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VOL. 2 NO. 80 DECISIONS RELEASED MAY 6, 1994 CONDEMNATION – CONSTITUTIONAL LAW 44-2-3218 1331 Ocean Avenue Sea Bright, Inc., v. State, et al., App. Div. (13 pp.) Where plaintiff sued the defendants for unjust taking of its property, after the state Department of Environmental Protection and Energy’s jurisdiction under the Waterfront Development Act was expanded to include upland coastal areas, which prohibited the plaintiff from building townhouses on its waterfront property, trial court properly dismissed plaintiff’s claims, since (1) impairment of the marketability of land alone does not constitute a taking or inverse condemnation, and (2) plaintiff always was able to continue using the property for its existing use. CONTRACTS 11-2-3219 Irving Tobin v. Burt S. Abramson, D.D.S., et al., App. Div. (3 pp.) Where accountant sued defendants for money that he was owed for his services for 1985-86, trial court properly held that the accountant’s 1992 complaint was not late even though it was filed six years after the problem arose, since the accountant had agreed to wait to demand payment until an IRS penalty was resolved in 1987, relating to returns the accountant prepared. INSURANCE/AUTOMOBILES 23-2-3220 Danay Cavanaugh and Thomas Cavanaugh v. Stephen J. Morris, et al., App. Div. (5 pp.) Where plaintiff suffered from headaches, numbness in her left arm, and back and leg pains from injuries sustained in an automobile accident, trial court erred in dismissing her complaint for failure to meet verbal-threshold criteria, since she could no longer work as a waitress because of hip and knee problems. 23-2-3221 Debra A. Finch, et al., v. Dorothy E. McAndrews, et al., and CSC Ins. Servs. v. Automate Auto Rental v. State Farm Mut. Auto. Ins. Co., App. Div. (4 pp.) Where plaintiff was involved in an accident with an automobile that defendant McAndrews had leased from defendant rental agency, trial court properly limited recovery under rental agency’s self-insurance, since (1) there was a liability limitation in the automobile rental agreement between the rental agency and McAndrews, and (2) based on the holding in Agency Rent-A-Car, Inc. v. Indem Ins. Co. of N. Am., 268 N.J. Super. 319 (App. Div. 1993). 23-2-3222 Carmen Nerio v. Francisco B. Paragas, et al. and Manuel Nerio v. Francisco B. Paragas, et al., App. Div. (7 pp.) Where both plaintiffs’ backs were injured in an automobile accident, trial court erred in dismissing their complaints for failure to meet verbal-threshold criteria, since (1) Carmen Nerio needed help in caring for her children and could no longer work as a machine operator, because the job entailed lifting, bending and stretching, and (2) Manuel Nerio’s job performance was affected, and he no longer did household chores and participated in recreational activities. JURISDICTION – TORTS 24-2-3223 Fran Grossman v. Club Med Sales, Inc., App. Div. (13 pp.) Where plaintiff was sexually assaulted by a strange man in her room at defendant resort in the Turks and Caicos Islands, trial court erred in applying the law of the Turks and Caicos Islands in her damages suit, since under the choice-of-law analysis, there was no substantial difference in the law of both jurisdictions, New Jersey law should be applied regarding an innkeeper’s duty. LABOR AND EMPLOYMENT – CIVIL RIGHTS 25-2-3224 Nestor Lorenzo v. The Prudential Ins. of Am., et al., App. Div. (4 pp.) Where plaintiff/former employee in a suit against defendant/former employer alleged that he was fired and harassed because of his race and national origin under the LAD, and his termination was upheld in union grievance proceedings, trial court properly dismissed plaintiff’s complaint for late filing, since (1) the six-year statute of limitations began to run the day the plaintiff first received his termination notice and not on his last day of work, and (2) a pending union grievance proceeding does not toll the running of the statute. [Released April 19, 1994.] WILLS AND TRUSTS 38-2-3225 Chester County Mut. Ins. Co. v. Monica Hopkins, et al. and Mack and Judith Wynn, App. Div. (8 pp.) Where defendant Monica Hopkins’ husband drowned while trying to get the defendant Wynn’s boat out of a local stream, trial court properly held that plaintiff, Wynn’s homeowner insurance carrier, owed no duty to defend or indemnify, since the accident fell within a policy exclusion. CRIMINAL LAW AND PROCEDURE 14-2-3226 State v. Victor Manuel Filpo, App. Div. (6 pp.) Where defendant pled guilty to third-degree conspiracy to possess cocaine, and possibly faces deportation, which counsel did not tell defendant about, trial court properly denied defendant’s motion to withdraw his guilty plea because of ineffective assistance of counsel, since even if counsel told him about possible deportation, he still probably would have pled guilty, and if tried he almost certainly would have been convicted, based on the evidence. 14-2-3227 State v. Jesse R. Oliver, App. Div. (7 pp.) Where defendant, who was convicted of cocaine possession, would talk to car drivers in a high crime and narcotics area while on his bicycle, then leave his bicycle on the porch of an adjacent house and return to one of the cars, trial court properly denied defendant’s suppression motion, since there was sufficient basis for a pat-down search. 14-2-3228 State v. Robert Turner, App. Div. (5 pp.) Where defendant was convicted of violating an Oceanport Borough ordinance, banning underage drinking in private homes, trial court properly held that the ordinance was illegal, since the ordinance conflicted with and was preempted by the state Code of Criminal Justice. 14-2-3229 State v. Scott Willis, App. Div. (4 pp.) Where defendant, who was convicted of operating a motor vehicle without the owner’s permission, trial court properly found defendant guilty, even though trial court erred in limiting its review to the municipal court record because the review should have been a trial de novo, since the deficiencies were not fatal to defendant’s conviction, and the trial judge conducted a de novo review.

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