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STATE COURT CASES ADMINISTRATIVE LAW/PROCEDURE — AGRICULTURAL DEVELOPMENT 01 2 1001 Twp. of So. Brunswick v. State Agriculture Dev. Committee, et al., App. Div. (Collester, J.A.D.) (11 pp.) The panel holds that an applicant may appeal from a determination of the county agricultural development board certifying a proposed tract as an agricultural development area (ADA) directly to the State Development Committee for certification, which constitutes final administrative action. Further, it holds that the State Development Committee may not add or subtract land from the county approved ADA proposal, but may only certify a decline to certify the county proposal. [Approved for publication Jun. 27, 2002.] ADMINISTRATIVE LAW AND PROCEDURE — GUN PERMITS 01 2 1002 I/M/O Purchaser Identification Card Issued to Whitney, App. Div. (per curiam) (5 pp.) In granting the State’s application to revoke appellant’s firearms purchaser identification card, the judge did not err in his identification of the appellant as an “habitual drunkard” under N.J.S.A. 2C:58 3c(3) or in concluding that issuance of the card was not in the interest of the public health, safety or welfare pursuant to N.J.S.A. 2C:58 3c(5). Appellant’s four DWI convictions, the last being only one year prior to a domestic violence incident, disqualifies appellant from having the card under the statute. ARBITRATION — DISMISSALS 03 2 1003 Zogg, et ux. v. Locialo, et al., App. Div. (per curiam) (8 pp.) The court erred in concluding that the dismissal of plaintiffs’ personal injury case, following their failure to confirm the arbitration award in their favor within the 50 day period provided by R. 4:21A 6(b), was a dismissal with prejudice. Such a dismissal, following a decision where the plaintiff prevailed at arbitration, is a “procedural dismissal” and the “exceptional circumstances” standard does not apply to a motion to vacate the dismissal; instead, the “excusable neglect” standard of R. 4:50 1 applies. Plaintiffs’ decision to file a second lawsuit was procedurally incorrect; therefore, the panel chooses to treat the second action as though it were a R. 4:50 1 motion. On that basis, the panel relieves the plaintiffs from the effect of the administrative dismissal on the grounds of excusable neglect and confirms the arbitrator’s award. CIVIL PROCEDURE — SETTLEMENTS 07 2 1004 Perez, et ux. v. Rodriguez, et ux., App. Div. (per curiam) (7 pp.) The trial judge erred in enforcing an alleged settlement on Monday morning when there was nothing to dispute the assertions of defense counsel that he made it clear to plaintiffs’ counsel and the judge that he had no authority to negotiate a settlement beyond the specific time window set by the claims representative and expiring at 4 p.m. on the Friday before. By adopting a “substantial compliance” test and finding that acceptance early Monday was the substantial equivalent of acceptance the prior Friday by 4 p.m., the trial judge inappropriately altered the terms of the settlement offer. CIVIL RIGHTS — CLAIM PRECLUSION 46 2 1005 Bent v. Stafford Twp., et al., App. Div. (per curiam) (12 pp.) The plaintiff was arrested, charged and eventually pled guilty in federal court to a single count of filing a false personal income tax return. During the federal proceedings, the plaintiff’s motion to suppress evidence was denied, the federal judge concluding that the search of plaintiff’s home was conducted by the municipal police in furtherance of a law enforcement investigation; that there was no conspiracy, collusion or bad faith between the municipality and the IRS, but rather a “salutary cooperation between federal and state agencies.” Plaintiff later sued the municipal defendants in state court, alleging violations of his federal and state constitutional rights due to their involvement in the search of his home and cooperation with the investigation of federal prosecutors. The panel affirms the grant of summary judgment to the defendants under the doctrine of collateral estoppel. Further, the judge accurately found that all counts of plaintiff’s complaint were time barred. CORPORATIONS — FIDUCIARY DUTY 12 2 1006 Dayton Independence Square Condo. Assn., Inc. v. Scotto D’Aniello, App. Div. (per curiam) (7 pp.) The plaintiff condo. association sued defendant, its former president, for breach of fiduciary duties in violation of the association’s bylaws and N.J.S.A. 46:8B 14. Specifically, plaintiff claimed that defendant failed to maintain accurate accountings and financial records for the association, and owed it over $59,000 that he should have collected and remitted. The judge evaluated the evidence and the panel affirms his judgment entered for over $38,000 in favor of the plaintiff, giving the defendant credits for certain legal and accounting expenses, and denying plaintiff punitive damages. CORRECTIONS — DISCIPLINE 13 2 1007 Nelson v. N.J. Dept. of Corrections, App. Div. (per curiam) (3 pp.) The inmate appellant was justifiably disciplined for possession and use of a controlled dangerous substance after a random urine test revealed the presence of opiates. Although the inmate avers that he was improperly denied the opportunity to cross examine a senior C.O. regarding statements the inmate may have made regarding medications he may have taken, the panel finds that the cross examination was properly ruled irrelevant because the inmate had not been prescribed any medication for ten months prior to the time of the urine test. EDUCATION — SPECIAL EDUCATION 16 2 1008 Lenape Regional H.S. Dist. Bd. of Education v. W.B.P., III, et ux., etc., et al., App. Div. (per curiam) (17 pp.) A school district is not obligated pursuant to N.J.A.C. 6A:14 3.8 to perform a re evaluation of a student’s emotionally disturbed classification upon a parent’s request when the student is about to graduate. ENVIRONMENT — ENFORCEMENT STANDING 17 2 1009 Edison Wetlands Assn., Inc. v. N.J. D.E.P., et al., App. Div. (per curiam) (5 pp.) The trial judge aptly dismissed plaintiffs’ complaint against the DEP and the owner of property from which hazardous pollutants were allegedly discharged into the Mile Run Brook, since (1) an administrative consent order was executed by the property owner with the DEP in 1987; (2) the DEP has endeavored to enforce the ACO since; (3) this action does not involve injury or damage to property owned or possessed by plaintiffs; and (4) the ACO comprehensively dealt with the subjects embodied in the complaint. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25 2 1010 Giunta v. Bd. of Review, etc., et al., App. Div. (per curiam) (5 pp.) The claimant was justifiably disqualified for disability benefits during her unemployment and required to refund payments erroneously made to her, since she did not prove that she was totally disabled and since the evidence showed that she had made a workers’ compensation claim based on her partial disability in which she alleged that the condition was related to the use of a computer mouse at work. None of the conditions permitting waiver of recovery of benefits paid in error apply here. LANDLORD/TENANT — PERMANENT RETIREMENT OF BUILDING FROM RENTAL MARKET 27 2 1011 Starns, et al. v. American Baptist Estates of Red Bank, etc., et al., App. Div. (Cuff, J.A.D.) (14 pp.) Demolition of a thirty three unit apartment building and construction of an addition to a continuing care retirement community which includes independent living units qualifies as a permanent retirement of the building from residential use and good cause to evict the tenants pursuant to N.J.S.A. 2A:18 61.1(h). [Approved for publication Jun. 27, 2002.][Related to 26 2 1012 below.] LAND USE — NURSING HOMES 26 2 1012 American Baptist Estates of Red Bank, etc. v. Borough of Red Bank Zoning Bd. of Adjustment, et al., App. Div. (per curiam) (27 pp.) In reversing the Zoning Board’s denial of plaintiff’s application to construct an addition to its continuing care retirement facility, the judge properly concluded that the proposed use was inherently beneficial, and that the Board’s decision to deny the application was arbitrary. [Related to 27 2 1011 above.] LAND USE — USE VARIANCES 26 2 1013 Bell Atlantic N.J., Inc. v. Riverdale Zoning Bd. of Adjustment, App. Div. (Payne, J.S.C., t/a) (7 pp.) Determination by the defendant Board to deny a use variance to Verizon under N.J.S.A. 40:55D 70(d), so as to permit parking for 40 of its employees’ cars for a seven year period at an adjoining gas station, is reversed. The Board’s improper perception of Verizon as a solely commercial venture seeking purely private economic goals fatally infected its application of the MLUL’s positive and negative criteria to the facts presented and its weighing of those criteria. [Approved for publication Jun. 27, 2002.] NEGLIGENCE — BUSINESS INVITEES — JURY INSTRUCTIONS 31 2 1014 Shah, et al. v. Corning Glass Factory, et al., App. Div. (per curiam) (7 pp.) This case involved an alleged assault of plaintiffs by a security guard at defendants’ store. The panel concludes that the verdict sheet, together with the judge’s charge, improperly posed the question of whether the guard had committed an assault and battery as an intentional act or the stark alternative of a finding of “no cause.” Viewing the evidence in its entirety, the court concludes that a sufficient basis existed to state a separate question to the jury relating to the issue of a simple battery upon plaintiffs by the guard in addition to his alleged intentional conduct. There was also no question on the verdict sheet which paralleled the judge’s instructions about the general liability of the store based upon its duty to provide a reasonably safe place for business invitees; a question should have been asked as to whether it was negligence for the store to have called the guard for assistance in the first place under the circumstances. PARENT/CHILD — TERMINATION OF RIGHTS 28 2 1015 D.Y.F.S. v. C.W.; I/M/O Guardianship of T.N.W., et al., Minors, App. Div. (per curiam) (9 pp.) The judge justifiably terminated appellant’s parental rights to her five children, despite the fact that a permanent placement plan has not yet been made for the children. Appellant’s proffer with respect to her future ability to care for the children was unsupported factually, and is therefore insufficient to counter the State’s clear and convincing evidence or to cast doubt on its ultimate conclusion that termination was in the children’s best interest. While the lack of a permanent plan is troubling, it is insufficient, alone, to warrant reversal in the circumstances presented. 28 2 1016 N.J. D.Y.F.S. v. F.B.; I/M/O Guardianship of S.B., et al., Minors, App. Div. (per curiam) (6 pp.) The judge justifiably terminated appellant’s parental rights to her three children, where, despite the best efforts of DYFS, repeated attempts to help appellant with her drug addiction failed. The three children have long resided with their foster families, have fully bonded with the foster parents, and are living happy lives. The experts opined that the children would suffer substantial harm if these ties were broken; and appellant was totally unable to serve in a parental role. PHYSICAN/PATIENT — EXPERTS 29 2 1017 Rosenberg, etc., et al. v. Tavorath, M.D., et al.,App. Div. (Axelrad, J.T.C., t/a) (28 pp.) The panel orders a new trial, reversing the trial court’s involuntary dismissal of plaintiff’s medical malpractice case, which dismissal was based on the ground that plaintiff’s qualified oncology expert did not adequately set forth a standard of care. Plaintiff’s expert was competent to testify and offer an opinion regarding treatment of laryngeal cancer with chemotherapy, and offered sufficient testimony to establish a standard of care, a deviation therefrom, and a causal link between that deviation and the injury to allow plaintiff’s case to be presented to a jury. In the retrial, the plaintiff may need to present factual testimony from the scrivener or promulgator of the hospital’s “team approach” protocols concerning the treatment of patients undergoing chemotherapy. In addition, since it appears that the protocols may be subject to divergent inferences, expert testimony may be necessary to explicate the protocols’ terms and in order to understand their significance in the context of this case. [Approved for publication Jun. 27, 2002.] WILLS, ESTATES AND TRUSTS — MENTAL INCOMPETENTS 38 2 1018 I/M/O Manzo, an Incapacitated Person, App. Div. (per curiam) (13 pp.) The appellate panel affirms the final judgment of the Chancery Division which authorized the plaintiff/attorney, as guardian of the property of the mental incompetent, to execute an amendment to an existing Asset Purchase Agreement which had previously been approved by a final judgment and negotiated by the guardian on behalf of the incompetent, as well as the appellants, for the sale of certain property and assets. Sophisticated agreements involving multiple properties and requiring extensive and arduous negotiation will always be subject to second guessing; the objective of a guardian and a reviewing court, in the first instance, is not that the “perfect” resolution will be obtained, but that an agreement well negotiated by a reasonably prudent guardian will serve the best interests of all parties within a realm of fairness and reasonableness, which was achieved here. WRONGFUL DEATH — ALCOHOLIC BEVERAGES 40 2 1019 Salemke, etc. v. Sarvetnick, et al., App. Div. (Lintner, J.A.D.) (13 pp.) Summary judgment was properly granted to the defendant nightclub, as plaintiff failed to produce evidence that decedent was visibly intoxicated at the time she was served alcohol by defendant, as required by N.J.S.A. 2A:22A 5. The trial judge also properly admitted decedent’s blood alcohol content without expert testimony because plaintiff neither contested the authenticity of the reading nor the conclusion that decedent’s ability to operate a motor vehicle would be impaired. Instead, plaintiff premised her objection on the contention that it was unfair to grant summary judgment in favor the nightclub and permit evidence of blood alcohol content in the State’s case. The court points out that the burden of proof in a dram shop case is different than that which is required to show that a driver’s ability to operate a motor vehicle was impaired as a result of alcohol consumption. [Approved for publication Jun. 27, 2002.] CRIMINAL LAW/ PROCEDURE — CHILD SEXUAL ASSAULT — EVIDENCE 14 2 1020 State v. L.P., App. Div. (Skillman, P.J.A.D.) (17 pp.) A child sexual assault victim’s out of court statements concerning the assaults were properly admitted under the fresh complaint rule, even though the statements were made nearly a year after the last assault because the victim continued to live under an aura of intimidation created by the defendant’s threats until four months before she reported the assaults. [Approved for publication Jun. 27, 2002.] CRIMINAL LAW/ PROCEDURE — CORRECTED SENTENCES — APPEALS 14 2 1021 State v. Gould, App. Div. (Wells, J.A.D.) (8 pp.) The State’s appeal of a corrected sentence to probation of a second degree offender pursuant to N.J.S.A. 2C:44 1f(2) must be dismissed where the State inadvertently failed to file within ten days after the corrected sentence, relying instead upon an earlier erroneously misdirected appeal of the illegal sentence and where the defendant began and served the terms of his probation for a period of fifty two days before the error was discovered. [Approved for publication Jun. 27, 2002.] CRIMINAL LAW/PROCEDURE — INEFFECTIVE ASSISTANCE OF COUNSEL 14 2 1022 State v. Washington, App. Div. (per curiam) (7 pp.) While the panel agrees with the trial judge that defendant’s investigator’s report of the interview with one proposed witness was not sufficient to establish a prima facie case of ineffective assistance of counsel, and there was nothing presented to indicate that a second witness would have been favorable to defendant, it reaches a different conclusion regarding the third proposed witness, and remands. The panel is of the view that the judge should have overlooked various procedural objections once this witness’s certification was submitted; specifically, the judge should have afforded counsel an opportunity to call this witness so that his credibility could be assessed. The judge could then have reached a more informed decision as to whether trial counsel was derelict in failing to call this witness and whether the proffered testimony created a reasonable probability that the result of the trial would have been different. CRIMINAL LAW AND PROCEDURE — MIRANDA WARNINGS 14 2 1023 State v. Brown, App. Div. (Eichen, J.A.D.) (26 pp. — including concurring opinion by Stern, P.J.A.D.) Questioning by DEA agents during an investigatory stop of a passenger arriving from L.A. at Newark Intl. Airport did not evolve into a de facto arrest requiring Miranda warnings under the totality of the circumstances here. Failure to reserve the right to challenge admissibility of statements as required by R. 3:9 3(f) is not a bar to the appellate panel’s review of the Miranda issue because the evidence presented on defendant’s motion to suppress physical evidence was inextricably intertwined with the evidence presented concerning the voluntariness of her oral statements during the investigatory stop. The concurring judge discusses the application of the plea preservation rule, R. 3:5 7(d) and R. 2:11 4. 3:9 3(f). [Approved for publication Jun. 27, 2002.] — END–

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