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Vol. 4, No. 215 — November 8, 1996 STATE COURT CASES CIVIL PROCEDURE — DISMISSALS 07-2-0483 Roberts v. Airborne Express, Inc., et al., App. Div. (6 pp.) Judge erred in entering — without rendering an opinion or setting forth his rationale — an order directing plaintiff to pay over $8,000 in sanctions to defense within ten days or suffer dismissal with prejudice, over plaintiff s objections as to the reasonableness of the amount. CONSUMER FRAUD — USED TRUCKS 09-2-0484 Azores Transport, Inc. v. Arrow Truck Sales, Inc., App. Div. (4 pp.) The court properly dismissed plaintiff s case alleging fraud, negligent misrepresentation and violation of the Consumer Fraud Act — claiming he bought a used truck after being told that the odometer reading of 83,938 was accurate, when the truck actually had approximately 500,000 miles on it — since the contract, the sales agreement and the certificate of ownership all contained language clearly setting forth that the odometer is not to be relied upon. DEBTOR/CREDITOR 15-2-0485 N.Y. City Off-Track Betting Federal Credit Union v. Ortiz, App. Div. (2 pp.) Judge found that evidence of balances due plaintiff on two loans made to it by defendant was in equipoise with defense evidence that benefits due him upon termination were applied to such balances resulting in a zero balance, and since the credit union had not carried its burden of proof, judgment of no cause is affirmed. FAMILY LAW — BANKRUPTCY 20-2-0486 Owens v. Owens, App. Div. (7 pp.) The court affirms post-judgment matrimonial order determining that certain payments due wife were not for alimony, maintenance or support — and therefore did not qualify as non-dischargeable in husband s bankruptcy — but were part of an equitable distribution of assets. FAMILY LAW — DOMESTIC VIOLENCE 20-2-0487 T.P.B. v. M.L.B., App. Div. (7 pp.) Defendant s acts — throwing a baby blanket at plaintiff, pointing a finger near plaintiff s face, and accidentally hitting plaintiff in the knee upon opening the door to his apartment — separately or together do not establish the petty disorderly persons offense of harassment under N.J.S.A. 2C:33-4(b) which is a predicate for the finding of domestic violence, and the final restraining order is vacated. LANDLORD/TENANT 27-2-0488 Edgewood Realty Associates v. Abdrabbo, etc., App. Div. (3 pp.) While successor landlord undoubtedly drove a hard bargain, the court cannot say that it did not negotiate in good faith for renewal of lease, and since no agreement was reached with tenant, judgment for possession of pizzeria is affirmed. LANDLORD/TENANT — RENT CONTROL 27-2-0489 Collins v. Albro, App. Div. (3 pp.) The plain language of rent leveling ordinance was clear, and a complaint must be filed within two years of the effective date of a disputed increase, and since the judge correctly noted that nothing in the ordinance grants a fresh two-year objection period to each new tenant, decision ruling that rent increase was valid is affirmed. [Decided Nov. 8, 1996, Approved for publication Jan. 8, 1997] NEGLIGENCE — SEAT BELT DEFENSE 31-2-0490 McCallum v. Verost, et al., App. Div. (5 pp.) Even after the enactment of the mandatory seat belt law, the plaintiff/passenger s failure to use a seat belt is not negligence per se, and the circumstances provided ample grounds for the jury s verdict finding that plaintiff was not contributorily negligent in this case. NEGLIGENCE — SNOW REMOVAL IMMUNITY — TORT CLAIMS ACT 31-2-0491 Davenport v. Borough of Closter, App. Div. (9 pp.) In a case where plaintiff fell on accumulated snow and ice when walking across Borough property, the court reviews the law of snow removal immunity and affirms the lower court s decision granting summary judgment to Borough on that basis. [Approved for publication Nov. 8, 1996.] TORTS — ABUSE OF PROCESS 36-2-0492 DeBlasi, M.D. v. State, et al., App. Div. (12 pp.) Although psychiatrist was acquitted of Medicaid fraud, he failed to sustain burden of proving a prima facie case of abuse of process, and judge did not procedurally err in granting defense motion for involuntary dismissal after several defense witnesses had testified, since the witnesses did not in any sense overcome the deficiencies in the plaintiff’s case. UTILITIES 37-2-0493 In the Matter of Alleged Violations of Law by Valley Road Sewerage Co., et al., App. Div. (14 pp.) The Board of Public Utilities had the power to revoke sewerage company’s franchise, to compel the principals to divest themselves of any interest in the company, and to debar them from owning or managing any N.J. public utility. The Chancery Division also had the authority to appoint an equitable receiver to sell the utility and to operate the company pending the sale. [Approved for publication Nov. 8, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-0494 State v. Strippoli, App. Div. (13 pp.) Municipal court dismissal of disorderly and petty disorderly persons charges against defendant do not impede the prosecution of this prosecution for conspiracy, terroristic threats and criminal coercion under any applicable preclusionary doctrine, including double jeopardy, right to a speedy trial, failure of mandatory joinder and principles of fundamental fairness. FEDERAL COURT CASES BANKRUPTCY 42-7-0495 2175 Lemoine Ave. Corp., Debtor; 2175 Lemoine Ave. Corp. v. Wattiker, et al., U.S. Dist. Ct. (9 pp.) The Bankruptcy Court properly approved terms of bankruptcy settlement — including the sale of property on a credit bid in exchange for a release of all claims against the estate — since the conveyance was properly made as a sale to a purchaser in good faith, and therefore the court is without power to invalidate the sale under Section 363(m) of the Code and the appeal is dismissed as moot. Further, the debtor, having converted bankruptcy proceedings to Chapter 7, has lost its standing to appeal the action of the bankruptcy court because it is no longer a “person aggrieved” as the debtor will not be “directly and adversely affected pecuniarily.” [Filed Oct. 25, 1996.] CONTRACTS — VENUE 11-7-0496 ADP, Inc., et al. v. Sun Co., U.S. Dist. Ct. (8 pp.) In a breach of contract suit arising out of defendant’s failure to pay for plaintiff’s consulting and payroll outsourcing services, the court denies defendant’s motion to transfer venue to Pennsylvania since, although many of the operative facts in the lawsuit occurred outside NJ, giving lessened deference to NJ plaintiff’s choice of forum, plaintiff’s selection is still entitled to a certain degree of deference, and since there is no significant inconvenience in keeping the case in NJ, and the simple fact that Pennsylvania law governs is not sufficient to overcome the deference due, case should remain here. [Filed Oct. 23, 1996.] INSURANCE — LIBEL 23-7-0497 Great American Ins. Co., etc., et al. v. Chernin Ins. Agency, Inc., et al., U.S. Dist. Ct. (12 pp.) In an action brought by insurance companies against agent for fraudulent and/or negligent misrepresentations in submissions, wherein agent counterclaims for libel, insurance companies are granted summary judgment dismissing those counts on the basis of the qualified privilege. [Filed Oct. 24, 1996.] LABOR AND EMPLOYMENT — POLITICAL DISCRIMINATION 25-7-0498 Raniero v. Antun, et al., U.S. Dist. Ct. (36 pp.) Employee who was not offered jobs for which he applied, and who alleges that he was unconstitutionally discriminated against because he failed to take part in county politics, must show more than that he engaged in a protected activity — here, free speech — he must also show that his noninvolvement with the politics was a “substantial” or “motivating” factor in the employer’s decision not to promote him, and, since he has failed to do so, and the employer has proffered non-discriminatory reasons for the failure to promote, defendants are granted summary judgment. [Filed Aug. 13, 1996.][Approved for publication Oct. 24, 1996.] TAXATION 35-7-0499 Finkelstein v. U.S., U.S. Dist. Ct. (22 pp.) In case where wife originally thought she would be liable for taxes due from her husband, and deposited a cash bond with the IRS to stop the running of interest, then later tried to get the funds back when she found out that she was not liable for the taxes, but was told that the monies would be applied to the husband’s delinquencies, the wife’s claim is time barred notwithstanding the fact that the IRS Notice of Disallowance of her claim was not sent by certified or registered mail in conformance with the requirements, since the wife had actual notice of the disallowance, effecting delivery and starting the running of the statute of limitations. [Filed Sept. 9, 1996.][Approved for publication Oct. 24, 1996.] Additional opinions approved for publication: Exton, etc. v. Our Farm, Inc., 24-7-0043 [Filed Sept. 10, 1996 and Approved for publication Oct. 23, 1996.]; Gateway 2000, Inc. v. Cyrix Corp., 53- 7-0031 [Filed Sept. 10, 1996 and Approved for publication Oct. 24, 1996.]; Kearny Barge Co., Inc. v. Global Ins. Co., et al., 54-7- 0074 [Filed Sept. 10, 1996 and Approved for publication Oct. 24, 1996.]; DeJoy v. Comcast Cable Communications, Inc., et al., 25-7- 0299 [Filed Oct. 8, 1996 and Approved for publication Oct. 24, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Vincent Landano, who served 13 years for killing a police officer before a judge found that prosecutors concealed evidence, alleges that another defendant in the case has admitted the slaying. See page 1 of the Nov. 11 Law Journal.

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