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Vol. 4, No. 209 — October 30, 1996 STATE COURT CASES CONTRACTS — CONSTRUCTION — CONSUMER FRAUD 11-2-0403 Richard Cherchio, et al. v. V&F Constr. Co., Inc., et al., App. Div. (24 pp.) In case dealing with defendants’ masonry negligence and breach of contract for terracing and stonework on plaintiffs’ property, the interests of justice require a remand to explore whether municipal permits were required, and whether there was a violation of the Consumer Fraud Act in that regard. INSURANCE — VERBAL THRESHOLD — SIGNIFICANT IMPACT 23-2-0404 Mark J. Healey v. Jennifer B. Muhlschlegel, et al., App. Div. (10 pp.) The judge correctly found evidence of injury based on findings of spasm and an MRI showing a herniated nucleus pulposus, but erred in holding that the injuries did not have the required significant impact on plaintiff’s life, since, even though each of the difficulties in themselves may appear relatively minor, in the aggregate, they rise to the level of a significant impact on the life of the 28-year old plaintiff. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0405 Michelle Zara v. Bd. of Review, Dept. of Labor, App. Div. (3 pp.) Although petitioner now contends that she left her job due to work-related responsibilities which affected her health, she was properly disqualified for benefits because she produced no medical evidence to that effect, and her written letter of resignation indicated that she was leaving to pursue other career opportunities. LANDLORD/TENANT — SECURITY DEPOSITS 27-2-0406 Gino Lanzi, et al. v. Warren North, App. Div. (5 pp.) Judgment is affirmed in favor of tenants in a case involving landlord’s failure to return security deposit, however the judge erred in the calculation of the award, as tenant is entitled to double the security deposit paid, plus interest accrued thereon, minus any sum due landlord for rent owed. PHYSICIAN/PATIENT 29-2-0407 Susan Robertson, et al. v. Frank L. Redo, M.D., et al., App. Div. (11 pp.) There were not sufficient facts presented to justify the trial court’s grant of summary judgment on the issue of plaintiffs’ awareness of defendants’ fault without a Lopez hearing, and granting of summary judgment to defendants based on the statute of limitations is reversed. PUBLIC EMPLOYEES 33-2-0408 Edward Lange v. Bergen Cy. Sheriff’s Dept., App. Div. (2 pp.) Corrections Officer was properly removed from his position for unbecoming conduct when, while under the influence of alcohol and cocaine, and after an argument with his father, he fired three rounds from a hunting rifle in front of his father’s home. TORTS — WORKPLACE 36-2-0409 Valorie R. Smith, etc. v. Joseph Oat Corp., et al.; Curtis Jenkins, etc. v. Joseph Oat Corp., App. Div. (12 pp.) In case where plaintiffs’ decedents died when they were overcome by argon gas while in tanks at their place of employment, the court correctly granted summary judgment dismissing the individual defendants, but erred in denying summary judgment to the employer since the allegations, while showing a workplace injury caused either by gross negligence or an abysmal lack of caring for the safety of employees in relationship to cost, did not rise to the level of intentionality required to surmount the workers’ compensation bar. WORKERS’ COMPENSATION 39-2-0410 Nicol Day v. State of N.J., Dept. of Human Svcs., App. Div. (4 pp.) Judge erroneously found that worker was the victim of discrimination when employer refused to grant her repeated requests for a shift change, and then reassigned a less-senior employee to the desired shift, and that such discrimination created stressful working conditions peculiar to petitioner’s work justifying award; the physical and emotional sequelae to her unhappiness with her continued assignment to the night shift are not peculiar to her workplace. FEDERAL COURT CASES CIVIL PROCEDURE — CONTRACTS 07-2-0411 The Platinum Group, Inc. v. Ruth Landers, et al., U.S. Dist. Ct. (11 pp.) Plaintiff’s motion to dismiss counterclaim against its principal is granted, apart from any substantive defects, for procedural deficiencies and untimeliness, however defendants’ motion for leave to file an amended counterclaim and to join the same principal as a counterclaim defendant is granted since the principal is certainly aware of the action and no prejudice will result. Plaintiff’s motion for summary judgment on defendants’ legal malpractice claim against the principal is granted, since there is no evidence that defendants were relying on the principal in his capacity as an attorney. [Filed Oct. 17, 1996.] LABOR AND EMPLOYMENT — L.A.D. — STAYS 25-7-0412 William Failla v. City of Passaic, et al., U.S. Dist. Ct. (6 pp.) The court denies defendants’ motion for a stay without the posting of a supersedeas bond — pending appeal of ruling in favor of plaintiff on his NJLAD claim — since, although the defendant has adequate resources to satisfy the judgment, there is evidence which suggests that payment would not be made within a short period of time. [Filed Oct. 17, 1996.] LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-8-0413 Preston Hampton, et al. v. Borough of Tinton Falls Police Dept., et al., Third Cir. (24 pp.) In case where Black plaintiffs allege illegal discrimination in connection with the municipal defendant’s decision not to promote one plaintiff from sergeant to lieutenant, the district court properly granted summary judgment on plaintiff’s disparate-impact claim, but erred in granting summary judgment on plaintiff’s disparate treatment claims, inter alia, clearly usurping the role of the jury. [Filed Oct. 18, 1996.] LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-7-0414 Leyla Zamora v. Furniture King, Inc., etc., et al., U.S. Dist. Ct. (15 pp.) In a workplace sexual harassment and wrongful termination case, (1) since individual employees cannot be held personally liable under Title VII for sexual harassment in the workplace, those allegations of plaintiff’s complaint are dismissed, however, (2) the court holds that under the NJLAD, supervisory employees who affirmatively further the discriminatory conduct of an employer can be held personally liable, and, since there exist fact questions about defendants’ conduct in this case, the court denies defendants’ motion to dismiss those claims. Since there are material questions of fact as to plaintiff’s claims for intentional infliction of emotional distress, slander and tortious discharge, these claims survive defendants’ dismissal motion. [Filed Oct. 17, 1996.] MUNICIPAL LAW — LABOR — CONSTITUTIONAL LAW 30-7-0415 Hudson County Bldg. and Constr. Trades Council, AFL-CIO v. City of Jersey City, U.S. Dist. Ct. (23 pp.) On labor union’s challenge to municipal ordinance — mandating that the recipients of economic incentives from the City execute an agreement and make a good faith effort to hire City residents and minorities for construction jobs — (1) the court finds that the ordinance burdens the opportunity of out-of-state residents to seek employment with private employers, a privilege protected by the Privileges and Immunities Clause, however summary judgment is not appropriate because fact issues of the City’s justification for the ordinance remain; (2) Because no fundamental right or suspect class is implicated in equal protection argument, the proper test is whether the ordinance rationally furthers a legitimate state purpose, and since a factual question exists, summary judgment is inappropriate; (3) The issue of whether the provisions of the ordinance are preempted by either “Garmon preemption” or “Machinists Preemption” under the NLRA is not amenable to summary judgment, as questions of fact remain; and (4) Since the ordinance does not attempt to interpret any collective bargaining agreement and has no effect on arbitration regarding the terms of any CBA, the ordinance is not preempted by section 301 of the NLRA. [Filed Oct. 17, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A Law Journal survey shows that in the past year, the number of minority partners at 20 major firms in the state has increased by one, to 11, among the 737 partners at those firms. See page 29 of the Oct. 28Law Journal.

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