Ford Flower Hasbrouck & Loefflad 

Attorneys at Law

Published Opinions

 

Casino Reinvest Development Authority v. Katz,

Actions were brought to condemn income producing property. Landowners moved for dismissal. The Superior Court, Atlantic County, Law Division, Winkelstein, A.J.S.C., held as a matter of first impression that the condemning authority's failure to use the actual rents from the property in arriving at fair market value was a failure to negotiate in good faith and warranted dismissal.  Dismissed.



Matter of Stoeco Development, Ltd.,

Applicant for permit to discharge fill materials into navigable waters sought judicial review of determination by the Department of Environmental Protection and Energy (NJDEPE) that applicant's activities were inconsistent with the state's coastal zone management program. The Superior Court, Appellate Division, Baime, J.A.D., held that: (1) applicant was not required to exhaust its administrative remedies before seeking judicial review, but (2) final resolution of pending federal litigation would be wholly dispositive of state issues raised.
Dismissed.

 

 

Citicorp Mortg. Co., Inc. v. Klauder and Nunno Enterprises, Inc.,

Mortgagee that provided financing for purchase of condominium unit brought action against contractor seeking discharge of construction contract recorded against property. The Superior Court, Chancery Division, Cape May County, ordered discharge, and contractor appealed. The Superior Court, Appellate Division, Shebell, J.A.D., held that: (1) filing of construction contract against property was not by itself sufficient to perfect mechanic's lien, and (2) mortgagee was entitled to discharge of contract.   Affirmed.

 

 

Kaplan v. City of Linwood,

Lot owner appealed planning board's decision denying application for minor subdivision of lot lying in two different zones. The Superior Court, Law Division-Civil, Atlantic County, Winkelstein, J.S.C., held that: (1) board's decision not to include portion of lot located within conservation zone to determine bulk requirements was arbitrary and unreasonable, and 2) satisfaction of bulk requirements did not require automatic approval of minor subdivision.

 

 

DiDonato v. Wildwood Mun. Body Corporate and Politic,

Developer of five-story, 80-unit condominium within a coastal zone, whose application for a construction permit was denied by the Department of Environmental Protection, filed an action in lieu of prerogative writs. The Superior Court, Law Division, Cape May County, entered a judgment declaring that developer's application was automatically approved for failure of the Department to notify developer of the denial of his application within 90 days, and the Department appealed. The Superior Court, Appellate Division, Petrella, J.A.D., held that under both the Coastal Areas Facility Review Act and the "90-Day Act," word "act" as used in such statutes was synonymous with action of the Department in making a determination on the merits of an application for a construction permit, such as approving, approving on condition, or disapproving the application, so that failure of the Department to notify developer of its action in disapproving developer's application within 90 days did not result in automatic approval of developer's application.   Reversed and remanded.

 

 

Fravega v. Security Sav. and Loan Ass'n,

On motion of defendants to discharge notices of lis pendens filed by plaintiffs concurrently with their suit to set aside certain conveyances of real estate, the Superior Court, Chancery Division, Gibson, J.S.C., held that: (1) in regard to statute requiring plaintiff to show that there is a "probability that final judgment will be entered in favor of plaintiff sufficient to justify the filing or the continuation of the notice of lis pendens," the legislature has chosen a standard which, though couched in terms of probability instead of possibility, requires court to weigh the strength of plaintiff's case against the detriment imposed on defendant by reason of the filing of the notice of lis pendens, and (2) weighing the detrimental impact of continued filing of notices of lis pendens on defendants against the relative weakness in plaintiffs' varying claims and considering the unlikelihood of rescission, the balance to be struck favored discharge of the notices.  Motion granted.

 

Schwartz v. Grunwald

Action was brought to set aside conveyance of realty. Purchaser moved to dismiss on ground that notice of lis pendens was not constructive notice to him of suit between instant plaintiff and the vendor. The Superior Court, Chancery Division, Haines, J. S. C., held that: (1) lis pendens statute authorizes filing of notices of lis pendens by both plaintiffs and defendants counterclaimants, and (2) notice of lis pendens, as filed by defendant counterclaimant, was premature prior to filing of counterclaim and filing was ineffectual notwithstanding subsequent filing of the counterclaim.  Judgment accordingly.

 

 

Matter of Kampelman

Trustees of Clients' Security Fund of the Bar of New Jersey sought an order directing reimbursement from custodial receiver, who had been appointed to take possession of property of attorney. The Superior Court, Chancery Division, Ciolino, J. S. C., held that advance of money by the Trustees of the Clients' Security Fund of the Bar of New Jersey to a custodial receiver appointed to take possession of property of an attorney is an administrative "expense" of receivership and as such is entitled to priority of distribution.
Order accordingly.

 

 

Arabia v. Zisman

Suit was brought to have a city ordinance relating to placing of beach chairs on public beachfront declared null and void. The Superior Court, Chancery Division, 143 N.J.Super. 168, 362 A.2d 1221, held the ordinance invalid but denied recovery of monies paid abutting owners under agreements entered into under the ordinance, and plaintiffs appealed. The Superior Court, Appellate Division, affirmed on the trial court's opinion and denied counsel fees on appeal.  Affirmed.

 

 

Glenn v. Seaview Country Club

Representatives and/or beneficiaries of the estate of certain deceased stockholders of defendant corporation brought suit seeking an order compelling defendant to transfer those shares of stock registered in decedents' names either to the executors and/or trustee of the estate or the beneficiaries of the testamentary transfer of the stock made by decedents. The Superior Court, Chancery Division, Gruccio, J. S. C., held that any attempt to validly place a restriction upon the testamentary disposition of stock, as to which a provision in the certificate of incorporation, bylaws or written agreement among shareholders creates a right of first refusal or other restriction, must be couched in language which clearly and explicitly makes the restriction applicable to disposition by wills; accordingly, in the instant case in which the language consistently used in the creation of the restriction referred to a "sale" to a third party, the intent, wording and legal effect of the provision restricting the transfer of the stock made it applicable only when the stock was to be "sold" to a third party, and the right of first refusal did not apply to testamentary transfers.  Judgment for plaintiffs.

 

Franklin v. Milner

In medical malpractice case, defendant demanded copy of letter sent to plaintiff's attorney from physician engaged by plaintiff as expert witness. Plaintiff resisted on the grounds that contents of letter, in which witness set down his impressions of strategy and tactics applicable to trial of the case, constituted privileged work product. The Superior Court, Law Division, Miller, J.C.C., temporarily assigned, held that even though the contents of the letter were definitely work product within the meaning of the rule granting a privilege with regard to such matter for an attorney or a representative of a party, the motion would be granted since an expert witness is not a representative of a party.  So ordered.

 

 

Corleto v. Shore Memorial Hospital,

Medical malpractice suit was brought against doctor who performed abdominal surgery on plaintiffs' decedent. In addition, claim was made against the hospital, and its administrator, board of directors and medical staff on ground that they knew or should have known that the doctor was not competent to perform the surgical procedure and that such defendants not only allowed him to perform the surgical procedure but also allowed him to remain on the case when the situation was obviously beyond his control. The latter defendants moved to dismiss the complaint for failure to state a claim on which relief could be granted. The Superior Court, Law Division, Atlantic County, Manuel H. Greenberg, J.C.C., temporarily assigned, held that hospital has a duty to a patient not to admit an incompetent to surgical privileges and to remove a member of its staff where the situation has gone beyond his control and competence, that whether hospital was immune from suit was a matter properly addressed to the Legislature and that hospital's medical staff, which was a group of 141 doctors, was amenable to suit as an unincorporated association.  Motion denied.

 

Bank of New York v. Raftogianis,

Trustee of securitized trust brought action to foreclose mortgage on beachfront property in Brigantine, NJ.  The Superior Court of New Jersey, Chancery Division, Atlantic County, Todd PJCh. held as a matter of first impression that a lender’s assignee must establish its status as holder of mortgage, through negotiation and delivery of promissory note, on the date foreclosure action was filed.  Plaintiff’s failure to present such proof resulted in dismissal of foreclosure complaint.

 

Auto Lender’s Acceptance Corporation v. Gentilini Ford,

Automobile dealership whose finance manager falsified documentation in order to qualify customers for financing, filed action against its insurance carrier under a policy insuring against “employee dishonesty.”  In a matter of first impression, the New Jersey Supreme Court held that (1) if employee’s actions were the “proximate cause” of insured’s loss, policy’s requirement of “direct loss” was satisfied; and (2) each falsified credit application represented a separate insured event subject to the limits of coverage.