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Vol. 4, No. 217 — November 13, 1996 STATE COURT CASES CIVIL PROCEDURE 07-2-0514 Rodriguez, etc., et al. v. Garlow, et al., App. Div. (4 pp.) The court affirms final order denying motion to reinstate dog-bite complaint (administratively dismissed for inactivity in a six-month period) since the plaintiffs did not move to reinstate until more than one year after the date of dismissal, and did not show exceptional circumstances permitting relief under R. 4:50-1(f). CONDEMNATION — CASINOS 44-2-0515 Casino Reinvestment Development Authority, etc. v. Coking, et al. v. Trump Plaza Assoc., etc., App. Div. (15 pp.) The trial judge erred in ruling that CRDA funding of guest room construction in a hotel development project that includes new casino space necessarily amounts to impermissible CRDA funding of the new casino space, since CRDA determined that the costs of construction of hotel rooms and non-casino appurtenances may be segregated from other non-qualifying costs, thus permitting CRDA to exercise its statutory power of eminent domain as to defendants’ properties. DEBTOR/CREDITOR 15-2-0516 O’Brien v. Rickvalsky, App. Div. (4 pp.) The trial court erred in finding that plaintiff had no legal right to repayment of loan from defendant since the terms of loan lacked clarity and therefore were too “vague” to permit enforcement; because the court found that the word “loan” was clearly placed on both negotiated checks, the court should have enforced the loan as payable on demand. INSURANCE — P.I.P. — ARBITRATION 23-2-0517 Interstate Fire & Casualty Ins. Co. v. Allstate Ins. Co., App. Div. (7 pp.) Allstate was improperly enjoined from arbitrating against tavern’s insurer for recoupment of PIP payments Allstate had paid to its insured (who was injured by intoxicated tortfeasor served by tavern), since (1) timely filing of arbitration request with private arbitration service tolls the running of the applicable statute of limitations even though the complaint may not be served until some time thereafter; (2) private discussion between two insurers in an attempt to settle the PIP claim is not a pre-condition to the filing of the arbitration claim under N.J.S.A. 39:6A-9.1, AND (3) the statutory application makes no distinction between automobile and non-motor vehicle tortfeasors, and applies to entities such as the tavern. PHYSICIAN/PATIENT — NURSES — MEDICAL JUDGMENT RULE — COLLATERAL SOURCE RULE 29-2-0518 Adams, et al. v. Cooper Hospital, et al., App. Div. (11 pp.) (1) The trial judge did not err in refusing to instruct the jury on the medical judgment rule where the testimony of the experts focused on the proper standard governing nurse’s care of patient, not on the exercise of judgment between two accepted schools of medical opinion. (2) The trial judge properly applied the collateral source rule embodied in N.J.S.A. 2A:15-97 because N.J.S.A. 39:6A-12 curtails medical expense evidence only when it relates to automobile personal injury claims, and the proscription does not apply to medical expenses that eventuated from the medical malpractice that occurred after the hospitalization for the automobile personal injuries, even though a PIP insurer reimbursed plaintiff for those expenses. [Approved for publication Nov. 13, 1996.] PUBLIC EMPLOYEES — INDEPENDENT CONTRACTORS 33-2-0519 Stevens v. Bd. of Trustees of the P.E.R.S.; Twp. of Bridgewater, Intervenor, App. Div. (14 pp.) The court reverses the decision of Board of Trustees — rejecting the decision of the ALJ that petitioner (former municipal tax assessor) was an independent contractor, and concluding that petitioner was not entitled to retirement pension benefits paid to him while he worked as a consultant to his successor — because the Board failed to make specific findings of fact and conclusions of law, without which it is impossible to determine whether the Board’s statutory interpretation is reasonable. [Approved for publication Nov. 13, 1996.] REAL ESTATE 34-2-0520 Cramer v. Carriage Village, Inc., et al., App. Div. (29 pp.) (1) Trial court correctly granted defendant CVI’s motion forjudgment n.o.v. after a jury verdict favorable to plaintiff, determining that defendant CVI had properly terminated land contract because there had been defects in plaintiff’s title. (2) Trial court further correctly granted attorney-defendants’ motion for judgment n.o.v., reasoning that the plaintiff could not have sold his property because of the title defects, and, consequently, he could not have suffered damages due to any purported malpractice by the attorney-defendants involving the non-existent sale. (3) False representation claims were properly dismissed against one of CVI’s partners and shareholders, for failure of plaintiff to prove these claims. CRIMINAL LAW AND PROCEDURE — P.T.I. 14-1-0521 State v. Wallace, Supreme Ct. (20 pp.) (1) In examining the issue of the quantum of deference to be afforded the discretionary prosecutorial decision concerning the refusal to dismiss criminal charges and the refusal to admit a criminal defendant into a pre-trial intervention program, the court determines that here, the assistant prosecutor’s evaluation and denial of defendant’s application for admission to the PTI program did not amount to a clear error of judgment, and the Appellate Division failed to view the prosecutor’s decision through the filter of the “enhanced” or highly differential standard of review. (2) A subsequently negotiated non-custodial sentence does not retrospectively impugn the soundness of a previous prosecutorial decision that criminal prosecution, rather than pretrial diversion, is appropriate. To permit such a line of attack would unfairly undermine an otherwise well-founded decision to deny PTI, would seriously inhibit the prosecutor’s discretion, and would discourage efforts by the State to enter into a negotiated plea agreement that attempts to accommodate a defendant’s condition, and, to the extent that State v. Fitzsimmons, 291 N.J. Super. 375 (App. Div.), cert. denied __N.J.__(1996) endorses a different standard, it is disapproved. FEDERAL COURT CASES LABOR AND EMPLOYMENT 25-7-0522 Doyle, et al. v. Exxon Corp., etc., et al., U.S. Dist. Ct. (18 pp.) In an action by plaintiff for damages incurred as a result of alleged age discrimination and various tortious acts committed by the defendants, inter alia, (1) under the L.A.D., those defendants who had supervisory control over plaintiff during his employment could be liable for affirmative discriminatory acts which were conducted within the scope of employment, but the court dismisses the count as to those defendants who did not have such supervisory control, (2) the L.A.D. does not prevent plaintiff from pursuing an independent action to vindicate particular interests in addition to or aside from those sought to be protected by his L.A.D. action, therefore defendants’ motion to dismiss common law counts on the preemption theory is denied, and (3) the court examines and disposes of each individual attack, including claims for misrepresentation, tortious interference with prospective contractual and economic gain, defamation, intentional infliction of emotional distress and breach of the covenant of good faith and fair dealing. [Filed Oct. 29, 1996.] LABOR AND EMPLOYMENT — L.A.D. — ATTORNEYS’ FEES 25-7-0523 Failla v. City of Passaic, et al., U.S. Dist. Ct. (21 pp.) In a case where plaintiff prevailed in his discrimination suit, the court considers the application of plaintiff’s counsel for attorneys’ fees pursuant to the fee-shifting provision of the N.J.L.A.D. and utilizing the lodestar analysis and the contingency enhancement standards, awards fees in this case. [Filed Oct. 28, 1996.] NEGLIGENCE — CRUISE SHIPS 31-7-0524 Gerecke, et al. v. Regal Cruises, etc., U.S. Dist. Ct. (12 pp.) Having carefully reviewed the language of the passenger contract, and having surrendered her embarkation ticket upon boarding, the plaintiff could well have concluded that she would be deemed to have accepted and agreed to be bound by the terms of the passenger contract only by signing the cover page where indicated, and, accordingly, since the contract was not signed, plaintiff was not bound by the limitations language set forth therein, and the court denies defendant’s motion for summary judgment alleging that slip and fall case was time-barred. [Filed Oct. 31, 1996.] PARENT/CHILD — CIVIL RIGHTS 28-7-0525 Gencarelli v. State, et al., U.S. Dist. Ct. (7 pp.) In an action where the plaintiff alleges that the defendants violated his civil rights by depriving him of the enjoyment and society of his children through underlying state court visitation proceedings, the State is protected from the suit by sovereign immunity, which also extends to the defendant Superior Court as an “arm” of the State, and, since the complaint, even under the most liberal construction, does not allege any misconduct by the county, and the proper recourse for a plaintiff who disagrees with the decision of a trial court is an appeal, the complaint is dismissed as to all defendants. [Filed Oct. 28, 1996.] TORTS — CONVERSION — REMAND 36-7-0526 Eisenman, etc. v. Continental Airlines, Inc., U.S. Dist. Ct. (8 pp.) Entertaining defendant’s application to reargue plaintiff’s motion for remand, the court finds that the motion for remand should still be granted since, (1) the complete preemption doctrine does not apply to claims under 26 U.S.C. Sec. 7422 and (2) there is no essential element of federal law within plaintiff’s conversion claim, therefore there is no federal jurisdiction and the case is remanded to the Superior Court of N.J. [Filed Oct. 29, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … In a decision being scrutinized across the state, a trial judge rules that towns should weigh market considerations in planning for low- and moderate- cost housing.See page 5 of the Nov. 11 Law Journal.

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