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Vol. 2, No. 83 DECISIONS ISSUED MAY 11, 1994 FAMILY LAW 20-4-3257 Madeline Schwarcz v. Izhar Zik, Ch. Div. (6 pp.) Israeli court’s judgments for child support, distribution of marital assets, and counsel fees are enforceable in New Jersey under principles of comity, since Israeli court had jurisdiction over the parties and the subject matter, there was no suggestion of fraud, and no part of the orders run afoul of New Jersey public policy. [Decided June 30, 1993; approved May 9, 1994.] LAND USE 26-2-3258 Tonnelle Avenue Books & Video, Inc. v. Township of North Bergen et al., App. Div. (11 pp.) Municipal zoning board properly denied application for use variance by retailer of sexually explicit videos, paraphernalia, and adult novelty items where there was evidence of record in the form of testimony by a licensed professional planner that (1) conforming uses predominated on the applicant’s side of the avenue that formed a divider between zones and (2) retail use, in his opinion, would be inconsistent with the quantity of light industrial development on that side. REAL ESTATE 34-3-3259 Harry Bassford v. Trico Mortgage Co., Inc., Law Div. (10 pp.) Contract executed at auction of real property is binding on the purchaser even though the attorney-review clause has been intentionally deleted, since no real estate broker is involved in the transaction and thus the contract falls outside the scope of the State Bar Association requirement for attorney review. [Decided April 2, 1993; approved for publication May 6, 1994.] 34-2-3260 Colonial Realty Development Corp. v. Hing Quan Lum and Debra Lum, App. Div. (12 pp.) Summary judgment for developer in suit over buyers’ failure to close pursuant to a time-of-the- essence letter was reversed, since genuine issues of fact material to liability were raised as to (1) whether there was an oral waiver of the letter, (2) whether parties had orally agreed to defer the closing to permit the developer’s attorney to seek releases from existing mortgage holders, and (3) whether there was an act of bad faith and an anticipatory breach or repudiation of the contract of sale on the part of the developer. TAX 35-2-3261 New Jersey Transit Corporation v. Borough of Somerville, App. Div. (4 pp.) Although 10-year statute of limitations of N.J.S.A. 2A:14-1.2 does not apply to real property tax appeals, principles of preemption require that federal statute, 45 U.S.C.A. 581(c)(5), which exempts NJT’s property from state and local taxation, be applied retroactively to Oct. 1, 1981 and that tax appeals filed after that date may not be deemed out of time under N.J.S.A. 54:3-21. TORTS 36-3-3262 Arnold Koster et al. v. Scotch Associates, Charlie O’s, et al., Law Div. (12 pp.) Restaurant serving plaintiffs food that was not reasonably fit, suitable or safe, and which caused plaintiffs to suffer food poisoning from salmonella, is strictly liable under (1) the Uniform Commercial Code, (2) the adulterated food statute, and (3) the Products Liability Act. [Decided Dec. 3, 1993; approved for publication May 6, 1994.] CRIMINAL LAW AND PROCEDURE 14-2-3263 State v. Ralph Bowser, Law Div. (8 pp.)Enhanced penalty provision for second and subsequent offenses under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-30, does not apply to an individual who has been simultaneously convicted of multiple nonindictable domestic violence contempts that occurred on separate occasions. [Decided Dec. 13, 1993; approved for publication May 6, 1994.] 14-2-3264 State v. E.R., App. Div. (18 pp. incl. dissent) Fact that a defendant has a uncontradicted prognosis of imminent death within six months is a factor for a sentencing judge’s discretion in imposing probation rather than incarceration, and judge’s vacating of a judgment of conviction for second-degree crimes in order to impose probation under these circumstances does not violate the presumption of incarceration of N.J.S.A. 2C:44-1d as interpreted in State v. Jabbour, 118 N.J. 1 (1990). 14-2-3265 State v. James Ferguson, App. Div. (18 pp.) Judgment of conviction reversed for youthful offender who was sentenced to an indeterminate term not to exceed 18 years for aggravated manslaughter, since the sentence was in excess of the five-year presumptive sentence of N.J.S.A. 30:4-148 and there was no good cause shown at the time of sentencing to increase it. 14-2-3266 State v. Ralph Johnson; State v. Charles Smith, App. Div. (13 pp.) Questioning of occupants of vehicle stopped for a traffic violation, which produced inconsistent statements that gave the police cause to detain the occupants and secure the vehicle, was not a Miranda violation, since the occupants’ freedom of action had not been curtailed to the extent or degree associated with a formal arrest. 14-2-3267 State v. Ronald J. Lizotte, Law Div. (7 pp.) It was no defense, in municipal court prosecution for driving under the influence of alcohol, that defendant — upon being pulled over for speeding — turned off the ignition and consumed the remaining contents of an open can of beer, since that added ingestion does not destroy the efficacy of the breathalyzer test. [Decided May 13, 1993; approved for publication May 5, 1994.]

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