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STATE COURT CASES ATTORNEY/CLIENT — DEFAULT JUDGMENT 04-2-3476 Robertson v. Bell, et al., App. Div. (per curiam) (8 pp.) Defendant/client has failed to demonstrate that his inattention throughout this fee litigation justifies relief from the default judgment entered against him. Inter alia, although he ultimately served answers to interrogatories, it was after the return date of the first motion to strike and suppress; thereafter he failed to respond to plaintiff’s second motion to strike with prejudice, or to plaintiff’s two motions for final judgment. Nor has defendant persuaded the panel that equity dictates setting aside the judgment under R. 4:50-1(f). The final judgment is ordered reopened for the sole purpose of permitting a redetermination of interest. ATTORNEY/CLIENT — PROTECTION LETTERS 04-2-3477 Ladenheim, M.D. v. Klein, Esq., App. Div. (Lefelt, J.S.C., t/a) (7 pp.) The court reverses trial judge’s determination that defendant attorney had no liability to plaintiff doctor for medical services rendered to the defendant’s client; the appellate court finds that the attorney’s letter of protection to the doctor created an equitable lien in favor of the doctor for his medical treatment fees. [Approved for publication Apr. 19, 2000.] CIVIL PROCEDURE — DISMISSALS 07-2-3478 Quest Intl. Flavors Co., etc. v. Adron, Inc., et al., App. Div. (per curiam) (9 pp.) In this environmental cleanup dispute, the panel finds that while defendant’s actions — or inactions — may well have contributed to delay in the litigation and warranted criticism and perhaps sanctions, the dismissal of defendant’s counterclaim was an unduly harsh sanction; while it may have been guilty of a lack of candor with the court or poor judgment regarding its financial difficulties and problems obtaining new counsel, those characterizations do not preclude a finding of mistake or excusable neglect. Further, there is no sign that any significant prejudice was visited on anyone due to that failure to communicate. CORRECTIONS — DISCIPLINE 13-2-3479 Cruz v. N.J. Dept. of Corrections, App. Div. (per curiam) (3 pp.) The court vacates the revocation of inmate’s reduced custody status, which revocation had been based on his refusal to participate in the Nu Way Drug and Alcohol Rehabilitation Program; the inmate had objected to participation because the program’s references to a higher power would conflict with his personal religious beliefs. The court notes that there now also exists a similar rehabilitation program in the DOC called Proactive, which makes no reference to religion, God or a higher being; remand is ordered for reconsideration of whether the inmate has been afforded the opportunity to participate in Proactive. CORRECTIONS — PAROLE 13-2-3480 Moye v. N.J. State Parole Bd., App. Div. (per curiam) (2 pp.) The denial of parole to petitioner and the imposition of a 36-month FET is remanded, since there is the possibility, as inmate contends, that the criminal record which undergirded the parole board’s determination was not that of this inmate (Jr.), but rather that of his father, who has the same name (Sr.). CORRECTIONS — SECURITY THREAT GROUP MANAGEMENT 13-2-3481 Miller v. N.J. Dept. of Corrections, App. Div. (per curiam) (4 pp.) Prisoner’s assignment to a Security Threat Group is affirmed, since it was based on sufficient credible evidence and was not an abuse of discretion; the prisoner’s challenges to the legality of the STGMU program were addressed and rejected in Blyther. 13-2-3482 Jackson v. N.J. State Dept. of Corrections, App. Div. (per curiam) (2 pp.) Inmate was appropriately assigned to a STGMU based upon his status as a core member of the Five Percent Nation; the court rejects his contentions that the STGMU violates his constitutional liberty interest; that the evidence is insufficient to support his placement therein; and that requiring to sign a letter of intention not to associate with any security threat group improperly required him to admit guilt of an association he denies. DEBTOR/CREDITOR — FORECLOSURE — PRIORITIES 15-4-3483 United National Bank, etc. v. Parish, etc., et al., Chancery Div. (Fisher, P.J.Ch.) (9 pp.) The court rejects first mortgagee plaintiff’s request for disgorgement of rents that defendant — second mortgagee — obtained after taking possession of the mortgaged premises, but before plaintiff affirmatively asserted its rights. Because the priority a first mortgagee otherwise enjoys does not apply to income and profits due the mortgaged property, defendant may retain the rents it collected before plaintiff filed its foreclosure action and asserted its priority rights, which still apply to future rents and profits. [Decision dated Dec. 3, 1999; Approved for publication Apr. 19, 2000.] ENVIRONMENT — SOLID WASTE 17-2-3484 I/M/O…Petition of…Mansfield, etc., App. Div. (per curiam) (3 pp.) The DEP justifiably denied Burlington County’s petition seeking a reduction in the $1.53 per ton community host benefit payable to Mansfield Township, which the DEP had established in a final decision; the court rejects the County’s contention that the invalidation of the state’s solid waste regulations in Atlantic Coast created a serious threat to the economic viability of its landfill, which would be magnified by requiring users of the facility to pay a substantial surcharge upon the tipping fee. The costs of hosting a landfill remain the same for the municipality, no matter how the bottom line fluctuates at the facility. 17-2-3485 I/M/O…Petition of…Mansfield, etc., App. Div. (per curiam) (16 pp.) The panel affirms the final decision of the DEP which established a host community benefit of $1.53 per ton, payable to Mansfield Township in accordance with N.J.S.A. 13:1E-28(a) for the solid waste disposed in a County landfill located partially in that municipality. FAMILY LAW — SETTLEMENTS 20-2-3486 D’Altilio v. D’Altilio, App. Div. (per curiam) (8 pp.) Family Part judge appropriately granted defendant’s motion seeking to enforce a settlement agreement memorialized in a previously entered post-divorce judgment order. The court rejects plaintiff’s argument that he acted precipitously in agreeing to the financial terms of the agreement and finds that he has not made a prima facie showing of changed circumstances to justify a plenary hearing on a modification request. INSURANCE — VERBAL THRESHOLD — TORT CLAIMS ACT 23-2-3487 Battaglia v. Bowker, et al., App. Div. (per curiam) (4 pp.) Judge properly determined that plaintiff had not succeeded in overcoming the dual verbal thresholds in Title 59 (with respect to the municipal rescue squad defendants) and Title 39 (with respect to the individual ambulance driver) because his limitations, although sometimes “irksome,” could not be considered “substantial” within the meaning of Brooks v. Odom, or to have had a serious impact on his life within the meaning of the No-Fault Act. LABOR AND EMPLOYMENT — AGE DISCRIMINATION — IMPLIED CONTRACT 25-2-3488 Reynolds v. The Palnut Co., et al., App. Div. (Kimmelman, J.A.D.) (11 pp.) (1) Dismissal of plaintiff’s age discrimination claim is affirmed; although he made out a prima facie case of such discrimination, he could not prove that the employer’s proffered reasons for the termination were pretextual. (2) Dismissal is reversed, however, of plaintiff’s claim for breach of an implied contract, whereby warnings were allegedly required to be given before termination; a sufficient factual issue that such a policy existed was presented by plaintiff’s evidence. [Approved for publication Apr. 19, 2000.] PHYSICIAN/PATIENT — AFFIDAVIT OF MERIT 29-2-3489 Solano v. Kulkarni, M.D., App. Div. (per curiam) (4 pp.) Plaintiff’s medical malpractice case was aptly dismissed based on her failure to file an affidavit of merit; the motion judge did not err when he failed to conduct a hearing on whether the dismissal should be without prejudice. REAL ESTATE — IMPLIED WARRANTIES 34-2-3490 Chavanna, et ux. v. Gianni, et ux., App. Div. (per curiam) (28 pp.) The appellate judges reverse judgment against lake bungalow sellers which had been based on a finding that the sellers were guilty of fraud and had breached implied warranties relating to the water and septic systems serving the property; there was no evidence of fraud, and the trial judge erred in invalidating the express limiting provisions in the contract which provided for the merger of any such warranties into the deed at closing, and that no such warranties would survive closing. WRONGFUL DEATH — LIMITATIONS — FICTITIOUS PARTIES 40-2-3491 Estate of Vida, etc. v. City of Garfield, et al., App. Div. (Cuff, J.A.D.) (7 pp.) The panel reverses the limitations-based dismissal of this wrongful death action against the substituted John Doe defendant — manufacturer and distributor of the pepper spray which purportedly killed plaintiff’s decedent — finding that the circumstances of this case warrant application of the doctrine of substantial compliance and require reversal of the order dismissing the complaint. Inter alia, the defendant had received actual notice of the complaint before expiration of the statute of limitations, and could not claim prejudice. [Approved for publication Apr. 19, 2000.] FEDERAL COURT CASES IMMIGRATION — ATTORNEY’S FEES 51-7-3492 Kiareldeen v. Reno, etc., et al., U.S. Dist. Ct. (Walls, U.S.D.J.) (13 pp.) In this case the court previously issued a writ of habeas corpus directing petitioner’s release based on the government’s use of secret evidence submitted ex parte and in camera to detain petitioner, and the constitutional infirmity of the government’s reliance on uncorroborated hearsay documents to support the detention. The court now concludes that no reasonable person could deny that the lawsuits, both administrative and judicial, materially contributed to the government’s decision to abandon its appeals and accede to their repeated determinations that petitioner should be released; petitioner was thus a prevailing party in those proceedings. Further, the government continues to assert litigation positions that the court finds almost foundationless in the environment of factual reality and decisional precedent; therefore it has not shown substantial justification for its actions. Accordingly, the court examines the hours involved and fees requested, and awards petitioner $110,743.06 for counsel fees and costs. [Filed Apr. ?, 2000.][For publication.] JURISDICTION — MENTAL HEALTH HOUSING 24-7-3493 N.A.M.I., et al. v. Essex Cy. Bd. of Freeholders, et al., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (15 pp.) The court dismisses, for lack of subject matter jurisdiction, this suit brought by plaintiffs — members of the National Alliance of Mentally Ill of Essex (County), and several citizens, residents of Essex County and taxpayers, one of whom has an adult mentally ill child — seeking to restrain defendants from relocating patients from the present Essex County Hospital Center to the former United Hospital campus in Newark. Dismissal is granted because: (1) the case fails to present an actual case or controversy, since (a) the action, based on a plan in its infancy, is not ripe for adjudication; and (b) plaintiffs do not have standing to bring this action; (2) neither enforceable rights and duties nor a private right of action are created by the Restatement of Bill of Rights for Mental Health Patients; and (3) plaintiffs’ ADA claims are infirm because plaintiffs do not have standing to assert the rights of ECHC’s patients and no claim is stated under the ADA. [Filed Apr. 11, 2000.][For publication.] CRIMINAL LAW AND PROCEDURE — EMBEZZLEMENT — E.R.I.S.A. 14-8-3494 U.S.A. v. Helbling, Third Cir. (Rendell, C.J.) (29 pp.) The court affirms defendant’s conviction and sentence, after the jury found that he had embezzled funds from an ERISA profit sharing plan to pay the operating expenses of three failing companies he owned, and engaged two lawyers to help him by creating false documents indicating that the withdrawals had been part of a lawful ESOP conversion. Inter alia, the court holds that: (1) the District Court did not err by upholding the validity of defendant’s waiver of the statute of limitations; (2) the evidence was sufficient to support all the counts of the conviction; and (3) defendant’s offense level was appropriately increased under the sentencing guidelines for his role in the crime, for obstruction of justice, and for the extreme psychological damage to his victims. [Filed Mar. 14, 2000.] CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW — NOTIFICATION 14-7-3495 Paul P., et al. v. Farmer, Jr., etc., et al., U.S. Dist. Ct. (Irenas, U.S.D.J.) (16 pp.) While directing defendants to redraft the Attorney General Guidelines to reasonably limit Megan’s Law disclosure to those entitled to it, the court issued an injunction against further notifications until complying regulations were promulgated. The court now vacates that injunction, finding that the Attorney General has devised a reasonable method of distributing sex offender information to authorized persons, while avoiding disclosure to unauthorized persons; although the plaintiffs challenge the revised regulations, the court finds that they pass constitutional muster. The mandate to defendants was not to create a perfect system, but one reasonably calculated to get the information to those with a particular need for it while avoiding disclosure to those who have no similar need; the revised guidelines meet this standard. [Undated.][For publication.] ADMINISTRATIVE LAW DECISIONS CONSUMER PROTECTION — LEMON LAW 01-CMA-3496 Smith v. Mitsubishi Motor Sales of America, Inc., OAL (Bruno, A.L.J.) (9 pp.) The ALJ orders full Lemon Law relief for the defective air conditioner in petitioner’s 1998 Mitsubishi Eclipse GS, finding no evidence to support the respondent’s contention that it was petitioner’s installation of an alarm system which caused the air conditioning compressor and system to fail. [Initial decision dated Dec. 28, 1999.] EDUCATION — TENURE RIGHTS 01-EDU-3497 Reinertsen v. East Brunswick Bd. of Education, OAL (Reback, A.L.J.) (9 pp.) In this case it had been previously held that, although petitioner did not have tenure as a head custodian as he claimed, he reamined tenured as a custodian; it was further ordered that respondent could not reduce petitioner’s salary without complying with the due process requirements of the tenure statute. This dispute involves a disagreement in the interpretation of the latter salary aspect of the decision. The judge holds that N.J.S.A. 18A:17-3 protects petitioner in that his salary can never be reduced below the amount he would have been paid if he had not been relieved of his head custodian position in 1997; however, the scope of the tenure statute does not extend to protect future salary expectancy. [Initial decision dated Feb. 10, 2000.] HEALTH — CERTIFICATION 01-HLT-3498 B.J. v. Dept. of Health and Senior Svcs., OAL (LaFiandra, A.L.J.) (4 pp.) The court upholds the determination of respondent to deny petitioner certification as a nurse’s aide, based upon her falsely stating in her application that she had never been convicted of a crime; petitioner’s testimony that she was unaware of the conviction which the respondent’s background check revealed is completely lacking in credibility. [Initial decision dated Mar. 15, 2000.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-3499 Daniels v. N.J. State Prison, etc., OAL (Bruno, A.L.J.) (7 pp.) The ALJ finds that female petitioner — a senior corrections officer — had to leave the prison before the end of her shift because of an “emergency situation” — to attend to the onset of monthly normal, healthy feminine needs and because the prison did not provide adequate facilities therefor. The supporting documentation she submitted in connection with that emergency leave should have sufficed to approve her leave, in that menstruation is not an “illness” and she could not provide a doctor’s note or excuse for her leave. Based upon the totality of the circumstances, petitioner did not fail or excessively delay in carrying out an order, and the ALJ reverses the disciplinary charge and penalty imposed, and orders that back pay, benefits and seniority, together with interest and counsel fees, be awarded. [Initial decision dated Feb. 25, 2000.] SPECIAL EDUCATION 01-EDS-3500 State Operated School Dist. of…Newark v. P.S., etc., OAL (Vena, A.L.J.) (7 pp.) The judge concludes that the petitioner has established by a fair preponderance of the evidence that an evaluation of the fifteen-year old seventh-grade student for potential disabilities is necessary based on classroom assessments and observations, and despite the lack of parental consent. [Final decision dated Mar. 21, 2000.]

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