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Vol. 2, No. 34 DECISIONS ISSUED FEBRUARY 28, 1994 FAIR HOUSING 41-2-2702 The City of Plainfield v. The Council on Affordable Housing, et al., App. Div. (27 pp.) Where COAH determined that a development located in Plainfield and Scotch Plans was to be included in the fair share of affordable housing despite Plainfield’s claims that the development was not appropriate under COAH regulations, administrative law judge properly affirmed COAH’s decision, since record supported council’s findings. FAMILY LAW 20-2-2703 Phyllis Carlin v. Philip R. Carlin, App. Div. (6 pp.) It was within trial judge’s discretion under R. 1:2-4, where pro se husband failed to appear for hearing, to deny on the merits his application for modification of support. 20-2-2704 Jill Stone v. Kevin Maher, App. Div. (10 pp.) Where parties in divorce settlement agreed that sale of marital house while child was still entitled to husband’s support would constitute changed circumstances and wife made application for increased child support, trial court erred in holding that wife had not met changed circumstances requirement for increased child support, since marital home had been sold while child was still entitled to husband’s support. HEALTH – GOVERNMENT 22-1-2705 In the Matter of the Adoption of Regulations Governing the State Health Plan, Sup. Ct. (7 pp.) As between the state legislature and department of health, the legislature has the authority to formulate state policy on health-care planning, since, among other things, the state constitutional amendment to article five, section four, paragraph six which allows the legislature to override an administrative agency’s regulation when the legislature determines that an administrative regulation exceeds the agency’s delegated authority or is contrary to public policy, the legislature may adopt legislation that overrides the regulation. [Decided February 28, 1994] INSURANCE – AUTOMOBILES 23-2-2706 Liberty Mutual Insurance Co. v. Selective Insurance Co., Where driver was seriously injured when his car collided with a commercial vehicle that had excess coverage, trial court properly held that an excess carrier is liable as an “insurer” under N.J.S.A. 39:6A-9.1 when the primary carrier exhausts its limits. JURISDICTION 24-2-2707 Oliver V. Heulitt v. West Michigan Plumbing and Heating, Inc., App. Div. (5 pp.) Where (1) plaintiff-New Jersey subcontractor sued Michigan general contractor for payment for work done in New Jersey and Michigan and (2) Michigan general contractor filed a declaratory judgment action in Michigan, in which Michigan court held that the dispute must be arbitrated according to contract terms , and where subcontractor answered and did not contest Michigan court’s jurisdiction, New Jersey trial court properly dismissed plaintiff’s complaint for lack of jurisdiction, since Michigan judgment is res judicata and bars New Jersey suit. LAND USE 26-2-2708 County of Monmouth v. New Jersey Department of Environmental Protection and Energy (DEPE), App. Div. (8 pp.) DEPE commissioner properly remanded the issue of construction of a new four-lane bridge to Historic Sites Council where municipality argued that bridge would potentially encroach on registered historic places, since the DEPE has inherent power for good cause shown to reopen or modify orders that have been entered. 26-2-2709 James A. Rogers III, et al. v. Board of Adjustment of the Village of Ridgewood, et al., App. Div. (10 pp.) Where board of adjustment granted board of education’s variance to permit student parking during school days on Public Service land adjacent to high school, chancery court erred in holding that the variance should not have been granted, since board of adjustment’s findings were supported by substantial credible evidence in the record. LANDLORD AND TENANT 27-2-2710 Timothy Regan v. Tom Bohner, App. Div. (4 pp.) Double statutory penalty of N.J.S.A. 46:8-21.1 not available where claimed illegal subtenancy did not result in termination of lease. REAL ESTATE – CONTRACTS 34-2-2711 J. Kevin Keenoy v. Eatontown B.P.O. Elks, #2402 App. Div. ( 4 pp.) Where buyer obtained a mortgage commitment but not the type of commitment specified in contract for sale, trial court properly declared that contract had been rightfully terminated and ordered return of defendant’s deposit, since buyer did not comply with terms of contract, which allowed either party to void agreement. TORTS – GOVERNMENT 36-2-2712 Catherine Haynoski v. Estate of Millie Dolson and Township of Ridgefield, App. Div. (4 pp.) Where plaintiff was injured after tripping on sidewalk in front of a two-family house located in a commercial zone, trial court properly dismissed plaintiff’s complaint against homeowners, since the property’s predominant use was residential, making its owner’s exempt from liability for the accident. CRIMINAL LAW AND PROCEDURE 14-2-2713 State v. Gail Kotter, App. Div. (17 pp.) In prosecution for manslaughter and other crimes involving reckless culpability, trial judge properly refused to allow defendant to offer psychologist’s testimony in support of diminished capacity defense, since Rule 8 hearing established that the testimony was relevant only to the defense of intoxication, which can only excuse crimes requiring purposeful or knowing conduct. 14-2-2714 State in the Interest of A.L., App. Div. (25 pp.) Section of juvenile waiver statute, N.J.S.A. 2A:4A-26, placing burden on juvenile to show probability that he/she can be rehabilitated before reaching age nineteen, does not conflict with the accused’s right against self-incrimination, since juvenile has no constitutional right to remain before the juvenile court and the Legislature may thus completely exclude certain serious offenses from juvenile court treatment so long as classification scheme is neither arbitrary nor capricious. 14-1-2715 State v. John Lee Wilson, Jr., Sup. Ct. (25 pp. incl. dissent) Where defendant was charged with attempted robbery and murder at a meat market in Neptune, trial judge’s admission of videotape created by prosecutor’s office — which depicted physical location of the witnesses and murder victim at the time of the crime — was harmless error, since the videotape contents were legally relevant evidence and defense counsel had ample opportunity to confront state’s witnesses by questioning them on the videotape’s representations. [Decided Feb. 28, 1994]

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