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VOL. 2, NO. 128 DECISIONS RELEASED JULY 15, 1994 CIVIL PROCEDURE 07-2-3773 Gerald J. Verderame v. Julius Pereira and Westmount Plaza, Inc., t/a The Aspen Manor Hotel, App. Div. (4 pp.) Dismissal of prior lawsuit for malicious prosecution was not with prejudice because an essential element of the claim–termination of a prior criminal action in plaintiff’s favor–had not arisen as of the time of the original action, and therefore the dismissal had not been on the merits; dismissal of current lawsuit on res judicata grounds is reversed. COMMERCIAL TRANSACTIONS/DEBTOR-CREDITOR 08-2-3774 SNET Credit, Inc. v. Freedom Valley Express, Inc.,et al., App. Div. (4 pp.) Lessee and principal owner cannot assert that a lease is unenforceable on the ground that the leased equipment was never delivered to them when they made a false or negligent representation to lessor that the equipment had been delivered; summary judgment in favor of lessor upheld. DEBTOR-CREDITOR/REAL ESTATE 15-2-3775 Valley National Bank v. GVF Properties, et al., App. Div. (7 pp.) Delivery of a deed in lieu of foreclosure to be held in escrow by lender’s attorney does not merge prior mortgages granted on same property, since there was a clear declaration that no merger was intended in the settlement agreement providing for the escrowed deed. Moreover, even though the deed was delivered, lender still could maintain a foreclosure action to clear title. FAMILY LAW 20-2-3776 Richard T. Speck v. Karen Speck, App. Div. (8 pp.) On post-judgment motion, even though both parties stipulated to presentation of only written certifications and exhibits, live testimony was required to establish whether husband was malingering or whether wife is able to maintain on her own the lifestyle she enjoyed during the marriage; case remanded for hearing with live witnesses. LABOR AND EMPLOYMENT 25-2-3777 Jacqueline Blake v. Board of Review, App. Div. (3 pp.) Unemployment benefits should have been granted from the effective date of employee’s termination even though employer later requested that she remain on the job for longer period; while technically she was “not available for work,” she had the right to look for another job in light of the fact that she had been told she would be permanently replaced. LAND USE 26-2-3778 ,In the Matter of Certain Provisions of the Adopted State Dev. Plan, Resource Planning and Management Map, and Related Adopted Documents, App. Div. (7 pp.). The validity of the State Development and Redevelopment Plan is sustained in the face of a challenge by a developer that the State Planning Commission exceeded its authority by adopting its own coastal-area plan rather than simply adopting the CAFRA regulations. 26-2-3779 Gordon Hiltbold et. al v. Planning Board of the Borough of Hasbrouck Heights, App. Div. (7 pp.) N.J.S.A. 27:7-95b does not preempt a municipal body’s power to consider traffic safety and accessibility in the exercise of its zoning and planning control over local development. Planning Board’s denial of subdivision application because the proposed street access would be too narrow now allows plaintiff to reapply to the state Department of Transportation for state highway access on the ground that no alternative access is available. PARENT/CHILD 28-2-3780 New Jersey Division of Youth and Family Services v. S.S. and V.E., et al., App. Div. (10 pp.). The burden-shifting doctrine announced in In the Matter of D.T., which requires that defendants who have access to or custody of an infant during a period when an abuse occurs, come forward and provide evidence of their non-culpability in the abuse of the child, does not violate the Fifth Amendment’s privilege against self-incrimination. PUBLIC EMPLOYEES/LABOR AND EMPLOYMENT 33-2-3781 Mark Ensslin v. Township of North Bergen, App. Div. (27 pp.). Police officer’s termination after ski accident rendered him a paraplegic is not in violation of the Law Against Discrimination because essential functions of even an administrative police job include serving as a back-up police officer, using a weapon, and securing prisoners, for which accomodation was not feasible since department is not required to waive the essential job functions; Merit System Board’s approval of the termination is upheld. Separate Law Division suit brought by plaintiff should have been dismissed on summary judgment on grounds of issue preclusion since the Merit System Board proceeding considered (and rejected) the same LAD issues that plaintiff raised in his Law Division suit. CRIMINAL LAW AND PROCEDURE 14-2-3782 State v. Frank Farina, App. Div. (26 pp.). Because the witness who defendant wanted immunized would testify about facts that were not clearly exculpatory and would have further implicated defendant in the subject crimes rather than exonerate him, appellate court need not decide either (1) whether indictment should have been dismissed for failure of prosecutor to authorize immunity, or (2) whether trial judge should have granted the immunity on its own motion. Moreover, conviction for possession of a firearm without a permit does not merge with the conviction for the crimes the defendant committed with the unlicensed weapon.

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