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Vol. 4, No. 210 — October 31, 1996 STATE COURT CASES CIVIL PROCEDURE — FRIVOLOUS CLAIMS 07-2-0416 Sebco Corp. v. Gordon & Thomas Cos., et al., App. Div. (7 pp.) In denying one defendant’s application for counsel fees under the Frivolous Claim Act — made after plaintiff voluntarily dismissed its case against said defendant once discovery was completed — the judge correctly determined that plaintiff had a reasonable basis to believe that this defendant had negotiated a laundry contract with other defendants, thereby interfering with an existing 10-year contract between plaintiff and the latter defendants, and that the claim was not frivolous. CORPORATIONS 12-2-0417 John Kashickey v. Estate of John P. Lee, et al., App. Div. (6 pp.) Evidence supports judge’s order of dissolution in an action brought due to deadlocked board of directors, and his order distributing corporate assets, in part, by payment of an annualized salary to plaintiff with annual profits to be shared equally by the parties, is affirmed. DEBTOR/CREDITOR 15-2-0418 Pamela Bombara v. Anthony Bombara, et al., App. Div. (8 pp.) In case dealing with monies loaned by father to his son and son’s wife, where the nature of the loan came into question when the debtors experienced marital difficulties, judge correctly calculated amounts due and concluded that loan was an interest-only mortgage, and was a valid second lien on the property, and plaintiff’s contentions that the judge erred in admitting parol evidence and that he erred in applying a preponderance of the evidence standard — as opposed to a clear and convincing standard — are without merit. FAMILY LAW 20-2-0419 Frank T. Italiano, Jr. v. Joanne M. Rudkin (Italiano), App. Div. (6 pp.) The increase in the cost of living, together with evidence that plaintiff’s income had increased from $17,500 when the property settlement agreement was entered into to approximately $80,000 at the time of ex-wife’s motion for an increase in child support, constituted a change of circumstances, and the judge erred in denying the motion and in failing to apply the Child Support Guidelines. [Approved for publication Oct. 31, 1996.] 20-2-0420 Marilyn Militscher v. Darren Militscher, App. Div. (9 pp.) On defendant’s challenge to certain aspects of divorce judgment: (1) Judge mistakenly exempted certain monies from the marital estate just because plaintiff possessed the funds prior to marriage, but the court rejects the defendant’s argument that the funds were converted into a joint asset simply by virtue of the commingled status of the account; judge must consider plaintiff’s intent on remand and ascertain whether she clearly manifested an unequivocal intent that the funds be returned to her despite the fact that she added her husband’s name to the account and thereby created a joint account. (2) Judge erred in crediting plaintiff with a hypothetical broker’s commission in connection with her exercising her right to purchase defendant’s interest in the marital residence, since plaintiff planned to remain in the property and no sale was contemplated. (3) College education trust provision is affirmed. (4) Remand is required of provision in judgment giving plaintiff a credit for the sum she allegedly paid to the IRS for delinquent taxes and a penalty. INSURANCE — TEMPORARY DISABILITY BENEFITS 23-2-0421 Emily Roldan v. State, Dept. of Labor, etc., App. Div. (8 pp.) Claimant presented sufficient competent medical evidence in support of her claim for disputed nine week period, and since Appeals Tribunal does not give reasons for disregarding same, denial of benefits must be reversed and remanded. INSURANCE — UNDERINSURED MOTORIST BENEFITS 23-2-0422 Philip Farruggia v. Selective Ins. Co., App. Div. (3 pp.) Judge correctly determined that plaintiff was entitled to proceed for UIM benefits from the policy of automobile liability insurance issued by defendant, since he was not bound by the UIM limit of his father’s policy, although he was considered an insured under that policy, since he did not choose those limits and the limits were not within his reasonable expectations. INSURANCE — UNINSURED MOTORIST BENEFITS 23-2-0423 Wilner Elisca, et al. v. Market Transition Facility of N.J., et al., App. Div. (7 pp.) Plaintiffs’ insurer was not at liberty to proceed as if it were settling accident claim, making no investigation on its own, and then denying the claim on the ground that the running of a NY statute of limitations deprived it of its highly dubious subrogation rights against owner of truck which hit plaintiffs, and judge erred in granting insurer’s motion for summary judgment dismissing UM action. LABOR AND EMPLOYMENT 25-2-0424 Anthony Anzivino v. Source One Mortgage Svcs. Corp., et al., App. Div. (5 pp.) On terminated employee’s claim for unpaid compensation, the court affirms the calculations and judgment of the trial court, noting, however, that it does not approve the contract or policy of the employer that requires withholding all commissions that would otherwise be payable to a terminated employee, pending post termination audit. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0425 Estella T. Vazquez v. Bd. of Review, App. Div. (2 pp.) Despite appellant’s contention that she left work because she was harassed by co-workers, she was properly denied benefits as the result of a voluntary quit because the employer held a meeting to resolve the problems between the co-workers, and employee was found to have left because she believed the employer wasn’t “really hearing (my) version, not really hearing me out.” 25-2-0426 Sherry L. Donlan v. Bd. of Review, App. Div. (2 pp.) Where nurse lost her license — a prerequisite to employment — due to her own delays in processing application, her loss of the job was properly considered a voluntary quit and she was correctly denied unemployment benefits. LAND USE 26-2-0427 Joseph Horner v. Borough of Somerville Bd. of Adjustment, et al., App. Div. (8 pp.) Law Division judge wrongly decided that denial of use variance — to construct a convenience store on a split-zoned tract — was unreasonable under the split- zoning that existed when the application was before the board of adjustment, and the appellate division reverses based on the time of decision rule as expressed in Manalapan L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366 (1995). NEGLIGENCE — DEFAULT 31-2-0428 Jason Kovac, etc., et al. v. Paul Moon, etc., et al., App. Div. (5 pp.) Judge improperly denied defendants’ motion to vacate default previously entered against them due to the conduct of their now-disbarred attorney and due to the fact that the default judgment was entered in complete disregard of procedural requirements. NEGLIGENCE — INFANT TRESPASSERS 31-2-0429 Samuel Vega, etc., et al. v. Robert Piedilato, et al., App. Div. (20 pp.) In a case where 14-year old plaintiff was injured while trespassing on Mischief Night — when he fell into an air/light shaft between two three-story apartment buildings owned by defendants — the motion judge properly granted summary judgment to the defense, concluding that the shaft did not pose an “unreasonable risk” because it was an “obvious” danger and the fall was an “act of youthful recklessness and bravado.” [Approved for publication Oct. 31, 1996.] NEGLIGENCE — TORT CLAIMS ACT 31-2-0430 Sara Gariazzo Umar v. Housing Authority of Union City, et al., App. Div. (4 pp.) Where plaintiff sued for injuries she sustained when she fell in front of property owned by defendant, judge properly dismissed complaint since plaintiff had failed to establish that defendant had actual or constructive notice of alleged pavement defects, which notice is required to prevail under the Tort Claims Act. PHYSICIAN/PATIENT — SEXUAL ASSAULT 29-2-0431 Migdalia Rodriguez, et al. v. Jersey City Medical Ctr., App. Div. (6 pp.) In case where patient sued hospital under the doctrines of respondeat superior and apparent authority for improper physical examination done by phlebotomist, judge erred in dismissing complaint because the evidence could have led to the conclusion that the phlebotomist was authorized to examine and palpate the patient’s abdomen, thus raising a material fact issue on the issue of apparent authority. UTILITIES 37-2-0432 In the Matter of the Motion by Public Service, etc., App. Div. (8 pp.) Board of Public Utilities correctly denied PSE&G’s motion to classify and treat as confidential certain information contained in its off-tariff rate agreement with a customer, which was filed with the Board pursuant to the Rate Flexibility Law, N.J.S.A. 48:2-21.24 to -21.30. WORKERS’ COMPENSATION 39-2-0433 William Painter v. Salem Cy. Sheriff’s Dept., App. Div. (3 pp.) Claim petition was properly dismissed because the statute of limitations had run, and the petitioner’s claim that, by paying for his treatment, respondent ratified and affirmed its continued obligations to petitioner, are without merit. FEDERAL COURT CASES INSURANCE — LIFE INSURANCE — ERISA 23-7-0434 Ida K. Daniels, etc v. Thomas & Betts Corp., et al., U.S. Dist. Ct. (6 pp.) Since plaintiff, in her amended complaint suing deceased husband’s employer for life insurance benefits, alleges causes of action which were virtually identical to state claims previously dismissed by the court — such as intentional and negligent misrepresentation, mistake, lack of capacity, and negligence — the court grants defendant’s motion to dismiss since the causes of action are preempted by ERISA, and the fact that the amended complaint makes references to “the act” does not convert these state law actions into ones cognizable under the ERISA statute. [Dated Oct. 17, 1996.] LABOR AND EMPLOYMENT — ARBITRATION 25-7-0435 Public Service Electric and Gas Co. v. The Public Service Constr. and Gas Appliance Workers, etc., et al., U.S. Dist. Ct. (16 pp.) In labor arbitration where plaintiff was found to have wrongly discharged one of its workers as a result of the worker’s alleged altercation with a police officer, the arbitrator did not prevent plaintiff from presenting relevant evidence required to meet its burden of proof and hearing was fundamentally fair. Plaintiff’s equitable arguments also fail, and arbitrator’s decision is affirmed. [Dated Oct. 15, 1996.] A Daily Reporter of New Jersey Court Decisions NEXT WEEK IN THE … Four employees of the Bergen County Prosecutor’s Office were demoted after they found probable cause to prosecute a lieutenant for fraud, according to a confidential memo from the attorney general’s office. See page 1 of the Nov.4 Law Journal.

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