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STATE COURT CASES

CONTRACTS — IMPLIED WARRANTY OF FITNESS

11-2-6608 Rainbow Industries, Inc. v. North Bay Apparel, Ltd., App. Div. (per curiam) (6 pp.) The panel affirms the trial judge’s $56,020 award to plaintiff on its complaint against defendant seeking money damages based on breach of contract and breach of implied warranty of fitness for defects in an order of certain custom jackets manufactured by defendant; the jackets were unfit for the purpose intended and plaintiff gave defendant prompt notice that they were unmerchantable; the defect was only discoverable when the jackets were laundered according to instructions, and the custom logos affixed came off; further, plaintiff took reasonable steps to “cover” its loss within a reasonable time by purchasing sweatshirts for its customer.

CONTRACTS — WAREHOUSES — LIMITATIONS

11-2-6609 Sweet Water Seafood Corp., etc. v. Accem Warehouse, Inc., etc., App. Div. (per curiam) (10 pp.) The court below accurately dismissed plaintiff’s complaint — for damages from defendant’s alleged improper cold storage of 1749 cases of crabmeat — because it failed to file its action within the limitations period contained in the non-negotiable warehouse receipt.

FAMILY LAW — CHILD SUPPORT

20-2-6610 Pica v. Rockwell, App. Div. (per curiam) (7 pp.) The Family Part judge justly directed plaintiff to pay seventy percent of his daughter’s college expenses, as well as a sum of $6,240 to defendant as reimbursement for college expenses he had failed to pay for a prior semester; however, the appellate court reverses and remands for reconsideration the judge’s award of a sanction of counsel fees upon plaintiff, and not his attorney, for filing frivolous motions.

FAMILY LAW — DOMESTIC VIOLENCE

20-2-6611 DeMarzo v. Puglis, App. Div. (per curiam) (8 pp.) Based on the facts of this physical argument between the parties, the decision of the trial judge that defendant was guilty of domestic violence against plaintiff cannot be reconciled with her factual finding that defendant was acting in self-defense; the judge failed to make a factual finding as to the central, disputed issue of whether plaintiff assaulted defendant with knives; defendant’s use of force under such circumstances would not be disproportionate to the threat against him, and would substantiate self-defense as a valid defense to plaintiff’s domestic violence complaint; the final restraining order is reversed.

INSURANCE — VERBAL THRESHOLD

23-2-6612 Plasencia, et ux. v. Raccioppi, App. Div. (per curiam) (10 pp.) The motion judge did not err in denying defendant’s motion for summary judgment, which was brought on the grounds that plaintiff failed to surmount the verbal threshold, where, inter alia, objective testing confirmed plaintiff’s injuries and his employment opportunities and earning capacity were substantially diminished by the injuries he sustained in this accident; moreover, the $135,000 jury verdict in plaintiff’s favor after trial was not against the weight of the evidence.

INSURANCE — VERBAL THRESHOLD

23-2-6613 Gonzalez v. Glogowski, etc., et al., App. Div. (per curiam) (3 pp.) The trial judge correctly granted summary judgment dismissing plaintiff’s complaint because plaintiff failed to satisfy the “serious impact” prong of the Oswin test; plaintiff’s alleged tingling and numbness in his hands does not prevent him from either working as a computer operator or driving, and must be viewed as nothing more than an inconvenience, and not a serious impediment to plaintiff’s daily activities.

INSURANCE — VERBAL THRESHOLD — COMPARATIVE ANALYSIS

23-2-6614 Bennett v. Lugo, etc., App. Div. (Lisa, J.A.D.) (18 pp.) The appellate panel feels that plaintiff submitted a sufficient Polk analysis to withstand summary judgment in this AICRA verbal threshold case, and, therefore, reverses the order dismissing the complaint and remands for trial. The report of plaintiff’s treating orthopedist provided sufficient reference to and analysis of the medical records pertaining to plaintiff’s prior low back injuries and surgery and compared that information with objective diagnostic tests performed after the current accident, in reaching the conclusion that the current accident was the cause of plaintiff’s herniated disc. The panel also comments on the inadequacy of the conclusory findings of the motion judge. [Approved for publication Apr. 27, 2004.]

LABOR AND EMPLOYMENT — HOSTILE WORK ENVIRONMENT

25-2-6615 I/M/O Benster, App. Div. (per curiam) (4 pp.) The Banking and Insurance Commissioner justly held that appellant violated the State’s policy prohibiting discriminatory workplace communications and dismissed his complaint alleging discrimination and creation of a hostile work environment against his supervisor, also denying a contested case plenary hearing on those subjects; the Merit System Board properly rejected appellant’s contentions that he was denied administrative due process; that his words did not constitute sexual harassment under pertinent administrative regulations or gender based derogatory or demeaning slurs under the State’s newly-promulgated anti-discrimination policy; and the policy violates due process and appellant’s First Amendment rights and is unconstitutionally vague and overbroad.

LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION

25-2-6616 Bereza v. Bd. of Review, etc., et al., App. Div. (per curiam) (6 pp.) The claimant was properly denied unemployment benefits because he left work voluntarily without good cause attributable to the work; his inability to communicate with his co-workers, who did not speak English well, and the resultant stress, which was not medically supported, did not constitute “good cause” to leave employment.

LABOR AND EMPLOYMENT — WRONGFUL TERMINATION

25-2-6617 Kuchta v. Great Gorge Resort, Inc., etc., App. Div. (per curiam) (11 pp.) The court justifiably dismissed plaintiff’s complaint alleging wrongful termination, retaliatory termination and breach of contract, since: (1) plaintiff was admittedly an at-will employee who could be terminated with or without cause, and the purported statement by the defendant’s president — that “old-timers” like plaintiff would not be laid off in a proposed downsizing — did not constitute a contractual offering or guarantee of continued employment; and (2) plaintiff’s assertion of a public policy involved in his discharge is too vague.

PUBLIC ASSISTANCE — MEDICAID

45-2-6618 M.G. v. Div. of Medical Assistance and Health Svcs., App. Div. (per curiam) (5 pp.) The appellant was correctly found ineligible for Medicaid benefits for a thirteen-month period because she transferred over $73,279 of her resources for less than fair market value during the 36-month period preceding her Medicaid application.

TELECOMMUNICATIONS — CONTRACTS — EVIDENCE

57-2-6619 Russell Electric v. Subcarrier Communications, Inc., App. Div. (per curiam) (6 pp.) The defendant is in the business of either owning or leasing land to telecommunications carriers for placement of their antennae; and plaintiff is an electrical contractor which installed equipment on two sites of defendant for one of those carriers, which later filed for bankruptcy. Plaintiff demanded payment from defendant, asserting that it had entered into a contract with defendant, and not the carrier, for the work performed at the two sites. Reviewing the trial testimony, the panel upholds the jury verdict in favor of plaintiff, and rejects the defendant’s assertion that the trial judge erred in admitting into evidence certain invoices of plaintiff sent to defendant under the business records exception to the hearsay rule.

WILLS, ESTATES AND TRUSTS — LETTERS OF ADMINISTRATION

38-2-6620 I/M/O Estate of Rogers, Deceased, App. Div. (per curiam) (6 pp.) The appellate panel reverses the Chancery Division’s order granting letters of administration to the brother of the decedent over the application of the appellant who, while no blood kin, fathered five children with her, which were ages five through seventeen at the time of her death. While the deceased’s oldest child was a minor at the time of her death, she has since reached majority and is statutorily-qualified and the first person entitled to fill the position; thus, the judge mistakenly rejected her candidacy on age grounds. A further hearing should be held to review all of the facts and circumstances including her maturity, college and other commitments, and whether she could properly act as administrator.

CRIMINAL LAW AND PROCEDURE — S.V.P.A.

14-2-6621 I/M/O Civil Commitment of R.E.S., App. Div. (per curiam) (8 pp.) On the evidence before him, the trial judge aptly found that appellant continues to be a sexually violent predator; therefore, he properly entered an order continuing appellant’s involuntary civil commitment in a secure facility for control, care and treatment.

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