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Vol. 2, No. 59 DECISIONS ISSUED APRIL 7, 1994 ATTORNEY/CLIENT 04-2-3008 Allis Constr. and Mining Equip. Corp. v. Terex Corp., App. Div. (11 pp.) Even though plaintiff and defense counsel would not follow trial judge’s discovery scheduling order and argued about discovery, trial judge erred when dismissing plaintiff’s complaint with prejudice for failure to provide discovery, since circumstances did not warrant such an extreme sanction. 04-2-3009 George Lees v. Sands of Ventnor, App. Div. (5 pp.) Where plaintiff’s front and rear windshields were damaged when stones blew off defendant/condominium’s roof and defense counsel did not receive complaint until four days before trial, small claims court erred in entering judgment against defendant after denying defense counsel’s adjournment request, since defense counsel requested adjournment from court in a timely manner, and decision prejudiced defendant. EDUCATION – PUBLIC EMPLOYEE 16-2-3010 Hunterdon Central Regional High School Dist. Bd. of Educ. v. Hunterdon Central Regional High School Educ. Ass’n, App. Div. (14 pp.) Where teacher turned plastic bag over to school principal that contained a substance that smelled like glue months after students had sniffed glue at wrestling clinic at which teacher was a chaperone, arbitrator erred in overruling board of education’s decision to reprimand teacher for not promptly reporting incident, since teacher’s violation of statutory law, regulations and school-board policy were clearly established. FAMILY LAW 20-2-3011 John Henry Oswald, II v. Bonni Masi Oswald, App. Div. (6 pp.) Where husband wanted court to reconsider child-support orders and unpaid child support, trial court (1) properly affirmed all prior child-support orders, (2) but erred in setting emancipation date of oldest child at his 23rd birthday, since pursuant to property-settlement agreement children would be emancipated after college graduation, and oldest child had already graduated from college. 20-1-3012 In the Matter of M.R., Sup Ct. (35 pp.) Where plaintiff, a developmentally disabled woman, who had resided with her divorced mother, decided on her 18th birthday that she wanted to live with her father, the state Supreme Court remanded the case to chancery court to determine the following with regard to the father’s challenge: (1) if plaintiff still expressed a desire to live with her father, then mother had the burden of proving by clear and convincing evidence that plaintiff was incompetent to make the decision; and (2) if court found that plaintiff lacked capacity to decide where to live, then father would bear the burden to prove that it would be in plaintiff’s best interest to live with him. HEALTH – GOVERNMENT 22-2-3013 Axiom Review v. Barnert Memorial Hosp, et al., App. Div. 23 pp.) Where in 1978, diagnosis-related group method of payment or reimbursement to hospitals for inpatient care was adopted, and also utilization review organizations (UROs) were established to ensure that hospital services performed were necessary and of high quality; and in 1992 some of the pertinent provisions were repealed, in appeals focusing on whether hospitals were required to permit state-qualified UROs to conduct reviews, assistant commissioner of health properly held that state-qualified UROs and the requirement that hospitals pay for their services were limited to 1993 transition year, since the commissioner’s decisions were based on a careful review of regulations and carrying out of department’s enforcement functions. 22-2-3014 Newark Beth Israel Medical Center v. Div. of Medical Assistance and Health Servs., App. Div. (11 pp.) Where (1) patient’s private insurer reimbursed plaintiff for medical services almost a year after patient was hospitalized because of billing problems, (2) and Medicaid would not pay hospital because claim was filed one year after date of service, division properly denied plaintiff’s Medicaid reimbursement request, since federal and state regulations are clear regarding one-year filing limitation and do not allow the deadline to be waived. INSURANCE 23-2-3015 Reese Palley Trust, et al. v. Bruce Shore, et al. and Anelina Shore, Fleet Bank, City of Atlantic City and Altman and Altman, App. Div. (4 pp.) Where plaintiff was successor mortgagee on property that was damaged in a fire, and was named as additional insured on fire insurance policy, trial court properly determined that plaintiff was entitled to insurance proceeds up to the mortgage balance, since because of plaintiff’s status as an additional insured, insurer had a direct contract with plaintiff, entitling plaintiff to proceeds. INSURANCE – AUTOMOBILES 23-2-3016 Marie E. Avril v. Fred Nardi, App. Div. (3 pp.) Where plaintiff had muscle spasms in her back from injuries sustained in an automobile accident, trial court properly dismissed plaintiff’s complaint for failure to meet verbal-threshold criteria, since doctor’s report indicated that plaintiff had only an eight percent impairment of use. LANDLORD/TENANT 27-2-3017 Cathy Cardillo v. Hoboken Rent Leveling And Stabilization Board, and Wayne and Kit Chau, et al., App. Div. (11 pp.) Where for several years tenant was charged more rent than was permitted under rent-control ordinance, trial court erred under the doctrine of laches in limiting plaintiff’s rental rebate to the year that she filed for the refund, since plaintiff filed complaint shortly after she knew she was being overcharged, and statute provides that tenant must be reimbursed for overpayment. 27-2-3018 Hugh A. McGuire v. City of Jersey City, App. Div. (8 pp.) Where defendant tenant breached its lease agreement with plaintiff landlord, trial judge properly calculated damages for lost rental profits from lease commencement to closing on property sale, since decision complied with state Supreme Court’s rulings. TORTS – CONTRACTS 36-2-3019 John Arno and Rita Arno v. The County of Bergen, Bergen County Vocational Technical High School, App. Div. (6 pp.) Where plaintiff was injured when he fell into the unlighted school auditorium orchestra pit while delivering scenery for group that was renting auditorium, trial court erred in dismissing plaintiff’s complaint by holding that it was not a “dangerous condition” under N.J.S.A. 59:4-1(a), since discovery was incomplete. CRIMINAL LAW AND PROCEDURE 14-2-3020 State v. Lionel Dinerstein, App. Div. (17 pp.) Where defendant — who was convicted of conspiracy to commit armed robbery and aiding and abetting armed robbery for telling robber that victims were an easy mark — had worked for and knew victims for about 45 years, trial court erred in failing to disclose robber’s full record and benefits robber would receive for cooperating with the police, since defendant could have used the suppressed evidence to impeach the robbber, who was the state’s key witness, which could have affected trial outcome. 14-2-3021 State v. Andre Jerome Thomas, App. Div. (6 pp.) Where in municipal court defendant was convicted of possessing a controlled dangerous substance with intent to distribute, and in Superior Court defendant pled guilty to possession of marijuana with intent to distribute arising from same incident, Superior Court properly rejected defendant’s claim of double jeopardy, since first conviction was for a non-indictable offense which could not have been joined with the criminal proceeding in the Law Division, because R. 3:15-3(a) requiring joinder had not as yet been enacted. 14-2-3022 State v. Yolanda Thompson, App. Div. (19 pp.) Where defendant stabbed victim after they had gotten into an argument, trial court properly denied defendant’s request for a self-defense charge in jury instructions, since there was no showing that defendant had a reasonable belief that the use of force was necessary to protect her from unlawful force by victim.

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