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VOL. 2 NO. 75 DECISIONS RELEASED APRIL 29, 1994 DEBTOR/CREDITOR – CIVIL PROCEDURE 15-2-3166 Fouad Haddad and Asma Haddad v, Arthur Jones, Arthur R. Jones, Sophie Jones, et al., App. Div. (8 pp.) Where plaintiffs loaned defendants’ company money that defendants personally guarantied, and plaintiffs served nonpayment complaint on all the defendants personally, trial court properly denied defendants’ motion to vacate a default judgment for failure to comply with deposition notices and other discovery demands, since defendants’ actions did not constitute excusable neglect. LABOR AND EMPLOYMENT 25-2-3167 Elizabeth Lee v. Hoffmann-La Roche, Inc., App. Div. (11 pp.) Where plaintiff former-employee sued defendant former-employer for wrongful termination, trial court erred in granting defendant’s involuntary dismissal motion at the close of plaintiff’s evidence, since plaintiff presented sufficient proof to withstand the motion, because evidence showed that plaintiff asked supervisors why patients’ adverse reactions to an experimental drug were not included in reports. LABOR AND EMPLOYMENT – CONTRACTS 25-2-3168 Trans American Trucking Serv., Inc., et al., v. Kevin T. Ruane, et al., App. Div. (5 pp.) Where, while still working for plaintiff/trucking company, defendant asked plaintiff’s client if he could provide trucking services for it after he started his own trucking business, trial court properly enjoined defendant and his trucking company from doing business with plaintiff’s client for 19 months, since (1) defendant violated the duty of loyalty that he owed to his plaintiff, and (2) the time prohibiting soliitation set by the trial judge was not so unreasonable that the appellate court would substitute its judgment for the trial judge’s. LABOR AND EMPLOYMENT – HEALTH – PUBLIC EMPLOYEES 25-2-3169 Milton Fineman V. New Jersey Dep’t of Human Servs., et al., App. Div. (29 pp.) Where plaintiff, a physician specialist, was terminated for refusing to provide temporary-medical care to facility residents other than to those that he had been assigned initially, trial court erred in entering a judgment for plaintiff under the Conscientious Employee Protection Act, since no statute, regulation or clear public policy mandate supported an objectively reasonable belief that plaintiff’s refusal to treat patents was warranted. LAND USE 26-3-3170 Kingwood Township Volunteer Fire Co. Number One and Bell Atlantic Mobile Sys., Inc. v. Bd. of Adjustment of the Township of Kingwood, et al., Law Div. (17 pp.) Where plaintiff fire company applied for a use variance to replace an existing nonconforming use, a 75-foot tower, with a larger 197-foot tower, board erred in denying application, since (1) the tower was an inherently beneficial use, (2) the positive criteria or special reasons under N.J.S.A. 40:55D-70(d)(2) were satisfied, and (3) the negative impact would not cause a substantial detriment to the public under the four-prong test of Sica v. Bd. of Adjustment of the Tp. of Wall, et al., 127 N.J. 152 (1992) 26-2-3171 Roger and Claire Passarella/Baybridge Assocs. v. Township of Wall Zoning Bd. of Adjustment, App. Div. (6 pp.) Where board, after clarifying ordinance at plaintiffs’ request, allowed plaintiffs to file application for use variances late, trial court erred in dismissing plaintiffs’ complaint in lieu of prerogative writs on the ground that it was untimely filed, since board’s written decision did not clearly set forth time parameters for plaintiffs to file application. REAL ESTATE – CONTRACTS 34-2-3172 Richard J. Albigese v. Health Quest Realty XXV, et al., App. Div. (27 pp.) Where defendant realty company sold 40 acres to to plaintiff buyer, who initially had seven months to obtain necessary approvals but could get time extensions from the defendant for an additional $100,000, and plaintiff unsuccessfully tried to obtain approvals for four years, trial court properly held that (1) defendant could enforce the contract, since it was clear and unambiguous, and (2) plaintiff’s failure to perform resulted in forfeiture under the contract of all monies paid to defendant, since the doctrines of impossibility and frustration did not apply because it was still possible for plaintiff to purchase the property from defendant and build homes on it. CRIMINAL LAW AND PROCEDURE 14-2-3173 State v. Joseph Leon Haliski, App. Div. (12 pp. incl. concurrence) Where defendant during his second conviction of first-degree armed robbery was not subject to a mandated extended prison term because his previous armed robbery with a firearm conviction was on appeal at the time and could not be considered in the sentencing, but subsequently the first conviction was affirmed, on remand trial court properly considered affirmed first conviction in sentencing defendant to an extended prison term for the second conviction, since this followed the legislative intent. 14-2-3174 State v. Andrew L. Marcus, App. Div. (6 pp.) Where during grand-jury hearing witness testified that the defendant had a prior drunk-driving conviction, and grand jury indicted defendant for second-degree aggravated assault by reckless driving, trial court erred in dismissing the indictment, since (1) a grand juror asked the question which elicited the witness’s objectionable testimony, and (2) the prosecutor’s curative instructions removed any prejudicial effect the testimony may have caused. 14-2-3175 State v. John G. Raps, App. Div. (12 pp.) Where in municipal court defendant pled guilty to operating a motor vehicle under the influence of liquor or drugs, trial court properly held that the Breathalyzer results did not have to be suppressed (as defendant alleged because Breathalyzer inspection procedures are not described in the statutes or regulations and do not set forth specific time intervals for inspections to be conducted), since there was no evidence demonstrating that the equipment was in any way unreliable and the court found no reason to exclude the test results even though there are no specific regulations pertaining to Breathalyzer inspections; still, the court asked the Attorney General to adopt more specific regulations regarding Breathalyzer equipment testing. 14-2-3176 State v. Paul Verderamo, App. Div. (3 pp.) Where defendant was convicted of an attempt to cause bodily injury for pushing a store clerk after she ordered him out of her store and had tried to grab his telephone number list, after he called adult telephone services on the store phone, trial court erred in convicting him, since state did not prove that defendant wanted to harm the store clerk; the court found that defendant just may have wanted to deflect clerk’s attempts to grab his list.

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