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Vol. 4, No. 220 — November 18, 1996 STATE COURT CASES CORRECTIONS 13-2-0557 Hickenbottom v. Dept. of Corrections, App. Div. (5 pp.) In appeal of a disciplinary matter over drug infractions, the court does not have to reach the inmate’s contention that the “substantial evidence” standard used violated his due process rights because it is merely a standard of review, not a standard of proof, since the nature of the proofs presented in this case were overwhelming under any standard. FAMILY LAW — CHILD SUPPORT 20-2-0558 Bailey v. Bailey, App. Div. (11 pp.) Judge did not abuse his discretion by refusing to grant defendant’s application to vacate child support provisions of divorce judgment since (1) the Child Support Guidelines were not adopted to govern a situation where a settlement was negotiated by the parties, as here, (2) defendant did not prove that he was under duress from the judge or his attorney to settle the case, and (3) the order was not so unfair that it should not be enforced. FAMILY LAW — VALUATION 20-2-0559 Ely v. Ely, App. Div. (25 pp.) Defendant s challenges to various economic issues raised in her judgment of divorce are meritorious, because the judge made mathematical miscalculations in arriving at the ultimate value of family car dealerships. INSURANCE — VERBAL THRESHOLD — HIT AND RUN 23-2-0560 Jimenez v. Baglieri, et al., App. Div. (3 pp.) A claim against the Unsatisfied Claim and Judgment Fund by a person injured by a hit-and-run driver is not subject to the verbal threshold, and the court specifically disapproves of the opinion in Cureton v. Eley, ___N.J. Super___(Law Div. 1996) which reached the opposite result. Also, the denial of a one-day adjournment of the trial when the Fund’s expert witness was unavailable because of a postponement to accommodate a mishap to plaintiff’s attorney was a mistaken abuse of discretion. [Approved for publication Nov. 18, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0561 Hall v. Bd. of Review, App. Div. (3 pp.) Where employee quit her job because of smoking at the workplace and the use of profanities by other employees, she quit voluntarily and was properly disqualified for benefits, since the employer had taken measures to correct the problems and the employee made no further complaints thereafter. 25-2-0562 Driesse v. Bd. of Review, App. Div. (5 pp.) Employee was properly held disqualified for unemployment benefits where, after taking a part-time position, she became disabled due to pregnancy and then became entitled to disability benefits, since at that point she could not qualify for unemployment benefits because she was no longer “available” for work due to her disability. LAND USE 26-2-0563 Sussman, et al. v. Twp. Committee of Colts Neck, et al., App. Div. (3 pp.) Judge correctly concluded that the municipality did not need to obtain site plan approval from its own subordinate planning board for the expansion of a park — a project it undertook for strictly public purposes. NEGLIGENCE — CASINOS 31-2-0564 Wiskowski v. Showboat Hotel & Casino, App. Div. (6 pp.) In a case for personal injuries suffered when plaintiff tripped and fell over a stanchion that had been knocked over by fighting restaurant patrons, the defendant was properly granted summary judgment since there was no reason for the defendant to anticipate the “likelihood” that one of its customers would back into the stanchion and knock it into plaintiff’s path, and plaintiff produced no expert witness to establish any other reason for liability. NEGLIGENCE — SEX ABUSE — ENTIRE CONTROVERSY — LIMITATIONS 31-2-0565 Glasspool, et al. v. Seltzer, M.D., et al., App. Div. (12 pp.) Where defendants, through psychiatric and drug treatments, allegedly recovered a patient’s repressed memories of sexual abuse, as a result of which the patient, in 1990, sued her relatives and a minister for such abuse, the present malpractice action of the relatives against the defendants is barred by the statute of limitations and the entire controversy doctrine, since it should have been raised in the 1990 litigation. PHYSICIAN/PATIENT 29-2-0566 Guglielmo, et al. v. Mould, et al., App. Div. (6 pp.) Because expert testimony was required in this case to distinguish between an appropriate medical examination, to which the plaintiff had consented, and a technical battery, which she alleged took place when the scope of the examination exceeded her consent, and, since no expert witness was offered, and the judge did not err in refusing to allow a 60-day extension to plaintiff on the eve of trial to obtain one, summary judgment for the doctor was proper. PRODUCT LIABILITY — GUNS 32-2-0567 Hurst, etc., et al. v. Glock, Inc., et al., App. Div. (10 pp. — incl. concurring opinion) Where one child shot another using a pistol that was not equipped with a “magazine disconnect” safety device, summary judgment was improvidently granted under section 3a(2) of the Products Liability Act, i.e. that the harm was caused by an unsafe but inherent aspect of the product which would be recognized by an ordinary user, since an exception to the absolute defense lies where the danger “can be feasibly eliminated without impairing the usefulness of the product” and the plaintiffs established that that was a question of fact. [Approved for publication Nov. 18, 1996.] REAL ESTATE — BROKERS COMMISSIONS 34-2-0568 Cushman & Wakefield of N.J., Inc. v. Alexander Summer Co., et al., App. Div. (16 pp.) Judge correctly found that defendants had wrongfully interfered with plaintiff’s reasonable expectation of economic gain, which resulted in loss of commissions earned on the lease for defendant’s branch banks, but judge erred in (1) finding that the wrongful conduct did not entitle plaintiff to a commission on defendant’s lease of a site adjacent to a property that had been rejected, since the two sites were blended together in marketing literature and (2) refusing to consider broker’s reasonable litigation expenses in the punitive damage award. [Approved for publication Nov. 18, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-0569 State v. Manthey, App. Div. (9 pp.) Although defendant’s convictions and sentence should be affirmed — in matter relating to his failure to remit sales and withholding taxes and to file proper tax returns in the operation of his business — the conviction under count for failure to pay taxes should have merged into the conviction under count for misapplication of entrusted property. [Approved for publication Nov. 18, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-6-0570 In re: Shirley Simmons, Debtor, U.S. Bankruptcy Ct. (18 pp.) When a sheriff sells property to the highest bidder at a sale conducted in accordance with applicable N.J. statutes and court rules, a foreclosure sale has been conducted within the meaning of 11 U.S.C. section 1322(c)(1), and the debtor may not thereafter cure defaults and reinstate the mortgage pursuant to provisions of Chapter 13 of the Bankruptcy Code, notwithstanding that she filed for such relief before the expiration of her right of redemption and before delivery of the deed. [Filed Nov. 1, 1996.][For publication.] JURISDICTION 24-7-0571 Resolution Management Consultants, Inc. v. Doepken, Keevican & Weiss, U.S. Dist. Ct. (9 pp.) In a case where plaintiff — a Georgia consulting firm — was retained by defendant — a Pennsylvania law firm — to provide an expert report and testimony in an Illinois lawsuit for defendant s client, and sues for its fees, (1) defendant s motion to dismiss for lack of personal jurisdiction is denied because plaintiff has set forth substantial evidence indicating that the contemplated future consequences of the contract and the parties actual course of dealing involved meaningful contacts between defendant and N.J., and the bulk of the work was performed in N.J. at the specific direction of defendant by telephone and facsimile transmissions. (2) Defendant s motion to transfer venue to Pennsylvania is denied since defendant has not demonstrated even to a preponderance of the evidence that the balance of conveniences weighs so strongly for transfer as to overcome the presumption in favor of plaintiff s choice of a home forum. [Filed Nov. 1, 1996.] LABOR AND EMPLOYMENT — SEXUAL HARASSMENT — BONDS 25-7-0572 Sgt. Donna Hurley, et al. v. The Atlantic City Police Dept., et al., U.S. Dist. Ct. (17 pp.) On defendants motion to stay the execution of judgment in a sexual harassment case, and to waive the bond requirement pursuant to F.R.C.P. 62, the court grants the motion of the police department because its status as a municipality entitles it to a stay without posting a bond under F.R.C.P. 62(f) and N.J. Ct. R. 2:9-6(b). Further, the court grants the individual defendant s motion because he has shown good cause why he should not be required to post a bond, including the possibility that the judgment will be satisfied by the municipality, that the individual defendant will be indemnified, and that the individual defendant would face bankruptcy if execution is allowed. [Filed Nov. 6, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Assistant prosecutors in Union County are suing to gain entry into New Jersey’s Police and Firemen’s Retirement System, arguing that their special duties as law enforcement personnel qualify them as “police officers.” See page 1 of the Nov. 18 Law Journal.

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