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Vol. 4, No. 213 — November 6, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-0458 Joanne Jones v. Thomas B. Mading, Esq., App. Div. (6 pp.) In legal malpractice case emanating out of the attorney’s failure to file a complaint in an assault and battery case, where punitive damages were sought in addition to compensatory damages, it was critical that the jury be presented with the facts of the underlying cause of action in order that they could reach a fair, appropriate verdict with regard to liability and punitive damages, and the failure of the trial judge to grant a continuance — when the principal witness in the assault matter could not attend the trial — was an abuse of discretion which denied the attorney his right to a fair trial. DEBTOR/CREDITOR — FRAUDULENT TRANSFERS 15-2-0459 Tuckerton Lumber Co. v. Tidal Constr. Co., Inc., et al., App. Div. (12 pp.) The trial judge misinterpreted the Uniform Fraudulent Transfer Act, resulting in the erroneous conclusion that, because the transfer of certain real property from debtors to transferees was made in exchange for the payment of fair market value, the transferees were entitled to summary judgment on claim of creditor alleging that the transfer was fraudulent. INSURANCE — DUTY TO DEFEND — HOSTILE WORKPLACE CLAIMS 23-2-0460 Lisa M. Schmidt v. Dennis Smith, et al., App. Div. (26 pp.) Summary judgment ordering that employer’s insurer had a duty to defend and indemnify employer and employee in plaintiff’s claim of hostile work environment/sexual harassment is affirmed insofar as the trial court concluded that (1) employer was vicariously liable as a matter of law for the intentional acts of the employee, (2) employer reasonably could expect coverage for its vicarious liability resulting from the intentional torts of an employee under the employer’s liability policy, and (3) the Workers’ Compensation Act is not the worker’s sole and exclusive remedy under the circumstances alleged, however, (4) although the insurer had a duty to defend the employee, the trial court erred in finding coverage for the employee under either policy. [Approved for publication Nov. 6, 1996.] INSURANCE — VERBAL THRESHOLD 23-2-0461 Farida Stein v. Martin McGlynn, App. Div. (8 pp.) Where plaintiff’s medical report emphasized a finding of swelling consistent with “residuals of chronic spasm” and her physician’s certification also discerned spasm, this, coupled with the fact that, as of the date of the summary judgment motion, plaintiff had renewed treatment, was sufficient to overcome summary judgment; the fact that treatment had been resumed and was still ongoing rendered any consideration of defendant’s motion premature. LANDLORD/TENANT — RENT INCREASES 27-2-0462 Fromet Properties, Inc. v. Delores Buel, et al., App. Div. (21 pp.) In a case analyzing unconscionable rent increases under N.J.S.A. 2A:18-61.1(f), and the applicability and meaning of N.J.S.A. 2A:42-10.12, which addresses retaliatory rent increases, the court properly assessed defendant-tenants’ evidence as to retaliation and properly concluded that defendants had failed to prove retaliation, and plaintiff’s intended rent increase was not unconscionable. [Approved for publication Nov. 6, 1996.] NEGLIGENCE — SUPERMARKETS 31-2-0463 Johanny Llaverias v. Shop-Rite Supermarkets, et al., App. Div. (14 pp.) In case where plaintiff was attacked in supermarket by her estranged husband, judge correctly vacated a jury verdict rendered in favor of plaintiff and granted judgment n.o.v. to the supermarket, finding that the supermarket had no duty to protect the plaintiff or take precautions against a violent criminal attack by a third party. NEGLIGENCE — TORT CLAIMS ACT — TMJ 31-2-0464 Joyce A. Mack v. Passaic Valley Water Commission, et al., App. Div. (12 pp.) Analyzing whether plaintiff’s temporomandibular joint injury meets the statutory standard for permanent disability under the Tort Claims Act, the court holds that plaintiff has established a material question of fact as to whether she has sustained a permanent loss of bodily function within the meaning of N.J.S.A. 59:9-2(d), and reverses the grant of summary judgment to the defense. [Approved for publication Nov. 6, 1996.] 31-2-0465 Bernadette Cerami v. University of Medicine and Dentistry of N.J., et al., App. Div. (4 pp.) The court erred when it adopted as its own the reasons set forth in the defense papers, rather than making independent findings and conclusions, and summary judgment granted in favor of the defense is reversed and remanded for such findings. NEGLIGENCE — WORKPLACE 31-2-0466 Edwin DeYoung, et al. v. Camden Lime Co., et al., App. Div. (3 pp.) The fact that workplace injury was caused by a defective piece of equipment previously owned by a predecessor corporation to employer, does not permit plaintiff to impose common law liability upon the successor corporation to surmount the exclusivity of the workers’ compensation bar. PUBLIC EMPLOYEES — EARLY RETIREMENT 33-2-0467 In re: Final Administrative Determination of Nancy Lutz v. Bd. of Trustees, P.E.R.S., App. Div. (8 pp.) Plaintiff’s application for admission to the early retirement incentive program was properly rejected because she did not meet the qualifications, and her allegations that the program unconstitutionally discriminates between county and municipal employees is without merit, as the program does not involve either a suspect class nor a fundamental right, and is rationally related to a legitimate government objective. WORKERS’ COMPENSATION — RACING INDUSTRY 39-2-0468 Jeffrey Lohmeyer, etc. v. Frontier Ins. Co., App. Div. (13 pp.) Examining the extent of workers’ compensation coverage provided in a policy of insurance issued by defendant to a stable for injuries sustained in a work-related accident by plaintiff, an employee of the stable, but which accident occurred at a location not specifically set out in the policy as a covered workplace, the court finds that the judge ignored the overall intent of the regulatory scheme of the N.J. Racing Commission and workers’ compensation laws by finding that plaintiff’s accident was not covered. [Approved for publication Nov. 6, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-0469 State v. Anthony Powell, App. Div. (13 pp.) (1) Consensual search of a car can include the removal of a door panel, and scope and intensity of search in this case is affirmed. (2) Because defendant has presented a prima facie case of ineffective assistance of counsel, a post-conviction relief evidential hearing must be held. (3) Matter is remanded for re-sentencing because the State did not explain why it did not waive all or part of the parole disqualifier pursuant to State v. Vasquez. [Approved for publication Nov. 6, 1996.] FEDERAL COURT CASE INTELLECTUAL PROPERTY — COPYRIGHT 53-7-0470 Broadcast Music, Inc., et al. v. 84-88 Broadway, Inc., etc., et al., U.S. Dist. Ct. (23 pp.) A sub-licensing agreement entered into between a music service and defendant, which allowed the defendant to provide background music containing copyrighted compositions licensed by plaintiff, did not confer upon defendant the right to host live or disc jockey performances of the same copyrighted compositions, therefore the performances infringed on plaintiff’s copyright, and further performances are enjoined. [Filed Oct. 22, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The State Bar Association has asked for $32,310 in attorney registration fees to help re-educate unethical lawyers, but former state Attorney General John Degnan suggests that the request is a ploy by the Bar to pad its budget. See page 29 of the Nov. 4 Law Journal.

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