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Vol. 4, No. 226 — November 26, 1996 STATE COURT CASES INSURANCE 23-2-0635 Sanchez v. Roman, et al., App. Div. (6 pp.) In a case implicating the insurance disclaimer exception to the 90-day notice requirement of N.J.S.A. 39:6-65, the court finds that summary judgment was properly granted to the defense because plaintiff did not timely file her notice of intention to make a claim against the Unsatisfied Claim and Judgment Fund Board. LABOR AND EMPLOYMENT 25-1-0636 Hernandez v. Region Nine Housing Corp., et al., Supreme Ct. (20 pp.) An individual who has received an adverse administrative determination from the federal EEOC is not thereafter precluded from filing suit under the state L.A.D. in state court on a claim arising from the same facts. LAND USE 26-2-0637 Gouryeb v. Planning Bd. of Woodland Twp., et al., App. Div. (8 pp.) Court affirms order of Law Division which prevented municipal defendants from applying the amended zoning ordinance to plaintiffs’ pending subdivision application on the basis of the “special equities” exception to the time-of-decision rule. [For related case see DDS No. 26-2-0638 below.] 26-2-0638 Gouryeb v. Planning Bd. of Woodland Twp., et al., App. Div. (18 pp.) Law Division properly found that Planning Board’s denial of plaintiffs’ subdivision application was arbitrary, capricious and unreasonable in that the Board had erroneously interpreted a section of its ordinance dealing with water quality standards and coverage area requirements, and that such an interpretation was inconsistent with other parts of the ordinance, as well as with the interpretation set forth in the Pinelands Comprehensive Management Plan, with which the municipality had conformed its master plan, zoning ordinances and regulations. [For related case see DDS No. 26-2-0637 above.] PARENT/CHILD 28-2-0639 In the Matter of the Guardianship of N.R.M., a minor, App. Div. (10 pp.) (1) The evidence shows that DYFS reasonably explored alternatives of placing child with other family members and followed up on all leads in that regard, and termination of parental rights is affirmed. (2) The fact that child has some Native American blood does not mandate the application of the Indian Child Welfare Act, since, where the tribe is not federally recognized, and since the father never observed his heritage. 28-2-0640 In the Matter of the Guardianship of R.G.B., Jr., App. Div. (2 pp.) Since the record demonstrates clearly that termination of parental rights complied with the four criteria enunciated in N.J. D.Y.F.S. v. A.W., 103 N.J. 591 (1986), now particularized in N.J.S.A. 30:4C-15.1, the decision to terminate parental rights is affirmed, and the birth mother’s argument that DYFS violated the protections she alleges she is entitled to by the Americans with Disabilities Act — as a result of her drug abuse problem — is without merit. REAL ESTATE — NEW HOME WARRANTIES 34-2-0641 Spolitback v. CYR Corp., et al. v. Seery, etc., et al., App. Div. (8 pp.) The trial court was correct to dismiss homeowners’ complaint as to construction defects addressed in a prior New Home Warranty Program dispute settlement and arbitration, both on entire controversy and election of remedies grounds, and the dismissal was properly applied to claims involving warranty-covered defects which were also known, but not pursued, at the time of those proceedings, however the judge should not have dismissed plaintiffs’ claims for defects which were not known until later. [Approved for publication Nov. 26, 1996.] UTILITIES 37-2-0642 United Water Resources Inc., et al. v. North Jersey District Water Supply Commission, et al., App. Div. (19 pp.) The North Jersey District Water Supply Commission does not have the authority to operate, maintain and manage Bayonne’s municipal water system and issue revenue bonds for that purpose, and the decision of the trial judge, holding that such authority existed, is reversed. [Approved for publication Nov. 26, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-0643 State v. Oquendo, App. Div. (7 pp.) The trial judge erred in denying defendant’s motion for a new trial based on the assistant prosecutor’s oblique references to defendant’s failure to testify, and the prosecutor’s remarks to the jury concerning the absence of evidence refuting the State’s case so exceeded the bounds of fair comment that a new trial is mandated. FEDERAL COURT CASES CIVIL RIGHTS — LIMITATIONS 46-7-0644 Addison v. Paul, et al., U.S. Dist. Ct. (7 pp.) In a case alleging civil rights violations by defendants during plaintiff’s arrest, (1) the court finds that plaintiff’s complaint was timely under the applicable two-year statute of limitations, where procedural matters related to his in forma pauperis motion postponed the date on which he was able to finally file his complaint, and notwithstanding that the procedural problems were caused by the plaintiff’s own failure to include a required certification, however (2) those causes of action seeking civil relief based on violation of state criminal statutes are dismissed for failure to state a claim upon which relief may be granted. [Filed Oct. 31, 1996.] CONTRACTS — FOREIGN ARBITRATION 11-7-0645 Shaanxi Medicines and Health Products I/E Corp. v. CPB Intl., Inc., U.S. Dist. Ct. (17 pp.) In a commercial breach of contract dispute between pharmaceutical companies, the court grants the plaintiff’s motion to confirm the arbitration award in its favor under the terms of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and to strike “defenses” and “counterclaims” which defendant has submitted in opposition to the confirmation of the award, since the defendant has failed to prove any of the defenses to enforcement of the arbitration award under the Convention. [Filed Nov. 1, 1996.] CORRECTIONS — CIVIL RIGHTS 13-7-0646 Brown v. Fauver, etc., U.S. Dist. Ct. (11 pp.) Magistrate judge correctly retroactively applied Sandin v. Conner, 115 S.Ct. 2293 (1995) and granted summary judgment to defendant on inmate’s claim that his civil rights were violated when the prison banned visits from inmate’s wife, the court properly holding that inmate did not have a protected liberty interest in such visitation and could not succeed, therefore, on his due process claim. [Filed Oct. 31, 1996.] CORRECTIONS — MEDICAL TREATMENT 13-7-0647 Fletchersland v. Passaic Cy. Jail Medical Dept., et al., U.S. Dist. Ct. (7 pp.) Inmate’s complaint sufficiently sets forth allegations that prison acted with deliberate indifference to his medical need — in delaying medical treatment to him for injured shoulder for over one month — and, since such delay, in the face of alleged actual knowledge of injury, states a cognizable eighth amendment violation, defendant’s motion to dismiss is denied. [Filed Nov. 3, 1996.] NEGLIGENCE — FEDERAL GOVERNMENT — F.T.C.A. 31-7-0648 Lenzo v. U.S.A., U.S. Dist. Ct. (5 pp.) The court grants the government’s motion to dismiss the husband’s per quod claim in wife’s case — for injuries sustained when she was hit by a postal vehicle — since the husband failed to comply with the jurisdictional requirement of filing an administrative claim with the U.S. Postal Service, and the fact that the tort claim notice filed by the wife identified her as married did not suffice to put the Service on notice of the per quod claim under the F.T.C.A. [Filed Nov. 12, 1996.] Additional opinion approved for publication: 23-2-0318 Ohio Casualty, etc. v. Meadowlands Toyota [Decided Oct. 22, 1996, Approved for publication Nov. 19, 1996.] Daily Decision Alert 11-27-96 A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The state Supreme Court is asked to overturn a ruling holding that an agreement by federal prosecutors not to pursue charges against a defendant did not prevent state prosecutors from doing so.See page 5 of the Nov. 25 Law Journal.

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