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Vol. 2, No. 42 DECISIONS ISSUED MARCH 14, 1994 AUTOMOBILES – TORTS 05-2-2818 Sharon Hala v Federal Realty Investment Trust, App. Div. (6 pp.) Where plaintiff’s automobile was damaged by truck tires while parked in mall parking lot owned by defendant, trial court erred in holding that it was foreseeable that plaintiff’s automobile would be damaged, since there is nothing inherently dangerous about parking a truck in an automobile parking lot. DEBTOR/CREDITOR – REAL ESTATE 15-2-2819 Mortgage Access Corp. v. Bonnie Leek, et al., App. Div. (8 pp.) Where defendant was successful bidder at first execution real estate sale but failed to pay balance within 30-day period and sheriff disqualified her as bidder at second sale, trial court erred in reinstating defendant’s bid after finding that sheriff’s actions were justified, since trial judge’s findings precluded judicial interference with sale results. EDUCATION – PUBLIC EMPLOYEE 16-2-2820 Hunterdon Central Regional High School District Board of Education v. Hunterdon Central Regional High School Education Association, App. Div. (12 pp.) Where board moved to withhold tenured teacher’s salary and adjustment increments because of teacher’s inadequate classroom supervision skills, arbitrator erred in choosing a lesser sanction than board recommended, since arbitrator clearly acted outside the scope of his authority. ENVIRONMENT – REAL ESTATE 17-2-2821 Betty Simon, et al. v. Deptford Township and Bell Harbor Corp. et al. App. Div. (11 pp.) Where buyers of land which had been used as a landfill did not question environmental condition of property until date of tax sale, trial judge properly refused to rescind purchase, since there were no facts to support fraud claim. FAMILY LAW 20-2-2822 In the Matter of M/M Q, App. Div. (7 pp.) DYFS director properly denied parties’ application for approval as regular foster parents, since, if the parties had not already been temporarily watching two children who were doing well, parties would not have been granted temporary status, because of their DYFS histories and past criminal records. 20-2-2823 Michael Positino v. Mary Positino, App. Div. (6 pp.) Trial judge erred in requiring husband to pay wife’s attorney fees, since judge’s finding that wife could not pay counsel fees was totally unsupported by the record. INSURANCE 23-2-2824 John Vastardis v. John Zanikos, et al., App. Div. (11 pp.) Where tenants’ diner was damaged in a fire and landlord claimed benefit from tenant’s insurance proceeds, trial court properly held that landlord was not entitled to any policy proceeds, since (1) landlord was not named as an additional insured, (2) and lease did not require landlord to be named as an additional insured. INSURANCE – AUTOMOBILES 23-2-2825 Javier A. Laguna and Martha L. Laguna v. Frederick Jones and John Goodman, App. Div. (4 pp.) Where defendant – - whose vehicle struck plantiff’s vehicle, injuring plaintiff — failed to notify insurance carrier that defendant’s mother rather than defendant had been served, and default judgment was entered against defendant, trial court erred in not granting defendant’s motion to vacate default judgment since there was evidence of excusable neglect; for example, defendant’s insurer reasonably believed that defendant had never been served with process. 23-2-2826 Steven Lehrhoff and Arthur H. Lehrhoff v. The Aetna Casualty and Surety Co., App. Div. (13 pp.) Where insured’s son, who had a California driver’s license, was injured while walking across a California street during probationary period for California job, and son sued for UM benefits under policy covering insured’s car registered in New Jersey that son was driving in California, trial court erred in disclaiming coverage for son, since son is entitled to coverage since he was included on the policy declaration page as a driver of insured vehicle. LABOR AND EMPLOYMENT – EDUCATION 25-2-2827 Blossom S. Nissman v. Board of Education of the Township of Long Beach Island, Ocean County, App. Div. (16 pp. incl. concurrence) Where school principal who was terminated claimed that she could not be fired because she had acquired tenure when the board allowed her to work until the end of August, board properly determined that principal’s application was timed barred, since principal failed to file claim within 90 days of board’s final action, under applicable statutes. LAND USE 26-3-2828 George M. Dilts and Judith S. Dilts v. Franklin Township Planning Board, Law Div. (16 pp.) Where plaintiffs and neighbors, whose farmland was part of state- and municipally- approved farmland preservation programs, pursuant to statute obtained approval from the State Agricultural Development Committee and the Hunterdon County Agricultural Board to sell tracts of their land to a third party to establish a nursery, township planning board went beyond the scope of its authority in not approving application, since state and county agencies previously approved application. [Approved for publication on March 11, 1994] 26-3-2829 Manalapan Realty, L.P. v. Township Committee of the Township of Manalapan and the Township of Manalapan, et al., App. Div. (24 pp. incl. dissent) Where landowner applied to planning board for mall expansion approval, and because of substantial public opposition to opening of a Home Depot store, board amended zoning ordinance to exclude a store which sells or displays materials outside a completely closed building, trial court erred in holding that ordinance was arbitrary and capricious, since the board’s decision was consistent with municipal land use law and township’s master plan. MUNICIPAL LAW – TORTS 30-2-2830 Andan Perez, et al. v. Hippolito Rivera and Juana Rivera and City of Paterson, et al., App. Div. (5 pp.) Even though infant- plaintiff was injured when he walked off an outdoor porch of six-family house where he lived, and before accident, city inspector determined that porch was in “very dangerous condition” about which city did not warn residents, trial judge correctly determined that city and its employees were immune from suit under Tort Claims Act. PUBLIC EMPLOYEES 33-2-2831 F. William Mitchell v. City of Somers Point and Diane R. Hesley, App. Div. (11 pp.) Where township made tax assessor’s job a full-time position, and plaintiff who had been working part-time as tax assessor refused full-time offer, trial court properly held that township had absolute authority to make tax assessor job a full-time position, provided decision was not politically motivated or motivated by bad faith. PUBLIC EMPLOYEES – TORTS 33-1-2832 James Boyer, et al., v. Anchor Disposal, et al., Sup. Ct. (17 pp. incl. concurrence) Where Atlantic City firefighter fell on a slippery surface while inspecting a shopping mall for fire-code violations, the Court did not expand the firefighters’ rule to insulate from liability the creator of general risks beyond inevitable hazards involved in firefighting. [Decided March 14, 1994] REAL ESTATE – CONTRACTS 34-2-2833 Manuel P. Mercier and Mary Ann P. Mercier v. William P. Darrow and Margaret P. Darrow, App. Div. (6 pp.) Where sale-contract for purchase of restaurant and land by plaintiffs from defendants contained a mortgage-contingency clause specifying that plaintiffs had 45 days to obtain mortgage, which parties verbally extended, trial court properly held that plaintiffs were entitled to return of their deposit money, since plaintiffs, despite good-faith effort, failed to timely obtain a mortgage. 34-2-2834 Westville Fire Department, Inc. v. Paul F. Devine, App. Div. (13 pp.) Where defendant-buyer breached real estate purchase with plaintiff-seller, trial court erred in calculating damages, since the judge failed to consider declining real estate prices, “the measure is not contract price less value at time of breach, but rather the resale price, if it is reasonable as to time, method, manner, place and terms.” CRIMINAL LAW AND PROCEDURE 14-2-2835 State v. Aston Dale, App. Div. (6 pp.) Where after pick-up truck in which defendant was a passenger sped away, knocking down a police officer, and then was chased by seven police cars, and handgun was found when defendant was patted down, trial judge erred in suppressing handgun when he held that under the totality of the circumstances, defendant presented no threat, since after such a violent attempted escape, police officers had reasonable concern for their safety to warrant the search. 14-2-2836 State v. Carl H. Hendrickson, App. Div. (7 pp.) Where, after fight with his mother, defendant grabbed knife from kitchen drawer as police officers chased him, trial judge erred in instructing jury about defendant’s possession of the knife, since the charge failed to address whether the defendant had the knife to protect himself from the police officers, depriving the jury of necessary information to make an informed decision on the element of purpose regarding the knife-possession charge. 14-2-2837 State v. Denise Rozzelle, App. Div. (4 pp.) Where defendant was convicted of possession of a controlled dangerous substance with intent to distribute, and jurors in jury room all had examined a police report that had not been marked in evidence, trial judge erred in denying defendant’s mistrial motion, since where a jury considers evidence not properly admitted at trial, a defendant has been deprived of the constitutional right of confrontation.

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