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Vol. 4, No. 222 — November 20, 1996 STATE COURT CASES CONTRACTS — COVENANTS NOT TO COMPETE 11-2-0584 AAF-McQuay, Inc., etc. v. Cross, et al., App. Div. (6 pp.) Judge did not consider the full range of the plaintiff/employer’s legitimate interest, and erred in declining to enforce two-year non-competition covenant against plaintiff’s former employee, and instead issuing an injunction for a three-month period only. DEBTOR/CREDITOR 15-2-0585 First Federal Svgs. & Loan Assn. of Rochester v. Torre, App. Div. (6 pp.) While trial judge correctly granted summary judgment on debtor’s liability on deficiency note, the court concludes that the debtor’s inartfully pleaded recoupment claim should have been heard, and barred entry of final judgment in the bank’s favor, and remands matter for further proceedings to adjudicate the amount of debtor’s liability. ENVIRONMENT — SANITATION CONTRACTORS 17-2-0586 I/M/O Grand Sanitation Svc. for Approval to Revise Tariff; Festa, etc. v. Livingstone, App. Div. (17 pp.) Sanitation contractor improperly attempted to bypass the jurisdiction of the appellate division by instituting his Law Division case alleging wrongful administrative action with respect to rate increase requests, and judge properly transferred the pending matter to the appellate court. Once transferred, and treated as an administrative appeal from the DEP’s decision, the case is dismissed as untimely except for one aspect of the order entered, which is affirmed. FAMILY LAW — FREEDOM OF RELIGION 20-4-0587 Aflalo v. Aflalo, Chancery Div. (20 pp.) In reviewing orthodox Jewish law and the way the courts have addressed conflicts between religious law and civil law in a matrimonial context, the court declines to aid the wife in ordering husband to cooperate with the obtaining of a Jewish “get,” finding that the entry of such an order would violate the husband’s First Amendment rights, and, in so doing, the court refuses to follow the course outlined in Minkin v. Minkin, 180 N.J. Super. 260 (Ch. Div. 1981). [Approved for publication Nov. 19, 1996.] HEALTH — MEDICAID PROVIDERS 22-1-0588 SSI Medical Svcs., Inc. v. State, etc., Supreme Ct. (18 pp.) Addressing the standard of proof required to demonstrate whether reimbursement claims submitted by a medical provider under the Medicaid program were timely filed and the sufficiency of the evidence under that standard, the court holds that, in the absence of any administrative rule or regulation to the contrary, the traditional preponderance of the evidence standard applies to administrative agency matters, and in order to raise a presumption of mailing and receipt and meet that standard, evidence of office custom requires other corroboration that the custom was followed in a particular instance. INSURANCE — PRODUCERS 23-2-0589 Sirchio v. Commr. of Ins., App. Div. (4 pp.) Final decision of the Commissioner denying plaintiff’s application for an insurance producer license is affirmed, since the plaintiff had unsatisfied judgments against him that were material to his fitness for licensure, and he lacked the necessary good reputation and character to be worthy of a license. LABOR AND EMPLOYMENT — TEMPORARY DISABILITY BENEFITS 25-2-0590 Kitt v. Scientific Design Co., Inc., App. Div. (4 pp.) Final order of Private Plan Hearing Office of the Dept. of Labor, which allowed petitioner four additional weeks of temporary disability benefits is reversed and remanded for specific findings of fact, since the hearing officer did nothing more than summarize the testimony and identify the issues raised therein, never explaining how he resolved the competing opinions, and appearing to let the Morbidity Tables dictate his result rather than resolving the conflicting factual issues and explaining his rationale. MUNICIPAL LAW — GARBAGE COLLECTION 30-1-0591 WHS Realty Co. v. The Town of Morristown, et al., Supreme Ct. (5 pp. — includes dissent) A plenary hearing is necessary to determine the constitutionality of municipality’s trash collection ordinance — which excludes apartment complexes with four or more rental units but does not exclude complexes where the majority of the units are owned in fee or as condominiums — since it must be determined whether the ordinance’s classification is rationally related to the legitimate state interest of promoting home ownership or to any other state interest that the municipality may assert. NEGLIGENCE — WORKPLACE INJURY 31-2-0592 Rubinstein v. Ramapo College of N.J., et al., App. Div. (6 pp.) The appellate panel affirms the decisions of the Law Division which dismissed tenured professor’s claims alleging that his present neuropsychiatric disability and other alleged injuries were caused by college and five of its administrators, except to note that the civil rights action is more appropriately precluded by res judicata than by the entire controversy doctrine. PHYSICIAN/PATIENT 29-2-0593 Weiss , etc. v. Goldfarb, et al., App. Div. (25 pp.) In case where plaintiff’s decedent died of known cardiac problems while undergoing dialysis, (1) plaintiff’s proofs against certain doctors and one nurse failed to make out a prima facie case against any of them, and summary judgments in their favor are affirmed, however the dismissals are reversed against another nurse and one other doctor — inter alia — because the trial court erred in not permitting plaintiff to call a rebuttal witness or to use his deposition on cross-examination, and a new trial is ordered against these two defendants. (2) The trial court erred in denying plaintiff’s request for an “ultimate outcome” charge revealing that the hospital, regardless of the verdict against it, was liable as a matter of law to only pay $10,000. [Approved for publication Nov. 20, 1996.] PHYSICIAN/PATIENT — DENTISTS 29-2-0594 Denny v. Procopio, App. Div. (9 pp.) No cause judgment in dental malpractice action is reversed because the judge abused his discretion in admitting plaintiff’s dental treatment records, which had been requested (and were available) during discovery but not produced by defendant until trial. TRANSPORTATION — OVERWEIGHT VEHICLES — SIGNS 49-3-0595 State v. Wallach, et al., Law Div. (9 pp.) The court analyzes the various interests that municipalities, counties and the state have in regulating roadways, and denies defendants’ motion to dismiss summonses against them for violations of N.J.S.A. 39:4-75 — driving overweight vehicles on intrastate bridges — rejecting the defendants’ claim that the posting of the maximum weight signs relating to the bridge involved herein was improper because state approval was not obtained therefor and finding that no such approval is required. [Approved for publication Nov. 19, 1996.] FEDERAL COURT CASES CIVIL PROCEDURE — REMAND 07-7-0596 Morales v. American Standard, Inc., et al., U.S. Dist. Ct. (8 pp.) Plaintiff’s unopposed motion to remand asbestos case is denied without prejudice until plaintiff can show compliance with 28 U.S.C. 1447_ regarding the timeliness of the motion, which plaintiff does not seem to have addressed in the misconception that the defects in removal went to the court’s subject matter jurisdiction, when, in fact, they were procedural. [Filed Nov. 7, 1996.] LABOR AND EMPLOYMENT 25-7-0597 Michaels v. State, et al., U.S. Dist. Ct. (37 pp.) In litigation arising out of the alleged unconstitutional prosecution and conviction of a nursery school teacher for acts of sexual abuse against the children for whom she was responsible, (1) as a result of the city of Newark’s status as a nominal party, and the lack of any objection to the defect in the removal petition by any other party, the court refuses to remand the matter to state court, and allows the non-signing defendants to cure the defect in the removal petition by filing a written document with the court; (2) the court finds that plaintiff’s section 1983 claim did not accrue until the date upon which the criminal charges against her were dismissed — the final determination of the criminal proceedings in her favor — and finds her complaint, therefore, to be timely; (3) State law claims (i.e. malicious prosecution, intentional infliction of emotional distress, negligent training and supervision, abuse of process and negligent and malicious prosecutorial conduct) are all subject to the two-year Tort Claims Act statute of limitations because the city is a public entity, and analyzing these claims, all must be dismissed as time-barred except the malicious prosecution claim; (4) The remaining malicious prosecution and section 1983 claims are nevertheless dismissed against the city of Newark because plaintiff fails to state a claim upon which relief can be granted. [Filed Nov. 8, 1996.][For publication.] Additional opinion approved for publication: 10-2-0334 In the Matter of the Commitments of J.B. and J.H. [Decided Oct. 23, 1996, Approved for publication Nov. 18, 1996.] Correction: In yesterday’s Alert, there was a typographical error in the case of Dai v. Community Medical Center, etc., et al., DDS No. 11-2-0574. The case was listed as having 18 pages when, in fact, it only has 8. We regret any confusion. —END— A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … In the first decision of its new term last week, the state Supreme Court reaffirmed prosecutors’ near unilateral discretion in deciding which defendants should be allowed into pre-trial intervention programs. See page 5 of the Nov. 18 Law Journal.

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