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VOL. 2 NO. 84 DECISIONS RELEASED MAY 12, 1994 35-1-3268 1530 Owners Corp. v. Borough of Fort Lee, Sup. Ct. (18 pp.) Where plaintiff taxpayer, a cooperative-apartment building owner, claimed that the 1987 tax assessment was discriminatory because the applicable tax ratio under N.J.S.A. 54:1-35a was invalid since certain sales should not have been included on account of the tax director’s failure to determine whether the sales reflected the market value, tax court properly held that taxpayer failed to meet its burden, since the taxpayer must demonstrate not only that the sale was not at market value, but that its inclusion in the tax calculation skewed the tax ratio. CIVIL PROCEDURE – CONSTITUTIONAL LAW 07-3-3269 Sharon Perry v. Albert J. Brown, et al., Law Div. (13 pp.) Where after numerous attempts to properly serve a summons and complaint upon an uninsured defendant, trial court initially allowed substituted service on the Unsatisfied Claim and Fund Board — which had no way to notify the defendant that he had been served — and default judgement was entered against defendant, trial court held that substituted service was not proper, since the judgment could not bind a defendant who neither had been served properly nor given notice about the pending action, without violating due process. [Approved for publication May 10, 1994.] CORRECTIONS 13-2-3270 Larry Palmer v. D. Calvin Neubert, App. Div. (4 pp.) Where the Institutional Classification Committee (ICC) approved placement of defendant, who was convicted of murder, in a half-way house and Clinton House accepted defendant, but the Parole Board determined that he was ineligible for community release for another seven years, and the ICC denied a second community release application when his eligibility status changed three years later, the ICC erred in denying defendant’s second application, since it failed to provide sufficient findings and conclusions to support its decisions. ENVIRONMENT – LAND USE 17-2-3271 Distributec, Inc. v. New Jersey Dep’t of Envtl. Protection and Energy, Div. of Coastal Resources and Delanco Land Partnership, and the Township of Delanco, App. Div. (17 pp.) Where plaintiff company wanted to build a new port facility for container-cargo vessels, division properly denied company’s application, since the proposed facility did not meet the definition of a port in the Ports Use Rule, N.J.A.C. 7:7e-3.11(a), and did not satisfy the Port Use Rule’s “need” test, pursuant to the holding in Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980), and “compatibility” test, under N.J.A.C. 77E-7.9(d). INSURANCE – AUTOMOBILES 23-3-3272 Hilda Levine v. Peter Miller, Law Div. (8 pp.) Where a prosthetic device permanently implanted in plaintiff’s mouth was fractured from injuries she sustained in an automobile accident, trial court held that plaintiff’s injuries satisfied the verbal- threshold criteria as a serious injury, since plaintiff submitted objective, credible medical findings and the fracture had a serious impact on her life. [Approved for publication May 10, 1994.] INSURANCE – CONTRACT – PHYSICIAN/PATIENT – NEGLIGENCE 23-2-3273 Jonas Brachfeld v. Medical Inter-Ins. Exch. of New Jersey, App. Div. (10 pp.) Where plaintiff doctor, who was an initial investor in defendant medical-malpractice insurer, sued insurer for contract breach and redemption, trial court properly found for insurer, since doctor had waived his right under the contracts because doctor failed to advise insurer that it had breached the offering circular –a contract — by paying dividends before the certificates were redeemed. LABOR AND EMPLOYMENT 25-2-3274 David A. Singer v. Bd. of Review and the Hoover Co., App. Div. (7 pp.) Where employee, who worked full-time for defendant company and was attending college at night, was fired, board erred in denying employee’s application for unemployment benefits, since the N.J.S.A. 43:21-5(i) exception, allowing compensation, is applicable to an employee who is a full-time student during the benefit year and who meets the base-year qualifications, whether as a full-time or a part-time student. PRODUCT LIABILITY – AUTOMOBILES 32-2-3275 Gloria Yun, et al. v. Ford Motor Co., et al., App. Div. (27 pp. incl. concurrence) Where plaintiff’s husband died from injuries he sustained (when he was struck by an automobile while crossing a highway after retrieving a spare tire that had fallen off a mount, installed by co-defendant Universal, on a Ford van rear door), trial court properly dismissed claims against defendants, since it was not reasonably foreseeable to defendants that decedent would twice cross a major highway to go the median to retrieve the parts and be killed by a passing car. PUBLIC EMPLOYEES 33-2-3276 Maureen T. Delunas v. Bd. of Trustees of the Public Employees’ Retirement Sys., App. Div. (6 pp.) Where a Department of Community Affairs multiple-dwellings inspector (who usually completed paperwork at her home or in her car while in the field, because she did not have a primary workplace) was injured when her foot got caught in the well between the brake and accelerator pedal of her car, administrative law judge properly held that inspector’s injury was not caused by a traumatic event or in the course of her work duties, since she was not performing a work-related duty when she was injured. REAL ESTATE – CONTRACTS – UTILITIES 34-3-3277 Maxim Sewerage Corp. v. Monmouth Ridings, Inc., Law Div. (19 pp.) Where defendant real estate developer counterclaimed that plaintiff utility sought to deprive developer of sewer service on terms comparable to other developers who have a “special relationship” with the utility, trial court held that developer’s counterclaim (1) could not be amended to include federal RICO charges, since utility’s alleged activity did not meet the federal RICO requirements of “continuity” — a continuing threat of racketeering activity — and separate “enterprise”, (2) but could include state RICO, since the federal requirements mentioned above are not state RICO requirements. [Approved for publication May 10, 1993.] CRIMINAL LAW AND PROCEDURE 14-2-3278 State v. Tyrone Polk, App. Div. (9 pp.) Where defendant, a sheriff’s officer, was convicted of fourth-degree aggravated assault by knowingly pointing a firearm at his daughter’s boyfriend, and where authorities had the boyfriend phone the daughter to talk about the incident to corroborate his story, trial court properly admitted a tape of the conversation into evidence, even though the judge did not determine whether they were made in circumstances establishing their reliability, under Evid. R. 63(1)(a), since at trial defendant did not question the tape’s reliability. 14-1-3279 State v. Craig Szemple, Sup. Ct. (55 pp. incl. concurrence and dissent) Where state, after it had rested its case in defendant’s murder trial, sought to reopen its case to present two different admissions of guilt that defendant had supposedly made (the first admission was contained in a letter defendant had written to his wife that her father had kept without her permission, and the second admission was made while in jail to a visiting minister), trial court properly held that (1) the marital-communication privilege did not protect the first admission, since a third party’s involvement destroys the privilege, and (2) the priest-penitent privilege did not protect the second admission, since only the minister can waive the privilege, which was drafted to protect the clergy from being compelled to disclose confidences. 14-2-3280 State v. Simon A. Utrera, App. Div. (5 pp.) Where defendant pled guilty to terroristic threats and contempt, which was conditioned on his Pretrial Intervention appeal, PTI director erred in denying defendant’s application, since (1) the prosecutor and trial judge, who accepted the plea, approved the condition of defendant’s PTI appeal, and (2) there is nothing in the PTI guidelines that cuts off a defendant’s PTI appeal when a conditional plea has been entered.

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