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Vol. 4, No. 214 — November 7, 1996 STATE COURT CASES CIVIL PROCEDURE 07-2-0471 Greer v. Spiniello Constr. Co., etc., App. Div. (4 pp.) Under the totality of the circumstances, the judge s refusal to reinstate plaintiff s slip and fall complaint — or allow the filing of a second complaint — was a mistaken exercise of discretion, since the first complaint, although dismissed without prejudice, was filed within time, the second complaint was filed only one month after the statute of limitations ran, and the defendant was aware of the action and suffered no prejudice. 07-2-0472 The Hospital Center at Orange, etc., et al. v. Ntshona, App. Div. (9 pp.) The procedural errors in this case — including the trial court s sua sponte suppression of defendant s answer and jury demand, and dismissal of counterclaim — were of such dimension as to have denied defendant a fair trial, and judgment for plaintiff is reversed. CIVIL PROCEDURE — APPEALS — ENVIRONMENT 07-2-0473 Bartell, et al. v. Boettcher, et al., App. Div. (6 pp.) In litigation instituted by plaintiffs for contamination of their well by a leak from a gasoline tank owned by defendants, because the case ended in settlement and there was no order dismissing the defendants cross-claim against co-defendant, there is no final judgment regarding the cross-claim from which the defendants can appeal, and appeal is dismissed. CIVIL PROCEDURE — ESTATES 07-2-0474 McAfee v. McAfee, App. Div. (3 pp.) The non-appearance of plaintiff s counsel because of a heavy trial schedule, failure of opposing counsel to return telephone calls, and the absence of a calendar call, constituted excusable neglect, and therefore the trial court abused its discretion by dismissing plaintiff s complaint and thereafter denying her motion to vacate the dismissal; further, the judge s failure to make the required findings regarding the existence of a meritorious claim mandates remand. FAMILY LAW — CUSTODY 20-2-0475 O Dwyer v. O Dwyer, App. Div. (14 pp.) Where plaintiff sought to restrict defendant s visitation, and to require child support obligation to be paid through the probation department, and where defendant did not answer plaintiff s allegations but raised on cross-motion only one new factual allegation and requested a change of custody, the judge correctly determined that there was not a genuine and substantial issue as to custody, and her denial of the cross-motion without a plenary hearing is affirmed. Judge also did not err in awarding wage garnishment for payment of child support under N.J.S.A. 2A:17-56.23. FAMILY LAW — EMANCIPATION 20-2-0476 Kozlowski v. Kozlowski, App. Div. (3 pp.) Judge s decision that 20-year old son s receipt of a partial R.O.T.C. scholarship was not sufficient to emancipate him is affirmed. INSURANCE — VERBAL THRESHOLD 23-2-0477 Kporlor v. Tamba, et al., App. Div. (6 pp.) The plaintiff made an adequate showing of causal relationship and serious impact to create a genuine issue of fact for the jury to determine, and the judge usurped this function in granting summary judgment to the defense. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0478 Peterson v. Bd. of Review, et al., App. Div. (2 pp.) Since truck driver s termination was based upon his inability to drive due to a DWI conviction, he was properly denied benefits since the cause of his inability to work was his own actions, resulting in the loss of the necessary driver s license. PARENT/CHILD 28-2-0479 In the Matter of K.W., etc., App. Div. (14 pp.) In matter which had originally been brought as DYFS s effort toward natural family reunification, the judge did not err in denying foster parents application to have the court terminate the parental rights of the natural father and their request to direct DYFS to institute adoption proceedings, since those proceedings must be brought separately to give natural parents the chance to defend. WORKERS’ COMPENSATION 39-2-0480 Foster v. CWS Industries, Inc., App. Div. (10 pp.) Judge correctly determined that petitioner had not sustained a compensable accident during the course of his employment with respondent, finding that petitioner suffered from a lack of credibility, and that all of the medical evidence seemed in accord with the fact that petitioner had an extensive medical history predating his employment with respondent. CRIMINAL LAW AND PROCEDURE — LENGTH OF DETENTION 14-2-0481 State v. Dickey, App. Div. (20 pp.) Where police had to ascertain who owned the car they stopped for driving erratically, and whether defendant and codefendant had the authority to use the car, the officers acted as diligently as possible under the circumstances in bringing the men to the station house and having the car towed, and, with the suspicious manner in which the codefendants were acting, the police acted as quickly as possible to procure the services of a narcotics-sniffing dog to confirm their suspicion that the vehicle might contain contraband, therefore detention of approximately three hours was not unreasonable under the circumstances. [Approved for publication Nov. 7, 1996.] FEDERAL COURT CASE PRODUCT LIABILITY 32-7-0482 McGeough, et al. v. Doctors Financial Fund, Inc., et al., U.S. Dist. Ct. (9 pp.) Since there is a factual dispute as to whether the chiropractic table in dispute could have been designed more safely in a cost-effective manner, and the risk-utility analysis is a fact-specific inquiry, this suit — for injuries suffered by chiropractor when automatic table pinched his wrist as he was trying to adjust it — is not ripe for summary judgment, and defendant distributor s motion is denied. [Filed Oct. 18, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Sen. Frank Lautenburg says he will share coveted judial recommendations with Sen.-elect Robert Torricelli. See page 1 of the Nov. 11 Law Journal.

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