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Vol. 4, No. 219 — November 15, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-1-0541 In the Matter of F. William LaVigne, etc., Supreme Ct. (34 pp.) In a case where attorney engaged in multiple and conflicting representations in the course of related real estate transactions, three month suspension is warranted, not disbarment as recommended by the Disciplinary Review Board. ATTORNEY/CLIENT — FEE ARBITRATION — ENTIRE CONTROVERSY 04-2-0542 Panitch & Nider, P.C., etc. v. Thornhurst Corp., et al., App. Div. (4 pp.) Entire controversy doctrine does not bar litigation for failure to join parties in a fee arbitration proceeding, even though that proceeding was conducted under the ambit of the judiciary pursuant to court rules, and the court need not reach the question of whether the rules require an attorney to give a guarantor notice of the right to participate in a fee arbitration, since here, the guarantor had actual notice of the hearing. CIVIL PROCEDURE — COMPELLING ATTORNEYS’ DEPOSITIONS 07-2-0543 Kerr v. Haley v. Able Sanitary, etc., et al., App. Div. (18 pp.) In a case arising out of faulty remediation of environmental conditions on residential real estate, the court finds that compelling plaintiffs’ attorney’s deposition was erroneous since defendants failed to demonstrate the likelihood that the attorney had first-hand knowledge or direct involvement in the events giving rise to the action, or any other facts that might have established that the deposition was essential to prevent injustice, and, accordingly, defendants have failed to make a sufficient showing of propriety and need for the attorney’s deposition in order to overcome the presumptive “good cause” for a protective order under R. 4:10-3. [Approved for publication Nov. 15, 1996.] CONTRACTS — VACATING DEFAULT 11-2-0544 Olsten Kimberly Quality Care v. Del Bene, et al., App. Div. (6 pp.) Exceptional circumstances exist to reopen default judgment against defendant who, it appeared, did not sign home care contract individually, with the intent to be bound personally, but signed on behalf of her blind mother, and who, further, was not served properly. EDUCATION 16-2-0545 Metaxas, et al. v. Hoboken Bd. of Education, et al., App. Div. (15 pp.) In a case dealing with elementary school teachers who had lost their teaching positions due to reductions in force, where the teachers challenged local board’s appointments to library jobs, the State Board of Education properly found that elementary certification was required for library positions and established the parties’ orders of seniority, recommending that one appellant be permitted to keep her library position and the local Board be allowed to choose either of two other appellants for the second library position. FAMILY LAW 20-2-0546 Seidle-Woodson v. Woodson, App. Div. (4 pp.) Since defendant received a $1.6 million verdict in federal court only two weeks after divorce trial had ended, and before the divorce judgment had been entered, plaintiff’s motion to reopen the judgment was really a motion to reopen her case to receive additional evidence which was omitted because of inadvertence or mistake, and the motion was correctly granted. INSURANCE — OCCUPANT HAZARD EXCLUSION 23-2-0547 Canal Ins. Co. v. F.W. Clukey Trucking Co., et al., App. Div. (20 pp.) Examining the reported decisions considering the validity of “Occupant Hazard Excluded” endorsements and the choice of law questions applicable to this case, the court reverses trial court’s holding that the endorsement was null and void as a matter of law as against public policy, and remands that matter for further proceedings, including a redetermination of which defendants, if any, are successful claimants within the meaning of R. 4:42-9(a)(6). [Approved for publication Nov. 15, 1996.] INSURANCE — P.I.P. 23-2-0548 N.J. Mfrs. Ins. Co. v. Belin, etc., et al., App. Div. (4 pp.) Since a fact question existed as to whether injured infant plaintiff was a resident of his grandmother’s household, such that he would be afforded PIP benefits under her policy, summary judgment declaring that he was not entitled to those benefits was improper. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0549 Kelly v. Bd. of Review, App. Div. (4 pp.) Since it was appellant’s own decision to sell his tavern business that led to his unemployment, he left his work voluntarily, and was properly disqualified for unemployment benefits in the interim between the sale and the time when he qualified for retirement social security benefits. 25-2-0550 Zarillo v. Bd. of Review, et al., App. Div. (3 pp.) Claimant’s deciding to pursue another remedy — disability benefits — when he was denied unemployment benefits, does not constitute good cause for filing unemployment appeal six months late. 25-2-0551 Ruskin v. Bd. of Review, App. Div. (4 pp.) When class maternity litigation regarding 1973 employment was settled with appellant’s prior employer, resulting in her receipt of back pay in the year 1993, this income was improperly considered as 1993 earnings for that year in calculating her base rate for unemployment benefits, and Board of Review correctly ordered that appellant refund the overpayment. LANDLORD/TENANT 27-2-0552 Torres v. Rodriguez, et al., App. Div. (7 pp.) Judge erred in ruling that period of limitatons had expired for tenant’s claim for excess rent charges under the municipal code since the municipal ordinance mandates that the limitations period shall be waived if the landlord failed to serve the required rental statement at the inception of the tenancy, which the board found the landlord had failed to do, but the judge failed to address; the judge correctly granted summary judgment, however, to rent collection agency on fraud and unconscionable commercial practices claim under the Consumer Fraud Act. NEGLIGENCE 31-2-0553 Doyle v. Nixon, et al., App. Div. (10 pp.) In a personal injury case involving dram shop liability, verdict for defense is affirmed, and court finds no error in plaintiffs’ claims of improper jury instructions, improper comments by defense counsel, having suffered prejudice by the failure of the court to record all sidebar conferences, and prejudicial inferences as to plaintiff’s intoxication. NEGLIGENCE — POLICE — TORT CLAIMS ACT 31-2-0554 Bianchini, et al. v. Twp. of Middleotwn, et al., App. Div. (10 pp.) In personal injury action arising out of an accident in which police officer, while operating a municipal police vehicle, struck and injured plaintiffs while they were engaged in picketing for their union, since a reasonable factfinder is bound to conclude that the officer acted objectively reasonably under the circumstances when he saw a man with a bat threatening others, there can be no finding of willful, wanton or reckless conduct and summary judgment was properly granted to defense. PHYSICIAN/PATIENT — P.D.R. 29-2-0555 Morlino v. Medical Center of Ocean Cy., et al., App. Div. (22 pp.) Where plainitffs’ fetus died one day after defendant doctor administered antibiotic to mother, unanimous verdict for the defense is affirmed, since judge did not err (1) in refusing to instruct the jury that it could consider a violation by the doctor of warnings in the Physicians’ Desk Reference as evidence of the doctor’s negligence, (2) in giving the exercise of judgment instruction to the jury, or (3) in refusing to instruct the jury that the testimony of a single witness may be sufficient to convince the jury of an essential element of plaintiff’s claim. [Approved for publication Nov. 15, 1996.] REAL ESTATE 34-2-0556 Clinton Development Co., L.L.C. v. Boiling Springs Svgs. Bank, App. Div. (5 pp.) In aborted real estate transaction, the court perceives no factual issues requiring a plenary hearing and concludes that the three and one-half month timeframe established by the Chancery judge for closing of title was reasonable as a matter of law, since it comported with the original contractual timeframe. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A new specie of law suit seeks to hold therapists liable for instilling in their patients “false memories” of sexual assaults committed on them as children. See page one of the Nov. 18 Law Journal.

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