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Vol. 2, No. 72 DECISIONS ISSUED APRIL 26, 1994 ATTORNEY/CLIENT – NEGLIGENCE 04-2-3136 2175 Lemoine Avenue Corp. v. Finco, Inc. et al., and Finco, Inc. and Germano Valle v. William Wattiker and Karen N. Wattiker, Esq., App. Div. (17 pp.) Where plaintiff sued defendants and obtained a declaration voiding (1) an option given to defendant Finco to purchase a 50 percent interest in the Lemoine Avenue property and (2) a one-half of one-percent interest in defendant 2175 Finco partnership, and, although trial court properly found that Karen Wattiker had committed legal malpractice since finding was supported by substantial credible evidence, trial court erred in awarding defendant Finco damages for the malpractice, since Finco failed to prove that Wattiker’s legal malpractice was a proximate cause of its loss. (See Nos. 3137 and 3140, related opinions.) CORPORATIONS – CONTRACTS 12-2-3137 2175 Lemoine Avenue Corp. v. Finco, Inc. and Germano Valle and 2175 Finco and AmEuro Capital Corp. v. William Wattiker and Karen N. Wattiker, App. Div. (15 pp.) Trial court properly denied plaintiff and defendant William Wattiker’s appeals from a post-judgment order denying their motions to amend pleadings to include additional claims against defendants and third-party plaintiffs, since parties on March 5, 1991, brought another suit seeking same relief which was dismissed; parties did not move to amend the instant complaint until after issues in the case already had been decided in another trial. (See Nos. 3136 and 3140, related opinions). FAMILY LAW – PARENT/CHILD – TORTS – JURISDICTION 20-2-3138 R.B. and R.F. v. D.D.M., App. Div. (7 pp.) Where adult children alleged that father sexually molested them as minors, and had repressed the memories until July 1990, trial court erred in dismissing complaint under forum non conveniens because the case should have been brought in New York where children had lived with parents and key witnesses resided, since if case was brought in New York it would have been barred by the one-year statute-of-limitations, and as such children had no alternate forum. INSURANCE – AUTOMOBILES 23-3-3139 Thomas P. Rogers and New Jersey Mfrs. Ins. Co. v. Snappy Car Rental, Inc and Progressive Casualty Ins. Co., Law Div. (16 pp.) Where plaintiff was involved in an automobile accident with a vehicle that he had leased from defendant rental company, trial court held that plaintiff’s personal insurance company and defendant rental company’s insurer both provided primary coverage, since both policies’ provisions granting only excess coverage for this type of loss were mutually repugnant. (Approved for publication April 25, 1994.) INSURANCE – ATTORNEY/CLIENT 23-2-3140 National Union Fire Ins. Co. of Pittsburgh v. Karen N. Wattiker, Finco, Inc. and Germano Valle and 2175 Lemoine Avenue Corp., 2175 Finco, AmEuro Capital Corp., William Wattiker, and Morgran Stiftung, App. Div. (17 pp.) Trial court erred in holding that plaintiff insurer had to pay Finco damages for the legal-malpractice claims against Karen Wattiker, since defendant Finco failed to prove that legal malpractice was the proximate cause of its loss. (See Nos. 3136 and 3137 related opinions). LANDLORD/TENANT – TORTS 27-2-3141 David Hennis, et al. v. David Schwartz and Miria Maldonado, et al., App. Div. (5 pp.) Where plaintiff was bitten by tenant Maldonado’s dog on premises she leased from landlord Schwartz, trial court properly dismissed complaint against landlord, since landlord did not retain any control over the premises, and did not know that tenant’s dog was vicious. LAND USE 26-3-3142 Alvin Goldstein and Eleanor Goldstein v. Planning Board of the Borough of Barnegat Light, et al.; and Planning Board of the Borough of Barnegat Light v. State of New Jersey Dep’t of Envtl. and Energy, Law Div. (18 pp.) Where borough clerk told plaintiffs when they purchased three property lots that they could build on the two vacant lots, and several years later board did not approve construction because of Chapter XI of its borough code, which prohibited the construction of any residence within a beach-dune area, trial court held that (1) even though borough did not incorporate Chapter XI into its subdivision or zoning ordinances, the borough still could enforce it, since a municipality can use all regulations reasonably related to the use and development of its land, whether or not they are actually contained within the subdivision or zoning ordinances, and (2) board’s effort to impose a suitability standard by applying Chapter XI to the subdivision application was arbitrary and capricious, based on substantial evidence in the record. LAND USE AND ENVIRONMENT 26-1-3143 SMB Assocs. v. New Jersey Dep’t of Envtl. Protection, Sup. Ct. (16 pp. incl. dissent) Where plaintiffs wanted to build an elevated roadway on wetlands for access to a proposed development on an undeveloped bay island, Appellate Division properly held that (1) the Coastal Area Review Board, which Legislature recently abolished, lacked the power to waive the substantive requirements of the Coastal Area Facilities Review Act, since this was not the Legislature’s intent, and (2) a local environmental group had the required standing to challenge the board’s decision, since it had sufficient interests at stake. (Decided April 26, 1994.) CRIMINAL LAW AND PROCEDURE 14-2-3144 State v. D.A.M., App. Div. (17 pp.) Where defendant was found guilty of second-degree sexual assault, trial court properly held that when defendant began talking with law enforcement officers after invoking his right to remain silent, he knowingly, intelligently and voluntarily waived his constitutional rights, since defendant, not the police, began commenting on whether it would be in his best interest to give a tape-recorded statement. 14-4-3145 State in the Interest of N.S., Ch. Div. (7 pp.) Where minor pled guilty to acts that, if committed by an adult, would constitute receiving stolen property (an automobile), chancery judge held that (1) a “review period” under N.J.S.A. 2a:4a- 43b(1) is a disposition, and if it is imposed on a juvenile who stole an automobile, the mandatory sanctions of N.J.S.A. 2A:4A- 43e(1) must also be imposed, and (2) the penalties outlined in N.J.S.A. 2C:20-2.1 cannot be imposed on a juvenile still under the family court’s jurisdiction, since to impose such sanctions would go against legislative intent. 14-2-3146 State v. Paul Serra and New York Carting Co., Inc., App. Div. (12 pp.) Where defendants were convicted of violating the state’s “Little RICO” racketeering statute, N.J.S.A. 2C:41-2c, for dumping waste at illegal landfills in northern New Jersey, defendants’ conviction for multiple conspiracies was proper, since the varied activities of many of the defendants constituted a single cooperative effort toward the common goal of the single illegal enterprise. 14-2-3147 State v. Nicholas J. Visco, App. Div. (4 pp.) Where defendant was convicted of driving while intoxicated, trial court properly rejected defense that defendant’s mouth retained alcohol because of the chemical properties in his dental adhesive, since the expert’s opinion was not supported by sufficient reliable scientific data. 14-2-3148 State v. Brenda J. Wiley, App. Div. (7 pp.) Where defendant was convicted of the purposeful or knowing murders of her brother and mother, trial court properly admitted into evidence defendant’s statement to the police that she had killed them, since the judge determined that defendant had been advised of her Miranda rights and had knowingly, intentionally and voluntarily waived them.

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