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STATE COURT CASES ATTORNEY/CLIENT� –� DAMAGES 04-2-0534� Pavese, et al. v. Bogart, et al., App. Div. (per curiam) (4 pp.)� Plaintiff’s legal malpractice case — arising from defendants’ failure to inform plaintiff-real estate purchasers of the presence of an easement across the property — was properly dismissed for lack of proof as to damages; the trial judge did not abuse his discretion in failing to adjourn the trial where prior counsel had basically conceded, encouraged, or at least acquiesced in the dismissal upon his failure to procure an expert. CIVIL PROCEDURE� –� SERVICE 07-2-0535� Cop v. Phillips, App. Div. (per curiam) (5 pp.)� Since there are material factual disputes surrounding effective service of the complaint upon defendant prior to the entry of the default judgment, the panel does not disturb the motion judge’s denial of the motion to quash; on the other hand, as to the denial of the motion to vacate the default judgment, the panel reverses for a plenary hearing to resolve the factual disputes concerning the service issue. CORRECTIONS� –� SECURITY THREAT GROUP MANAGEMENT UNIT PROGRAM 13-2-0536� Figueroa v. N.J. Dept. of Corrections, App. Div. (per curiam) (3 pp.)� The court rejects inmate’s challenge to his placement in a security threat group management unit; even though the Department did not specifically comply with the Administrative Procedures Act when it issued and acted upon the policy statement for the management of security threat groups, and the inmate was transferred to the STGMU before the rules became effective, this defect was rendered moot by the Department’s adoption of the STGMU program rules. 13-2-0537� Hafiz v. N.J. Dept. of Corrections, App. Div. (per curiam) (3 pp.)� The court rejects inmate’s challenge to his placement in a security threat group management unit; even though the Department did not specifically comply with the Administrative Procedures Act when it issued and acted upon the policy statement for the management of security threat groups, and the inmate was transferred to the STGMU before the rules became effective, this defect was rendered moot by the Department’s adoption of the STGMU program rules. DEBTOR/CREDITOR� –� DAMAGES 15-1-0538� MetLife Capital Financial Corp. v. Washington Ave. Assoc., Supreme Ct. (Garibaldi, J.) (32 pp.)� In the commercial loan between the parties, the five percent late charge assessed against each delinquent payment, and the 12.55% default rate of interest, both set by the trial court, constituted reasonable stipulated damages provisions for defendant’s default on the commercial mortgage. DEBTOR/CREDITOR� –� FINDINGS 15-2-0539� Citicorp Mortgage, Inc. v. Hedlund, et ux., App. Div. (per curiam) (3 pp.)� While it is clear from the documentary submissions that at least one defendant is indebted to the plaintiff, it cannot be discerned what is owed on which account — either the personal unsecured loan or the “checking plus” credit line –� and remand is required for further findings. DEBTOR/CREDITOR� –� FORECLOSURE 15-2-0540� Cameron, et ux. v. Bank One, et al., App. Div. (per curiam) (7 pp.)� As far as the panel can tell, the discovery violations in this “rather bizarre” foreclosure action — for which the bank has been saddled with a default judgment of almost a quarter of a million dollars — seem all to have occurred as a result of the inaction, intentional or otherwise, on the part of its attorney; while the court could affirm the default judgment and leave the bank to whatever recourse it might have against the attorney in a malpractice action, it finds several troublesome aspects in the case and, instead, remands for further proceedings. FAMILY LAW� –� ALIMONY 20-2-0541� Medici v. Medici, App. Div. (per curiam) (4 pp.)� The trial court’s findings — regarding defendant’s limited employment opportunities in Italy in view of her age, education, and lack of work experience — are adequately supported by the record and justify its decision to award defendant solely permanent alimony, rather than a combination of permanent and rehabilitative alimony; further, in light of the findings on the reasonableness of defendant’s claimed living expenses, the judge properly reduced the monthly alimony award. FAMILY LAW� –� DOMESTIC VIOLENCE 20-2-0542� Padilla v. Santiago, App. Div. (per curiam) (3 pp.)� The judge properly credited defendant’s corroborated testimony that he was elsewhere on the morning of the alleged threats to plaintiff, and the panel affirms the judge’s dismissal of plaintiff’s harassment complaint. FAMILY LAW� –� EDUCATION 20-2-0543� , App. Div. (Collester, J.A.D.) (14 pp.)� In a dispute over which school district the parties’ daughter should attend in this joint custody situation, although the panel agrees with the trial judge’s conclusion that the parties’ daughter should continue to attend school in South Orange through the fifth grade, it reverses, as an abuse of discretion, the judge’s decision in directing that the child be enrolled in the Madison school system from the sixth through the twelfth grades.� [Approved for publication June 30, 1999.] INSURANCE� –� P.I.P. 23-2-0544� USAA Casualty Ins. Co. v. Waste Management of Central Jersey, Inc., et al., App. Div. (per curiam) (3 pp.)� Because plaintiff insurer became aware of the essential factual basis of its claim against defendants more than two years before filing its complaint for PIP reimbursement, the discovery rule is clearly inapplicable and there is no equitable basis for tolling the running of the limitations period. LABOR AND EMPLOYMENT� –� UNEMPLOYMENT COMPENSATION 25-2-0545� Harden v. Bd. of Review, App. Div. (per curiam) (3 pp.)� Although it may be that claimant was unfairly and wrongly discharged from her job, this has no impact upon her application for workforce development partnership program extended benefits; since there was no finding of substantial reduction in work opportunities at the claimant’s worksite, she was properly denied those benefits. 25-2-0546� Morris v. Bd. of Review, App. Div. (per curiam) (4 pp.)� Claimant was correctly denied unemployment benefits because he was terminated for misconduct, when he disobeyed company policy, and took over for a fellow employee/cashier without closing out that employee’s cash drawer; the Board did not accept claimant’s testimony that the policy was enforced in a lax manner, or that his conduct constituted merely an “error of judgment.” LANDLORD/TENANT� –� WARRANTY OF HABITABILITY� –� LEAD PAINT 27-2-0547� , App. Div. (Skillman, J.A.D.) (20 pp. — including concurring opinion by Lesemann, J.S.C.)� Rejecting a strict and absolute liability concept, the panel finds that the trial court correctly instructed the jury that a landlord can only be held liable for an infant tenant’s personal injuries caused by exposure to lead paint in the landlord’s premises if he knew or should have known of the presence of the lead paint.� [Approved for publication June 30, 1999.] LAND USE 26-2-0548� Affiliated Bldg. Corp. v. Twp. of East Brunswick, et al., App. Div. (per curiam) (31 pp.) The panel affirms Law Division’s order in favor of the municipal defendants on plaintiff’s appeal of penalties imposed with respect to plaintiff’s application for final subdivision approval of its project, finding, inter alia, that: (1) the fine was not ultra vires and void, violative of the MLUL or imposed and collected contrary to the plaintiff’s due process rights; (2) plaintiff did not present a legitimate claim for relief based on inverse condemnation and violation of its civil rights; and (3) plaintiff was not entitled to additional discovery before the condemnation claim could be dismissed.� The panel reverses order assessing penalties under the State Uniform Construction Code against the contractor. LAND USE� –� CELLULAR TOWERS 26-1-0549� , Supreme Ct. (Pollock, J.) (31 pp. — including dissent by O’Hern, J.)� Comcast has satisfied the positive and negative criteria of N.J.S.A. 40:55D-70d; and the public benefit outweighs the slight impact on the industrial zone.� The record establishes that Comcast is entitled both to the use variance and the bulk variance it seeks to construct a monopole for cellular communications, and the Borough’s denial of the request was arbitrary and capricious.� [Companion case to 27-1-0550 below.] 26-1-0550� , Supreme Ct. (Pollock, J.) (8 pp.) This matter must be remanded to the Board so that Comcast and other interested parties may offer expert testimony concerning the negative criteria respecting its request for a use variance for construction of a telecommunications monopole.� [Companion case to 27-1-0549 above.] WORKERS’ COMPENSATION� –� RETROACTIVITY 39-2-0551� , App. Div. (Carchman, J.A.D.) (16 pp.)� Addressing the “most difficult” issue of retroactivity of a judgment of the Chancery Division declaring that a workers’ compensation lien established pursuant to N.J.S.A. 34:15-40 shall not include a respondent’s portion of a petitioner’s attorney and expert fees, an employer or insurer’s expenses for a defense medical examination, or rehabilitative nursing services unless such nursing services “primarily benefitted the employee and were reasonably necessary to the injured employee’s recovery,” the court, with one exception, affirms the judge’s determination limiting the retroactivity of the judgments, as an appropriate application of the factors enunciated by the Supreme Court in Coons v. American Honda Motor Co.� [Approved for publication June 30, 1999.] CRIMINAL LAW AND PROCEDURE� –� IDENTIFICATION 14-2-0552� , App. Div. (Skillman, J.A.D.) (26 pp.)� In a case in which identification is a critical issue, a trial court may properly discharge its responsibility to inform the jury of the dangers of unreliable eyewitness identification testimony by giving the form of special identification instructions approved in State v. Green.� It is not required to supplement that instruction by summarizing or commenting upon inconsistencies or other weaknesses in the State’s identification testimony.� [Approved for publication June 30, 1999.] CRIMINAL LAW AND PROCEDURE� –� P.T.I. 14-2-0553� , App. Div. (Skillman, J.A.D.) (44 pp. — including dissent by Lesemann, J.S.C.)� In case where defendant committed welfare fraud for over three years — fraudulently obtaining benefits, food stamps and Medicaid over the entire period he attended medical school by filing a series of applications for benefits which failed to disclose that he was receiving a substantial amount of money from scholarships and from the University for living expenses, the court reverses the Law Division’s order directing defendant’s admission into the PTI program over the prosecutor’s objection; the conduct constitutes a “continuing criminal business or enterprise” within the intent of PTI Guideline 3(i)(2), and defendant was required to present facts demonstrating his amenability to the rehabilitative process.� While the dissent concludes that there is a compelling reason to admit defendant into PTI because denial of his application will prevent him from becoming a doctor, it is not the judiciary’s responsibility to determine whether a person charged with a serious criminal offense has the moral character to practice medicine.� Despite the impressiveness of defendant’s educational achievements, the charge that he engaged in a long-term scheme of welfare fraud warrants careful scrutiny by the credentials committee.� Defendant should not be allowed to use PTI as a means to circumvent this statutorily-mandated process for review of the qualifications of an applicant for a medical license.� [Approved for publication June 30, 1999.]

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