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Vol. 2, No. 35 DECISIONS ISSUED MARCH 1, 1994 CIVIL PROCEDURE – PRODUCTS LIABILITY 07-2-2716 Stephen Chapwick v. Cottrell Inc., et al., App. Div. (5 pp.) Where employee, who was injured while pushing a skid into a trailer, sued what employee believed to be trailer manufacturer, and several years after instituting lawsuit filed an unopposed motion to add additional defendant — the company that actually manufactured trailer — trial court erred in dismissing employee’s motion for being untimely, since employee joined trailer manufacturer as soon as he learned of its true identity and company was not prejudiced. CIVIL RIGHTS – LABOR AND EMPLOYMENT 46-2-2717 Ida Petkus v. New Jersey Network, Inc., App. Div. (4 pp.) Where employee claimed that employer transferred her from one position to another and denied her the opportunity to compete for a new position based on her religion, division of civil rights properly found no probable cause, based on division’s investigation. CONTRACTS – CONSUMER PROTECTION 11-3-2718 Theodore Levy v. Edmund Buick-Pontiac, Ltd., Law Div. (6 pp.) Where plaintiff’s brother purchased car with several thousand miles from defendant dealership and assigned to plaintiff all rights and interest in claim against dealership under the Consumer Fraud Act for failure to inform the brother that car was not covered under new car warranty, trial court held that plaintiff could not recover under Consumer Fraud Act treble damages provision, since plaintiff’s brother, not plaintiff, was damaged because of car dealership’s conduct. [Approved for publication on Feb. 28, 1994.] CONTRACTS – REAL ESTATE 11-3-2719 Leadership Real Estate Inc. v. Bernard Harper, et al., Law Div. (43 pp.) Where real estate broker sought a brokerage commission under a contract providing that broker could collect a commission within the first six months after the agreement expired, if property was sold to anyone that the broker had shown property to, trial court dismissed real estate broker’s complaint since buyer and seller failed to enter into a binding sales contract prior to expiration of six-month extension. [Approved for publication on Feb. 28, 1994.] DEBTOR/CREDITOR – FAIR HOUSING 15-3-2720 Jersey Central Power & Light Co. v. Kingsley Arms, Inc. and Asbury Park Housing Authority, et. al., Law Div. (20 pp.) Where housing authority leased apartments in a multi-unit building to provide low-rent housing and it sought to vacate two levies against it for failure to pay rent, trial court held that (1) housing authority’s bank accounts are exempt from execution under N.J.S.A. 40A:12A-34; and (2) the appropriate remedy for landlord to collect rental fees is by an action in lieu of prerogative writs and not by execution. [Approved for publication on Feb. 28, 1994.] FAMILY LAW 20-2-2721 Carl H. Burd v. Elizabeth B. Burd, App. Div. (8 pp.) Where (1) in property settlement agreement, husband transferred all interests in farm free and clear of all encumbrances to wife, and upon sale of farm one-half of proceeds would go to husband; (2) wife rejected certain price for farm land; and (3) husband sued wife for enforcement of litigants’ rights, trial court properly denied husband’s motion, since wife did not breach a covenant of good faith and fair dealing, in rejecting certain price for farm land. INSURANCE – AUTOMOBILES 23-2-2722 Angela Licata-Savino and Josephine M. Licata v. Jerlyn Associates, Inc., et al., App. Div. (8 pp.) Where plaintiff-insured was injured in an automobile accident and sued defendant-insurance broker for negligent failure to inform insureds of the availability of UIM coverage equal to policy limits, trial court erred in granting summary judgment for insurance broker, since insurance broker’s deposition testimony raised factual questions concerning broker’s duty to insureds. LABOR AND EMPLOYMENT 25-2-2723 Jacqueline Alongi v. Board of Review, App. Div. (5 pp.) Unemployment compensation board of review properly held that employee left work voluntarily without good cause attributable to her work, since (1) record clearly supports that main reason for employee leaving work was anger stemming from firing of a co-worker, and (2) work conditions were not so intolerable as to constitute good cause. LAND USE 26-3-2724 Institute for Evaluation and Planning, Inc., et al., v. Board of Adjustment, et al., Law Div. (8 pp.) Board erred in denying plaintiffs’ application — that use of a single-family residence, zoned for business, as a group home for troubled girls would be an expansion of a nonconforming, residential use — since state definition of a group home is defined to mean a single-family home in which children are placed, which was not an expansion of the nonconforming use. [Approved for publication on Feb. 28, 1994.] PRODUCT LIABILITY – TORTS 32-2-2725 Carol Ann Feldman v. Lederle Laboratories, App. Div. (12 pp.) Where plaintiff sued defendant-drug company for fraudulent concealment/spoliation of evidence, alleging that defendant withheld documents from plaintiff that would have demonstrated that drug company knew that a drug could cause tooth staining, trial court erred in dismissing plaintiff’s complaint for failure to state a claim under which relief could be granted, since plaintiff’s allegations were not facially defective and were not based on conjecture. CRIMINAL LAW AND PROCEDURE 14-2-2726 State v. Artemio Arce, App. Div. (7 pp.) Where defendant was indicted of attempted robbery with a replica of a handgun, trial court erred in not dismissing indictment, since a replica handgun is not a “weapon” under N.J.S.A. 2C:39-1r, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:39-5d. 14-2-2727 State v. Richard Irizarry, App. Div. (31 pp.) Where defendant and co-defendant were tried separately on capital murder charges, trial judge erred in holding that a conflict of interest existed when prosecutor — who at co-defendant’s trial permitted defendant to testify with immunity — would testify at defendant’s trial about defendant’s cooperation in the co- defendant’s trial, since a properly instructed jury would understand that the prosecutor’s duty is to do justice in an individual case, and must disclose evidence beneficial to the defendant. 14-2-2728 State v. Vernon Alan Kelley and State v. Jesse Ray Ellis, App. Div. (7 pp.) Where (1) marijuana was found during search of suitcases carried by both defendants after co-defendant Kelley consented to search of bags and (2) co-defendant Ellis contended that Kelley’s authorization did not extend to Ellis’s bags, trial court properly admitted evidence of search, since consent to a search may be obtained “from a third party who possesses common authority over the property.” 14-2-2729 State v. Charles Patterson and Ronald Johnson, App. Div. (Trial court and App. Div. 16 pp.) Where police officer — who believed defendants fit profile of drug traffickers using mass transit to distribute drugs — ordered another police officer to stop taxi that defendants had hired and defendants’ behavior observed by police officer who stopped taxi supposedly provided a legal basis for a police search, which revealed controlled dangerous substances, trial court properly suppressed evidence, since one police officer had primary knowledge of the profile and another had exclusive knowledge of defendants’ movements, these separate observations cannot be subsequently combined to justify stop. [Approved for publication on Feb. 28, 1994.] CRIMINAL LAW AND PROCEDURE – EVIDENCE 14-2-2730 State v. Francis X. Brand, App. Div. (16 pp.) Where defendant and co-defendant were convicted of murdering defendant’s brother, trial court properly admitted statements of defendant’s ex-girlfriends to rebut defense’s claim that co- defendant changed his testimony after accepting plea bargain — where co-defendant stated that defendant wanted to kill his brother, and prior to plea bargain he stated that defendant had nothing to do with brother’s death — since N.J.R.E. 607 permits admission of this type of rehabilitating evidence.

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