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Vol. 4, No. 225 — November 25, 1996 STATE COURT CASES CONSTRUCTION 43-2-0620 Muirfield Constr. Co., Inc. v. Cy. College of Morris v. First Indemnity of America Ins. Co., et al., App. Div. (6 pp.) (1) Due to duties retained by college in the role of construction manager, it was improper for judge to preclude a claim against the college by one of the contractors, and since discovery was incomplete on the reasons for delay in project, summary judgment in favor of college is reversed. (2) Since claims between college and architect could not be resolved without reference to the contract, which was not before the motion judge, summary judgment in favor of architect must also be reversed. (3) Summary judgment was properly entered in favor of another contractor’s surety, however, since the college cannot look to the insurer for indemnification for damages caused by the college’s own acts or omissions. FAMILY LAW — CHOICE OF LAW 20-2-0621 Black v. Walker, App. Div. (23 pp.) Analyzing case under choice of law principles, the court finds that the trial judge did not err in concluding that N.J. law governs the duty of decedent and his estate to contribute substantially to the cost of his daughter’s college education where the daughter was a lifelong resident of N.J. [Approved for publication Nov. 25, 1996.] FAMILY LAW — EMANCIPATION 20-2-0622 DeVoe v. De Voe, App. Div. (3 pp.) 23-year old daughter was properly declared unemancipated even though she carried less than a full credit load in her college education, since daughter suffered from verbal disabilities and judge correctly recognized that students with learning disabilities may still have to work full-time to carry less than a full course load. INSURANCE — ENVIRONMENT 23-2-0623 Beazer East, Inc. v. Ins. Co. of North America, et al., App. Div. (9 pp.) Weighing procedural dilemmas confronting plaintiff in several environmental clean up and indemnification suits in different state courts and in federal court, the judge did not abuse his discretion in permitting plaintiff to dismiss its N.J. action without prejudice as to all parties without costs. INSURANCE — HOUSEHOLD MEMBERS 23-2-0624 Cyran v. Ragunan, et al.; Aetna Life & Casualty Ins. Co. v. Ragunan, et al., App. Div. (8 pp.) Trial court correctly granted summary judgment to the NJAFIUA, finding that defendant — who lived a nomadic lifestyle working in the business of horse racing — was not a “household member” in his father’s home and was therefore not covered under father’s policy issued by the NJAFIUA LAND USE 26-2-0625 Perlmart of Lacey, Inc., et al. v. Lacey Twp. Planning Bd., et al., App. Div. (13 pp.) Planning Board lacked jurisdiction to grant site plan, variance and conditional use permit applications because the required public notice defectively did not advise that the nature of the proposed use was a K-Mart shopping center, and proper notice is a jurisdictional prerequisite. [Approved for publication Nov. 25, 1996.] NEGLIGENCE 31-2-0626 Illionet v. Carfaro 1985 Limited Partnership, et al., App. Div. (5 pp.) In case where plaintiff claimed injury while opening her kitchen window, and filed a complaint and two amended complaints, trial judge correctly granted summary judgment to property owner who was not named until the second amended complaint, since plaintiff failed to properly name the owner of the property within the statute of limitations, and there was no “relation back” to the original complaint on the facts of this matter. NEGLIGENCE — CHURCH FESTIVALS — CHARITABLE IMMUNITY 31-2-0627 Loder v. St. Thomas Greek Orthodox Church, App. Div. (9 pp.) The motion judge did not err in concluding that plaintiff — who fell while attending a Greek festival on defendant church’s property — was a beneficiary of the charitable and educational works that the church was organized to advance, and the grant of summary judgment to the church on charitable immunity grounds is affirmed. [Approved for publication Nov. 25, 1996.] NEGLIGENCE — TORT CLAIMS ACT 31-2-0628 Cunningham, et al. v. City of Camden, App. Div. (10 pp.) On the evidence presented, the plaintiffs did not establish a prima facie case from which a jury could conclude that the city was liable under the Tort Claims Act for the collapse of a bus shelter on plaintiffs, and the grant of an involuntary dismissal was proper. PARENT/CHILD 28-2-0629 In the Matter of the Alleged Neglect of D.T., an Infant, App. Div. (3 pp.) DYFS’s finding that father was guilty of neglect — where father, while on vacation with son, consumed an excessive amount of wine and passed out on a bed, leaving the child to wander about — is affirmed as it is not manifestly corrupt, arbitrary or unreasonable, no matter how unfortunate the incident was, and despite the fact that the situation is not likely to be repeated. PHYSICIAN/PATIENT 29-2-0630 Wood v. Connor, App. Div. (6 pp.) Where various judges to whom this podiatric malpractice case was periodically assigned indulged plaintiff’s repeated requests for postponements — all necessitated by her repeated adjournment of the discovery deposition of her expert witness — judge did not abuse his discretion in granting defense motion to bar the expert testimony prior to the fifth trial listing, which, in turn, led to the dismissal of the plaintiff’s case since he was unable to prove the malpractice without such testimony. REAL ESTATE — BROKERS — ARBITRATION 34-2-0631 Schenck v. HJI Associates, et al., App. Div. (11 pp.) The trial court and the umpire appointed under the Alternative Dispute Resolution Act did not ignore the plain language of the contract between the parties, and correctly interpreted same considering the surrounding circumstances and relationships of the parties at the time the contract was entered into, to understand their intent and give effect to the written agreement; the court affirms the holding that broker was not entitled to commission in this case. [Approved for publication Nov. 25, 1996.] FEDERAL COURT CASES CONTRACTS — ACCORD AND SATISFACTION 11-7-0632 Wilson v. West, Jr., etc., U.S. Dist. Ct. (15 pp.) In a case against the Army brought by civilian employee for the Army’s alleged failure to fulfill the terms of a settlement agreement entered in an employment dispute, the court finds that the alleged factual disputes raised by the employee at best raise trifling inconsistencies, and do not materially impact the settlement agreement, and since it is clear from the evidence that the Army has fully performed its side of the bargain, summary judgment is granted in its favor based on accord and satisfaction. [Filed Nov. 13, 1996.] LABOR AND EMPLOYMENT 25-7-0633 Doyle, et al. v. Exxon Corp., etc., et al., U.S. Dist. Ct. (10 pp.) In discrimination case brought by N.J. employee which includes allegations against a supervisor in Ohio; (1) supervisor’s motion to dismiss for lack of jurisdiction is denied, the court finding that it has specific jurisdiction over supervisor since he assumed the management of a project in NJ by a NJ resident, therefore deliberately undertaking an obligation within this state and giving him reason to anticipate being subject to suit here.; (2) since complaint does not allege any affirmative age discrimination on the part of the supervisor, counts alleging causes of action under the L.A.D. are dismissed against the supervisor; and (3) since the complaint alleges that the supervisor falsely told plaintiff’s prospective employer that plaintiff had a two-year non-competition agreement with Exxon, the allegations of tortious interference with prospective economic advantage are sufficient to withstand supervisor’s motion to dismiss. [Filed Nov. 13, 1996.] TAXATION — INCOME TAXES — PREJUDGMENT INTEREST 35-7-0634 Lieberman, etc. v. U.S.A., U.S. Dist. Ct. (25 pp.) (1) Pre-judgment interest attributable to a judgment for personal injuries is received in order to compensate for the delay in the payment of non-taxable damages, but is not itself exempt from income tax under Code Section 104(a)(2) as “damages received…on account of personal injuries.” (2) Although the court agrees that attorneys’ fees were wrongly decided under the state rules, the court denies the government’s motion to recharacterize the formula for deduction of those fees by the taxpayer’s estate, and allows the deduction of attorneys’ fees allocable to the prejudgment interest. [Filed Nov. 12, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … An attorney asks the Disciplinary Review Board to push the state Supreme Court to create a mental illness exception to its stand in favor of disbarment when partners steal from each other.See page 1 of the Nov. 25 Law Journal.

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