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Vol. 2, No. 32 DECISIONS ISSUED FEBRUARY 24, 1994 TAXATION 35-5-2685 New York SMSA Limited Partnership v. East Hanover Township, et al., Tax Ct. (10 pp.) For tax-paying purposes, personal property of cellular mobile telephone networks, which includes central switching offices and remote cell sites, is not taxable, since taxpayers do not hold a franchise taxable under the public utility franchise tax, because under existing statutes public utility boards do not have jurisdiction over cellular telecommunications services. [Decision issued Feb. 23, 1994] CIVIL PROCEDURE 07-2-2686 Nancy Cella, v. Michael P. Giama and Anthony R. Cicalese, App. Div. (5 pp.) Trial judge properly denied plaintiff’s untimely application to reinstate complaint which was dismissed for lack of prosecution, since plaintiff’s sole excuse that defendant was not timely served with summons was that plaintiff’s attorney was negotiating claim with defendants’ insurance carrier. FAMILY LAW 20-2-2687 Philip Sax, et al. v. Donald Meyer, et al., App. Div. (3 pp.) While defendant grandson — who was residing with his co-defendant grandfather — knocked out two of plaintiff’s front teeth during a school yard fight, trial court properly granted summary judgment dismissing complaint alleging negligent supervision by grandfather, since (1) there was no way that grandfather could anticipate that grandson would violently assault another student, (2) there was no indication that child required more severe punishment than was provided. INSURANCE – AUTOMOBILES 23-2-2688 Albert Fulvi, Jr. v. Continental Insurance Comapny of New Jersey, et al., App. Div. (3 pp.) Trial judge properly granted summary judgment for underinsured motorist carrier, because plaintiff’s counsel failed to notify the UIM carrier before settling with the tortfeasor. LAND USE – ENVIRONMENT 26-2-2689 Warner Co. v. Barbara Sutton, et al., App. Div. (14 pp.) Where environmentalists challenge amended consent order reached between plaintiff company and Maurice River Township — which allowed company to continue mining on its property and build a residential community at a density greater than one unit per 25 acres, when company property was zoned as a conservation district — trial judge erred in denying environmentalists’ application to intervene and to reopen amended consent order because of late filing, since (1) timeliness of motion must be measured based on issues raised after amended consent order was adopted, and (2) post-judgment intervention was sought solely to appeal judgment. PUBLIC ASSISTANCE 45-2-2690 W.W. and L.W. v. New Jersey Department of Human Services, Department of Family Development, App. Div. (14 pp.) Where family who was receiving assistance and food stamps reported inheritance to department, director erred in calculating the period of ineligibility for the family to receive benefits under the “lump sum” rule, N.J.A.C. 10:82-4.15, since the “standard of need” formula, not the monthly-allowance formula, should have been used. CRIMINAL LAW AND PROCEDURE 14-2-2691 Terry Nelson v. Polly Porter, App. Div. (6 pp.) Where defendant served his federal prison term for a bank robbery conviction and was remitted to the custody of the state Department of Corrections, trial judge properly (1) amended defendant’s erroneous sentencing order, shortening defendant’s jail credit to the period from his state sentencing date (rather than from his arrest date) until he was brought to New Jersey under the Interstate Agreement on Detainers, and, (2) deleted “gap credits,” since under R. 3:21-8 credits are awarded only for time defendant spends in jail post-arrest and pre-sentencing directly or solely attributable to the offense for which he is sentenced. 14-2-2692 State v. Barbara Quintana, App. Div. (13 pp.) Trial court erred in summarily adjudicating defendant in contempt in presence of court for nonappearance for sentencing on minor criminal charges, since defendant’s nonappearance at sentencing cannot be deemed willful if she was (1) not notified of sentencing date, and (2) not ordered to advise court or probation department of address changes. 14-2-2693 State v. Remy Sainvallier, App. Div. (4 pp.) Trial court erred in denying defendant’s petition for post-conviction relief, since trial court should have permitted defendant to have effective representation of counsel before acting on his petition.

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