum of payments already made and assets recoverable by the insurer/debtor. LAND USE 26-2-0754 Zimmerman v. Borough of Pt. Pleasant Beach, et al., App. Div. (6 pp.) Since the conversion of plaintiff’s real estate office to a summer residential rental constituted a complete change of character of the existing use, as well as an expansion of the existing two rental units, the board correctly rejected plaintiff’s “insubstantial change” argument and determined that a special reasons variance was required; since plaintiff’s evidence failed to meet the special reasons criteria, denial of plaintiff’s application for a special reasons variance is affirmed. LABOR AND EMPLOYMENT 25-2-0755 Jackson v. Georgia-Pacific Corp., et al., App. Div. (26 pp.) In a wrongful termination case, (1) examining the employer’s manual under Woolley, the court finds that the disclaimer was prominently located and clear in language, therefore no contract for employment existed; (2) the court did not err in refusing to give a mixed-motive Price Waterhouse charge to shift the burden of proof of an affirmative defense to the defendant as plaintiff did not prove that his situation would support an inference of disparate treatment; and (3) since there is nothing in the record to suggest that plaintiff’s lawsuit was a material factor in his being rehired in a different position, he is not a prevailing party entitled to counsel fees under the LAD. [Approved for publication Dec. 12, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0756 Jacobsen v. Bd. of Review, et al., App. Div. (6 pp.) Although the Appeal Tribunal found that appellant fell behind in her work because of her socializing on the job, there was no evidence that this activity was so extensive that appellant could be said to have willfully disregarded her employer’s best interest, and since the record indicates that the real reason for her termination was her failure to complete her work in a timely manner, appellant was improperly determined to have been discharged for “misconduct” and denial of unemployment benefits is reversed. NEGLIGENCE 31-2-0757 Van Brill Pool & Spa Center, Inc. v. Schooley Electric, Inc., App. Div. (7 pp.) In a case where plaintiff sued defendant for negligently restoring an electrical system which allegedly caused a fire and substantial damage to plaintiff’s property, inter alia, the trial judge properly denied plaintiff’s motion for a directed verdict based on the evidence, and properly charged the jury; jury verdict in favor of defendant is affirmed. NEGLIGENCE — POLICE — COMPARATIVE NEGLIGENCE 31-1-0758 Del Tufo v. Twp. of Old Bridge, et al., Supreme Ct. (51 pp. — includes concurring and dissenting opinion) Arrestee’s pre- and post-custodial behavior — in ingesting a lethal dose of cocaine and in failing to advise the police that he had done so, all the while refusing medical attention — makes his case not immune from comparative fault analysis and the jury should have been instructed to compare his culpability with the defendant police officer’s negligent failure to summon medical assistance more promptly. NEGLIGENCE — POLICE PURSUIT 31-2-0759 Wisniewski v. Mercer, et al., App. Div. (3 pp.) Where plaintiff was injured by a police vehicle, summary judgment in favor of police officer was proper under Title 59 immunities, since there was no willful misconduct, and, even though the suspect was not in view, the officer’s response constituted “pursuit” because he was proceeding to the probable zone of the suspect’s escape. TAXATION — IN REM TAX FORECLOSURE 35-2-0760 The Borough of Penns Grove v. Block 43, Lot 1, etc., et al., App. Div. (5 pp.) Trial judge correctly found that the FDIC’s interest in property did not preclude in rem strict foreclosure from proceeding without a judicial sale. WORKERS’ COMPENSATION 39-2-0761 Sines v. E.I. DuPont de Nemours & Co., et al., App. Div. (22 pp.) Judge correctly found, on the evidence presented, that Chemical Workers Association was not a joint employer with DuPont and jointly responsible for the awards entered on behalf of petitioner. CRIMINAL LAW AND PROCEDURE 14-2-0762 State v. Camacho, App. Div. (12 pp.) Trial judge erroneously held that it was his function, as opposed to the jury’s, to decide after a Grave’s Act hearing whether defendant’s intention in possessing a firearm was to use it against the person, as opposed to the property, of another, and such error requires reversal of the conviction. 14-2-0763 State v. Delemo, App. Div. (5 pp.) Arresting officer had no probable cause to search defendant’s car based only on defendant’s “strange” looks and movements, and motion to suppress should have been granted. FEDERAL COURT CASES CIVIL PROCEDURE 07-7-0764 Walden v. Hines, et al., U.S. Dist. Ct. (5 pp.) The court denies plaintiff’s request, inter alia, to take deposition by written questions of four proposed deponents — whose testimony cannot be subpoenaed because they are outside the 100-mile radius set forth in F.R.C.P. 45(b)(2) — which they would then be ordered by the Court to answer and return to her, since this procedure would deprive the defendant of her right to cross-examine witnesses, including her right to observe their demeanor and credibility; moreover, the questions would offer little, if any, testimony relevant to plaintiff’s case against the remaining active defendant. [Filed Nov. 26, 1996.] CIVIL RIGHTS — JURISDICTION 46-7-0765 Hines, et al. v. Cy. of Hudson, U.S. Dist. Ct. (5 pp.) Court dismisses plaintiffs’ section 1983 complaint — alleging increased risk of injury as a result of their exposure to asbestos while they were placed in holding cells in defendant’s jail — because the plaintiffs have failed to allege facts to establish that they have been injured “in fact” for purposes of the “case or controversy” requirement of Article III of the U.S. Constitution and the court is therefore without jurisdiction. [Filed Nov. 26, 1996.] CORRECTIONS — CIVIL RIGHTS 13-7-0766 Berte v. Rafferty, U.S. Dist. Ct. (4 pp.) The court denies defendant’s motion to dismiss inmate’s section 1983 claim — alleging that two guards did nothing to help the inmate as he was assaulted by two other prisoners — since defendant wrongly asserts that inmate is barred from recovering because he failed to comply with the notice provisions of the Tort Claims Act; such provisions do not apply to bar claims based upon section 1983. [Filed Nov. 26, 1996.] INTELLECTUAL PROPERTY — TRADE NAMES 53-7-0767 Securacomm Consulting, Inc. v. Securacom Incorporated, et al., U.S. Dist. Ct. (10 pp.) In a case alleging that defendants developed a plot to unlawfully and fraudulently manipulate and destroy plaintiff’s trade name and goodwill, (1) count for tortious interference with prospective economic benefit is dismissed since the complaint, while setting forth a lost contract, fails to set forth any allegation that the defendants knew of this contract, and merely states legal conclusions that the defendants interfered with the contract without stating how; (2) count alleging RICO violations is dismissed since the complaint fails to set forth the minimum requirements for pleading a civil RICO action under either section 1962_ and (d); (3) count alleging that defendants have committed a prima facie tort is dismissed because it does not link the plaintiffs’ loss of contract to any specific conduct by the defendants; and (4) count for conspiracy is dismissed since it alleges that defendants plotted and conspired, but does not set forth exactly what they agreed to do. [Filed Nov. 26, 1996.] LABOR AND EMPLOYMENT 25-7-0768 Wilson v. United Auto Workers Local 980, U.S. Dist. Ct. (9 pp.) The court grants the defendant union’s motion for summary judgment on plaintiff worker’s complaint alleging that union breached its duty of fair representation in failing to pursue worker’s grievance against former employer, since worker failed to exhaust internal union remedies before filing suit, and although worker asserts hostility from local officials, he does not assert that the pursuit of the internal remedies would cause unreasonable delay or would be unable to award him adequate relief. [Filed Nov. 26, 1996.] Correction: In yesterday’s Alert, the word “supra” should be omitted from the squib of DDS No. 29-2-0742. —END— Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A federal judge rejects the prosecution’s bid to bng Theodore Kaczynski, the alleged Unaomber, to trial in New Jersey in June for sending a bomb that killed Thomas Mosser, an advertising executive.

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