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Vol. 2, No. 52 DECISIONS ISSUED MARCH 28, 1994 FAMILY LAW 20-2-2936 In the Matter of Guardianship of J.M.P., App. Div. 8 pp.) Trial court properly terminated parental rights of J.M.P.’s biological father, but erred in granting father visitation rights even after child was adopted, since court determining an application for termination of parental rights has no authority to restrict any subsequent adoption terms. 20-2-2937 Patricia J. Stryzek v. John Martorana, App. Div. (21 pp.) Trial court erred in denying wife’s motion for counsel fees and increased child support, since court did not have sufficient evidence before it to determine whether the wife’s circumstances had changed to warrant relief sought. LANDLORD/TENANT 27-2-2938 John S. Harrison v. William J. Zelko, Jr., App. Div. (7 pp.) Where tenant occupied an apartment in a barn on same property as landlord’s house, and where the other apartment in the barn was not a rental unit and had always been used as servant’s quarters, landlord could evict tenant without good cause — upon serving notice to vacate — and trial court erred in holding that good cause was required based on a finding that premises contained two or more rental units. LAND USE 26-2-2939 Mobil Oil Corp. v Fort Lee Zoning Bd. of Adjustment, and Borough of Fort Lee and Loretta Roraback, App. Div. (19 pp.) Trial judge erred in invalidating sections of Fort Lee’s zoning ordinance and in ordering grant of a variance to Mobil to replace small gas station with a larger one and a convenience store, since trial judge did not comply with proper standards for review: whether board’s decision was arbitrary, unreasonable or capricious. 26-2-2940 James Nemeth v. Jose & Lucrecia Villanueva, App. Div. (5 pp.) Where addition to defendants’ house extended for about two feet onto plaintiff’s property, trial court properly held that (1) there was an encroachment, and (2) that plaintiff was not guilty of laches, since even though plaintiff filed law suit after addition had been completed, plaintiff had told defendants many times that addition would encroach on his property. PHYSICIAN/PATIENT – CIVIL PROCEDURE 29-2-2941 Sonia Finnen, et al. v. Gerardo Pis-Lopez, M.D., et al., App. Div. (7 pp.) Trial court properly dismissed medical malpractice complaint that plaintiff-mother had filed pro se for her deceased son against defendant-doctor, since mother was not a real party to the action, pursuant to R. 1:21-1. PUBLIC EMPLOYEES 33-2-2942 Michael Gabbianelli v. Township of Monroe, App. Div. (8 pp.) Where plaintiff-police officer prevailed in disciplinary proceedings instituted by township, trial court properly dismissed police officer’s complaint against township for payment of attorney’s fees, since police officer was not entitled to reimbursement under N.J.S.A. 40A:14-155. TORTS 36-2-2943 John H. O’Brien, et al. v. Dakota Real Estate Co., et al., and William Lipkin, App. Div. (7 pp.) Where tenant-child died from injuries that he sustained near a work site in apartment complex, and United States district judge appointed defendant-Lipkin apartment-complex receiver, trial judge properly dismissed complaint against Lipkin, since the scope of receiver’s power is defined by court order, and under federal court order, Lipkin’s authority did not include maintenance. WORKERS’ COMPENSATION 39-2-2944 Gary Martin v. Frederick and Diane Pollard, App. Div. (8 pp.) Where plaintiff-tenant was injured while painting his landlord’s summer cottage, workers’ compensation judge erred in holding that tenant was landlord’s employee within meaning of N.J.S.A. 34:15-36, since tenant was an independent contractor, either under the control test or relative-nature-of- the-work test. CRIMINAL LAW AND PROCEDURE 14-2-2945 State v. G.W.C., App. Div. (9 pp.) Where defendant was convicted of aggravated sexual assault, trial judge properly allowed handicapped and mentally retarded victim to testify at trial by way of closed-circuit television, since trial judge’s detailed decision complied with provisions of N.J.S.A. 2A:84A- 32.4. 14-2-2946 State v. Akin Laguda, App. Div. (7 pp.) Where wife had obtained restraining order barring husband from having any contact with her, and husband was convicted of simple assault, trial court properly allowed evidence of prior-bad acts that husband had committed against wife, since testimony was admitted to demonstrate defendant’s state of mind. 14-2-2947 State v. Tariq Muhammad, App. Div. (4 pp.) Where defendant was convicted of aggravated sexual assault, trial court erred in dismissing plaintiff’s post-conviction claim for ineffective assistance of counsel on basis that it was not made on direct appeal, since where defendant’s claim required development of facts not appearing in trial record, a post- conviction application was an appropriate means of pursuing claim. 14-2-2948 State in the Interest of P.V.S., a Juvenile, App. Div. (7 pp.) Trial court erred in holding that defendant committed aggravated assault, instead of simple assault, since for a defendant to be convicted of aggravated sexual assault the injuries caused must be serious, and trial court found that victim’s injuries were not serious.

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