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Vol. 2, No. 45 DECISIONS ISSUED MARCH 17, 1994 FAMILY LAW 20-2-2859 Cindy Lou McGuire v. Thomas Dillon, App. Div. (7 pp.) Trial court properly held that mother could remove two minor children from state to Florida, since there was substantial evidence to support trial court’s findings that, for example, custodial parent and children’s general quality of life would improve. 20-2-2860 S.S. and D.A., App. Div. (6 pp.) Where plaintiff filed domestic-violence complaint against defendant, and parties co- habitated on and off during six-week relationship, but retained their own residences, trial court erred in dismissing complaint, since trial court did not have sufficient facts to determine if parties were household members, as defined in pertinent case law. INSURANCE 23-2-2861 Insite-Properties, Inc. v. Jay Phillips, Inc. v. Riunione Adriatica Disicurtia, App. Div. (8 pp.) Where insured-Jay Phillips sued defendant-carrier for “claims made” professional liability policy coverage, trial judge’s decision that insured’s claim was covered was remanded, since a question existed regarding whether insured’s claim was filed timely. INSURANCE – AUTOMOBILES 23-2-2862 Sulmarie Duncan v. Frances N. Dorio, App. Div. (8 pp.) Where plaintiff, a Florida resident, suffered from reduced range of motion in her back from injuries sustained in an automobile accident, trial court properly held that plaintiff failed to meet verbal threshold criteria, since even though plaintiff’s back injury prohibited her from participating in sports, her life was not significantly affected, because sports were not an integral part of her life. 23-2-2863 Hanover Insurance Co. v. American Casualty Insurance Co., App. Div. (10 pp.) Where plaintiff’s insured was injured in an automobile accident caused by defendant’s insured, who was operating a commercial vehicle that was not required to have PIP coverage, and plaintiff sent letter to defendant carrier notifying carrier that plaintiff was assuming its subrogation rights for all of its insured’s PIP benefits, trial court erred in holding that plaintiff’s subrogation claim was filed untimely, since trial court did not make sufficient findings of facts to determine if subrogation claim was filed timely under N.J.S.A. 39:6A-9.1. INSURANCE – HEALTH 23-2-2864 Jay Smith and Bonita Smith v. State Health Benefits Commission, App. Div. (6 pp.) Where under doctor’s directions, insureds gave themselves injections at home to immunize their systems from allergies and coverage for treatment was denied after coverage was initially provided, administrative law judge properly determined that treatment was not covered, since the therapy was not proven or standard technique in medical profession. LAND USE 26-2-2865 Vivian Buchanan Braxton, et al., v. Kumar Singh, et al., App. Div. (8 pp.) Where parties are neighbors who share common driveway, and if defendants constructed fence along property line, plaintiffs would not be able to use driveway, trial court erred in holding that plaintiffs did not have an easement by necessity, since plaintiffs could establish ownership of property either by adverse possession or an easement by prescription, depending on trial court’s further factual findings on remand. MUNICIPAL LAW – TORTS 30-2-2866 Estate of Dominic H. D’Amico, et al., v. City of Hoboken and Gins Group, Inc., et al. App. Div. (11 pp.) Where plaintiff-decedent was injured from a fall on ice in front of commercial property owned by defendant-Gins Group, trial court erred in dismissing decedent’s complaint under Tort Claims Act, since numerous factual issues existed, such as whether decedent fell on sidewalk or curb. PUBLIC EMPLOYEES 33-2-2867 Stephen Dobron v. Board of Trustees, Police and Firemen’s Retirement System, App. Div. (9 pp.) Board of trustees properly denied plaintiff’s application for service retirement allowance from his job as a senior corrections officer at a youth correction center, since board’s decision was based on valid distinctions, pursuant to N.J.S.A. 43:16A-5(1) and N.J.S.A. 43:16a-1, between specified public employees in service as of retirement date and those employees who leave office before age 55 and then later seek a deferred retirement at age 55. CRIMINAL LAW AND PROCEDURE 14-2-2868 State v. Kirk, App. Div. (8 pp.) Where defendant was convicted of cocaine possession, trial court erred in not allowing a defense witness to testify that the witness saw defendant near drug sale, but did not see defendant buy or sell drugs, since a defendant may present evidence that a crime with which he had been charged was committed by someone else.

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