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Vol. 2, No. 3 DECISIONS ISSUED JANUARY 5, 1994 CIVIL PROCEDURE – CONST’L LAW – REAL ESTATE 07-2-2262 Town of Dover v. Block 901, Lot 4, Dover Ramada, Inc. et al., App. Div. (9 pp.) Claim brought under 42 U.S.C. 1983 against town that sold property subject to a deed containing an ultra vires tax assessment provision accrued at the time the deed was executed, not at the time the town attempted to enforce the provision, and the claim was time barred since it was filed after expiration of the state’s two-year personal injury statute of limitations. FAMILY LAW 20-2-2263 D.C. v. T.H., App. Div. (6 pp.) Trial court erred by concluding that allegedly threatening statement’s made by the father of plaintiff’s child about plaintiff’s current boyfriend justified the issuance of a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., since the court found that the statement was not made for the purpose of harassing plaintiff. INSURANCE – AUTOMOBILES 23-2-2264 John Lyons v. Mike Albert Leasing et al., App. Div. (4 pp.) Plaintiff who allegedly sustained a back injury in a car accident did not satisfy the verbal threshold where he failed to present evidence of injury other than doctor’s reports reciting his complaints of pain and he presented no proof of the injury’s impact on his life. LANDLORD/TENANT 27-2-2265 316 49 St. Assoc., L.P. v. Germania Galvez, App. Div. (14 pp.) (1) , Lease payments required of tenant to preserve an option to purchase her apartment when it becomes a condominium should be considered rent payments for the purpose of determining compliance with city’s rent control ordinance, since there was no legitimate expectation that tenant would be able to afford to purchase the apartment. (2) Residential lease term stating that landlord had no obligation to renew the lease is unenforceable under the Anti-Eviction Act, N.J.S.A. 2A:18- 61.3a and 2A:18-61.4. NEGLIGENCE 31-2-2266 Donald Sikes, Jr. v. Township of Rockaway et al., App. Div. (7 pp.) In suit against township where plaintiff was awarded lump-sum damages and he was found to be 50 percent contributorily negligent, the proper method for calculating township’s credit for payments plaintiff received from collateral sources is to subtract the collateral payments from the lump sum and then deduct 50 percent for plaintiff’s negligence, as opposed to deducting 50 percent from the lump sum and then subtracting the collateral payments. REAL ESTATE 34-2-2267 Lima & Sons, Inc. v. Borough of Ramsey et al., App. Div. (14 pp.) Borough acted within its discretion by denying plaintiff’s business direct access to an abutting municipal roadway, since plaintiff had reasonable access to a state highway and a property owner is entitled only to reasonable access to the system of public roadways. REAL ESTATE – CONTRACTS 34-2-2268 ERA Designs for Living, Inc. v. Richard Hajdu et al., App. Div. 4 pp.) Where real estate broker’s clients contracted to buy each others’ homes during the period of a listing agreement but the sale was called off because of a tax lien on one of the homes, broker was not entitled to a commission when the transactions were executed following expiration of the listing agreement, since there was no evidence that the termination of the original contracts was designed to circumvent broker’s right to a commission. CRIMINAL LAW AND PROCEDURE 14-2-2269 State v. Wiley Bush, App. Div. (5 pp.) Trial judge acted within his discretion by questioning alibi witness about when the witness first heard that defendant was charged with a crime and witness’s ability to recall what defendant was doing on the date of the alleged offense, despite defendant’s contention that the questions demonstrated to the jury that the judge disbelieved the witness. 14-2-2270 State v. Timothy Mays, App. Div. (22 pp.) (1) Unlawful handgun-possession conviction was reversed where defendant testified that he possessed the gun only long enough to disarm an attacker and the trial court failed to instruct jury on the defense of necessity. (2) Convictions for third-degree burglary and third-degree criminal restraint were reversed where the trial court failed to sua sponte charge lesser-included offenses — fourth-degree criminal trespass and false imprisonment — that were supported by the evidence.

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