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Vol. 2, No. 40 DECISIONS ISSUED MARCH 10, 1994 ADMINISTRATIVE LAW AND PROCEDURE – AUTOMOBILES 01-2-2796 Arthur Rosen v. Department of Law and Public Safety, Division of Motor Vehicles, App. Div. (6 pp.) Where driver who was convicted of speeding several times had his license suspended for 90 days and then 180 days while his driving privilege already was on probation and he had waived prior hearing requests, division properly denied his hearing request and finalized suspension determinations, since where there are no disputed issues of material fact, an administrative agency need not hold an evidentiary hearing in a contested case. FAMILY LAW 20-2-2797 Robert M. Browne v. Cecilia Sparagna-Browne, App. Div. (7 pp.) Trial court erred in reducing wife’s child support payments and contributions for college expenses, since trial court only considered wife’s tax returns where wife is self- employed and tax returns of self-employed people do not necessarily indicate their true income, because of various tax considerations. 20-2-2798 Arlene Migliore v. Salvatore J. Migliore, App. Div. (17 pp.) Where husband’s construction company had been dissolved by time of divorce trial, trial judge, pursuant to pertinent case law, properly determined value of husband’s share in construction business at time divorce complaint was filed rather than at the time of the trial, since at the dissolution, company had significant assets. INSURANCE – AUTOMOBILES 23-2-2799 Jean Puso v. John Kenyon, et al., App. Div. (17 pp.) Where plaintiff sustained soft-tissue injuries and a five- centimeter scar behind her right knee from automobile accident, trial court erred in dismissing plaintiff’s complaint for failure to meet verbal threshold criteria, since it was not clear from record whether trial judge actually examined plaintiff’s scar or authenticated pictures of the scar. INSURANCE – HEALTH 23-2-2800 Linda B. Dunn v. Donald E. Praiss, M.D. and Martha Brumbaugh, M.D., et al., Where claims of decedent’s wife against health maintenance organization were reinstated during re-trial of medical malpractice action, trial court erred in failing to reinstate treating physician’s cross-claims against HMO under joint tortfeasors contribution law, since it was inequitable to reinstate wife’s claims and not doctor’s cross-claims. LABOR AND EMPLOYMENT – HEALTH 25-2-2801 Raymond Haworth v. Deborah Heart and Lung Center and Betsy Schloo, M.D. and Peter Ward, individually, App. Div. (6 pp.) Where former hospital blood bank supervisor intentionally destroyed blood samples to show his objection to hospital’s supposed defective blood identification practices, which he never told anyone about, and claimed wrongful termination under Conscientious Employee Protection Act, trial court properly held that supervisor’s destruction of blood samples was not protected under the act, since (1) he could have taken less drastic means to voice protest, and (2) hospital had offered him another position which he refused. PUBLIC EMPLOYEES 33-2-2802 Laura A. Cibula and Garth Conover v. City of New Brunswick and James V. Gassaro, App. Div. (14 pp.) Where police director’s mail fraud conviction was dismissed and he was reinstated as police director, and then citizens brought suit claiming that the city and the police director had violated statutes when police director’s reinstatement was authorized and city had paid for his defense, trial court erred in holding that police director had to reimburse city for counsel fees, since trial judge failed to consider pertinent case law and statutes. TORTS 36-2-2803 Howard Fonseca v. International House of Pancakes and Parsippany House Of Pancakes v. Michael Thorpe, App. Div. (5 pp.) Where plaintiff was injured when he accompanied nephew, an independent contractor, to make repairs at defendant-restaurant, trial court erred in dismissing plaintiff’s complaint on the basis that plaintiff, a business invitee, had exceeded scope of his invitation and was owed no further duty, since (1) even if plaintiff had exceeded scope of his invitation, he was still owed some duty, and (2) question of whether plaintiff exceeded scope of invitation is usually a jury question. TORTS – REAL ESTATE 36-2-2804 Cynthia Quenet v. Carol Revolinsky, et al., App. Div. (20 pp.) Where tenant was killed in an electrical fire in a condominium unit he rented and tenant’s estate sued, among others, owner who designed condominium building renovation, trial court erred in dismissing tenant’s complaint, since factual questions existed if owner negligently designed renovations. CRIMINAL LAW AND PROCEDURE 14-2-2805 State v. Ariel Fernandez, App. Div. (7 pp.) Where defendant was convicted of sexual assault, and defense counsel wanted to introduce evidence about victim’s sexual relationship with her boyfriend to support defense theory that victim was angry with boyfriend and agreed to sleep with defendant, trial court properly excluded such evidence, since risk of admission outweighed probative value, under rape shield law, N.J.S.A. 2C:4-7 and N.J.R.E. 403. 14-2-2806 State v. Roberto Rivera, App. Div. (13 pp.) Where defendant was charged with murder, trial court’s instruction regarding murder and passion/provocation manslaughter constituted reversible error, since trial judge failed to explain to jury that state bears burden of proving beyond a reasonable doubt the absence of passion/provocation as an integral part of murder instruction.

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