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STATE COURT CASES

ATTORNEY/CLIENT — CONFLICT OF INTEREST

04-2-6535 Aisner, et ux. v. St. John & Wayne, et al., App. Div. (per curiam) (17 pp.) In an appeal implicating three of four factually-complex lawsuits arising out of the “hostile and Byzantine personal and professional relationships that surfaced in the late nineties in the UMDNJ pathology department,” the panel affirms the dismissal of the legal malpractice complaint filed by plaintiff, a physician and Director of the Anatomic Pathology Department and Professor and Vice-Chair of the said Pathology Department; although the judge found that plaintiff was a former client of the defendant law firm and entitled to the protections of the ethics rules, she then found that, despite superficial similarity, the defendant’s representation of both plaintiff and another UMDNJ employee, Fromowitz, was not substantially related to the case in which the firm later represented Fromowitz against plaintiff.

CONTRACTS — DISCOVERY SANCTIONS

11-2-6536 Marino Ins. Svcs., Inc., et al. v. Insurex, Inc., App. Div. (per curiam) (8 pp.) In this case involving alleged misrepresentation and breach in the sale and purchase of a “book” of insurance accounts between licensed insurance producers, the panel reverses the $51,000+ judgment entered in favor of plaintiffs and remands for trial, concluding that the trial judge erred in entering a judgment after striking the defendant’s answer and defenses without prejudice pursuant to R. 4:23-5(a) for failure to comply with discovery orders; the proof hearing was premature where defendant’s answer was stricken without prejudice.

CORRECTIONS — PAROLE — POLITICS

13-2-6537 Mocco v. N.J. State Parole Bd., App. Div. (per curiam) (34 pp.) The court upholds the conditions placed upon appellant’s parole by the respondent, which conditions, in essence, prohibit appellant from engaging in political activity in North Bergen; appellant’s ability to influence the municipal government there in the past was evidently instrumental in the commission of his crimes, and the imposition of such prohibition was designed to preclude him from exercising similar sway in the future, and was, therefore, not an abuse of discretion.

ENVIRONMENT — HISTORIC DESIGNATION

17-2-6538 I/M/O Historic Designation of Black Creek Site, etc., App. Div. (per curiam) (12 pp.) Over the municipality’s objection, and rejecting its contentions of procedural errors, the panel affirms the DEP Commissioner’s order mandating that the remaining four acres of the thirty-five acre Black Creek Site in Vernon Township, which has significant archeological and historical value, be listed in the N.J. Register of Historical Sites, where the other thirty-one acres of the site had previously been so designated three months earlier by the former Commissioner.

FAMILY LAW — ALIMONY

20-2-6539 Milner v. Milner, App. Div. (per curiam) (14 pp.) Although affirming the Family Part judge’s award of counsel fees to the plaintiff, the panel reverses the judge’s reduction in defendant’s alimony obligation and the denial of his application for a reduction of his life insurance obligation; although the judge found that defendant had shown a change in circumstances as a result of his diabetic retinopathy and unsuccessful surgeries on his eyes, as a result of which he was forced to substantially limit his medical practice, she erred in her calculations of defendant’s income and the resultant modification must be reconsidered on remand.

FAMILY LAW — DOMESTIC VIOLENCE

20-2-6540 State v. Hoyt, Jr., App. Div. (per curiam) (3 pp.) The trial judge accurately found that defendant had committed an act of harassment in violation of a domestic violence final restraining order held by his wife when he called her place of business, where she worked as a hygienist, and revealed to the pregnant receptionist that his wife had herpes and she should be careful; defendant knew the contents of his call would upset his wife and cause her extreme embarrassment, which it did, causing her to leave her job. [Decision dated Apr. 16, 2004.]

GOVERNMENT — CONTRACTORS

21-2-6541 Cap Services, Inc. v. Twp. of Bloomfield, App. Div. (per curiam) (13 pp.) Although rejecting some of the plaintiff — demolition contractor’s assertions of error in the judge’s evidentiary rulings, the appellate court reverses that portion of the trial judge’s order which denied plaintiff “the cost of the pumping of 26,000 gallons of heating oil-contaminated water out of the basement” of the site that defendant contracted with plaintiff to demolish, satisfied that there is sufficient credible and independent evidence in the record to support plaintiff’s claim for contractual damages for the emergency cleanup, not contemplated as part of the original contract, and for which defendant was responsible.

INSURANCE — COLLISION — MISREPRESENTATION

23-2-6542 Tsapukis v. All City Ins. Agency, et al., App. Div. (per curiam) (8 pp.) The court below justifiably awarded plaintiff collision coverage on his claim for damages to his BMW, disagreeing with the carrier-defendant that plaintiff fraudulently misrepresented his place of residence in his insurance application to obtain a lower premium; the judge found that plaintiff answered the residence question accurately because he was living at the stated address with his girlfriend when he submitted the application, and only moved to his leased diner when his girlfriend threw him out after a fight.

LABOR AND EMPLOYMENT — CIVIL RIGHTS — PROCEDURE

25-2-6543 Davis v. American Honda Motor Co., App. Div. (Kestin, P.J.A.D.) (7 pp.) Where, in an action under the L.A.D. before the Division on Civil Rights, a fact-finding conference is held, the complainant is entitled to notice and an opportunity to participate, as provided in N.J.A.C. 13:4-2.3(a)2 and -2.3(b); and a finding of no probable cause following upon a failure to apply the regulation is fatally flawed. The Division is required to premise its dispositions on a record developed in accordance with prevailing rules. [Approved for publication Apr. 19, 2004.]

LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION

25-2-6544 Faulknor v. Bd. of Review, etc., et al., App. Div. (per curiam) (4 pp.) The claimant was justly denied unemployment benefits because she was not considered “unemployed,” since she was the sole shareholder of the corporation for which she previously worked, the corporation was still in existence and had not been dissolved, and, despite claimant’s assertion that it existed only on paper and was no longer operational, she actively still sought work for the corporation.

LANDLORD/TENANT

27-2-6545 Balogh, et ux. v. Telesnick, App. Div. (per curiam) (6 pp.) The panel affirms the trial court’s judgment awarding the plaintiffs-landlords over $32,116 in additional rent due for real estate taxes and insurance, and pre- and post-judgment interest, against the defendant-tenant, who operates a landscape construction company and power equipment shop at the leased premises; the judge accurately concluded that defendant was responsible for real estate taxes as of the date the property came out of receivership and plaintiff wrote to defendant making a demand for payment of the taxes. The judge also properly denied plaintiff an award for “sewer charges,” disagreeing with plaintiff that such charges were due as part of the tenant’s obligation to pay the “utility expenses.” However, the award of attorney’s fees is reversed, since such fees were due only if the landlord re-entered and took possession of the demised premises, not if the landlord was a “prevailing party” in other litigation.

LAND USE — LIMITATIONS — ENLARGEMENT OF TIME

26-2-6546 Cohen v. Thoft, et al., App. Div. (Skillman, P.J.A.D.) (14 pp.) A trial court may enlarge the time for bringing an action in lieu of prerogative writs in the interest of justice even though the action does not involve an important and novel constitutional question, an informal or ex parte determination by an administrative official, or important public rather than private interests. [Approved for publication Apr. 19, 2004.]

NEGLIGENCE — MEDICAL PERSONNEL — IMMUNITY

31-2-6547 Lauder, etc., et al. v. Teaneck Volunteer Ambulance Corps, et al., App. Div. (Parker, J.A.D.) (15 pp.) (1) The statutory immunity granted to medical personnel “in the rendering of advanced life support services” do not apply to negligent conduct occurring before or after the rendering of the advanced life support services. (2) A hospital employer of medical personnel may be held vicariously liable for its employee’s negligent conduct occurring before or after the rendering of advanced life support services. (3) A motion to dismiss at trial pursuant to R. 4:37-2(b) may be made before plaintiff presents his case, but shall not be granted unless it is clear at the outset that a jury could not find in favor of plaintiff. If, giving plaintiff all of the favorable inferences, a jury could reasonably find in favor of plaintiff, the trial judge shall reserve decision at least until plaintiff has presented his case. (4) To overcome the statutory immunity granted to volunteer ambulance squads and their members, a plaintiff must demonstrate an absence of good faith or intentional conduct. (5) The doctrine of res ipsa loquitur is not available to a plaintiff alleging product liability. Where the allegedly defective product involves a complex instrumentality, expert testimony is required to assist the fact finder in determining whether the alleged defect existed when the product was in the control of the manufacturer and to negate other causes for the accident for which the manufacturer is not responsible. [Approved for publication Apr. 19, 2004.]

FEDERAL COURT CASES

LABOR AND EMPLOYMENT — FAMILY LEAVE

25-8-6548 Conoshenti v. PSE&G Co., Third Cir. (Stapleton, C.J.) (19 pp.) The circuit panel reverses the District Court’s judgment granting summary judgment in favor of defendant on plaintiff’s claim that defendant violated the Family and Medical Leave Act of 1993 and remands for further proceedings; it affirms, however, the District Court’s judgment with respect to plaintiff’s Pierce and L.A.D. claims. [Filed Apr. 13, 2004.][Precedential.]

CRIMINAL LAW AND PROCEDURE — PLEA CHALLENGES — STANDARD OF REVIEW

14-8-6549 U.S.A. v. Rivera, Third Cir. (Oberdorfer, U.S.D.J.) (6 pp. — including dissent by Chertoff, C.J.) The court denies the Government’s petition for rehearing en banc, holding that de novo review is appropriate in this case because of the precedents in U.S. v. Queensborough and U.S. v. Moschalaidis; while U.S. v. Thornton employed a plain error standard, it never acknowledged the other precedents or indicated why it broke from them; the court concludes that defendant, albeit inartfully, effectively preserved the right to de novo review of his claim — that his plea agreement was breached — below. [Filed Apr. 15, 2004.][Precedential.]

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