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Vol. 2, No. 12 DECISIONS ISSUED JANUARY 24, 1994 CIVIL PROCEDURE 07-2-2382 Rosalind Marmel v. Newton Chanin, App. Div. (3 pp) Dismissal of complaint with prejudice for plaintiff’s non appearance at trial was affirmed since plaintiff’s proffer of business and medical records did not substantiate her claim of ill health. CONSTITUTIONAL LAW 10-2-2383 Harry Pappas v. Union County Board of Freeholders et al., App. Div. (10 pp.) Where county employee brought 42 U.S.C. 1983 suit against both the county and the individual freeholders who allegedly blocked plaintiff’s job appointment because of his political beliefs, defendants were not entitled to recover counsel fees, since plaintiff’s claims — that the freeholders (1) acted “under color of law” and (2) were a separate entity from the county — were not frivolous. ENVIRONMENT 17-2-2384 Borden, Inc. v. N.J. Department of Environment Protection and Energy, App. Div. (8 pp.) Department acted within its discretion by calculating plaintiff’s 1992 Pollutant Discharge Elimination System permit fee under N.J.A.C. 7:14A- 1.8 based on 1990 discharge data, despite plaintiff’s argument that 1991 data should have been used. FAMILY LAW 20-2-2385 Sandra Sullivan v. David Sullivan, App. Div. (10 pp.) Trial court’s conclusion that husband’s past income while employed by a marketing corporation was indicative of his future income from his own business venture was based on sheer speculation, and remand was ordered from court’s alimony and child support awards. HEALTH 22-2-2386 In the Matter of the Suspension or Revocation of the License of Ellen McCormack to Practice Nursing, App. Div. (6 pp.) State Board of Nursing acted within its discretion by revoking license of nurse because she failed to (1) report an incident in which an aide punched a mentally disturbed patient and (2) display an understanding that her actions were unacceptable. LAND USE 26-2-2387 Salt & Light Company, Inc. v. Township of Pemberton et al., App. Div. (7 pp.) Zoning board erred by concluding that plaintiff’s application for a variance permitting housing of adults in a commercial zone was barred by res judicata because of a previous variance application for housing of indigent mothers and children, since the applications were substantially different. LAND USE – GOVERNMENT 26-2-2388 Joseph Slowinski et al. v. The County of Monmouth et al., App. Div. (22 pp.) County was entitled to widen road to presumptive sixty-six foot width provided in eighteenth century statutes governing public takings, even though the full width of the statutory right-of-way had not previously been utilized by the public, since the right-of-way had been acknowledged by purchasers of the property for centuries. TAXATION 35-2-2389 Edward Darden, Inc. v. The City of Atlantic City, et al. App. Div. (11 pp.) City was not estopped from asserting title to property it acquired through tax foreclosure judgment, since plaintiff did not establish that it reasonably relied to its detriment on city’s subsequent acceptance of tax payment and cancellation of planned tax sale. CRIMINAL LAW AND PROCEDURE 14-2-2390 State v. Keith Hardaway, App. Div. (5 pp.) Manslaughter conviction was reversed where trial court admitted evidence that defendant committed a robbery that was introduced for the purpose of showing that he was present at the scene of the homicide, since court did not articulate its weighing of the probative value of the evidence against its prejudicial effect. 14-2-2391 State William McPhall et al., App. Div. (4 pp.) Court acted without legislative authority when it vitiated mandatory period of incarceration that had been imposed on defendants by granting their applications for admission into an intensive supervision program.

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