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VOL. 2, NO. 123 DECISIONS RELEASED JULY 8, 1994 DEBTOR/CREDITOR 15-2-3709 Barclays Bank, P.L.C. v. Davidson Ave. Assocs., et al., App. Div. (7 pp.) Where, in a dispute over the appointment of a rent receiver related to a mortgage on defendant’s property, trial court erred in holding that mortgagee bank is entitled to the appointment as a matter of contractual right without prior judicial approval, since, notwithstanding a loan document provision, such an appointment is subject to a judge’s review. EDUCATION 16-2-3710 Y.A.L.E. School, Inc. v. State of New Jersey, Dep’t of Educ., et al., App. Div. (13 pp.) Where state audit revealed that school for handicapped students included improper costs in calculating its tuition charges, such as faculty merit salary adjustments, administrative law judge properly affirmed auditor’s findings, since some payments were bonuses and others were fringe benefits, both prohibited under N.J.A.C. 6:4-4(a)(29) AND N.J.A.C. 6:4-4(a)(17). ENVIRONMENT – GOVERNMENT 17-2-3711 Indep. Energy Producers of New Jersey v. New Jersey Dep’t of Envtl. Protection and Energy and Public Serv. Elec. and Gas Co., App. Div. (19 pp.) Where trade association appealed from a DEPE decision granting PSE&G’s air pollution control permits allowing the utility in phase one to upgrade existing plant capacity, and in phase two to build a new plant, the DEPE (1) properly held that an Electric Facility Need Assessment Act certificate of need was not necessary for the phase one permit, based on statutory construction, but (2) erred in granting a conditional air pollution control permit for phase two, since it requires an ENFA certificate of need, under N.J.S.A. 48:7-19. FAMILY LAW 20-2-3712 Rosemary Aman v. Brian Watterson, App. Div. (19 pp.) Where parents initially agreed to have equal custody of their daughter, trial court erred in awarding custody to the father, since the court failed to consider their original joint-custody criteria. 20-2-3713 Rhonda Frankel v. Lee Frankel and Alan J. Cornblatt, App. Div. (7 pp.) Where, before divorce judgment was entered, wife filed a bankruptcy petition, trial court (1) properly ordered the husband to pay part of wife’s counsel fees, since parties by agreement cannot prevent an attorney from applying to the court under R. 4:42-9(a)(1) for fees, and (2) should have bifurcated the matter and entered a partial divorce judgment for the duration of the bankruptcy stay, since bifurcation is allowed in certain cases under the March 3, 1979, state Supreme Court directive at 103 N.J.L.J. Index 249. INSURANCE – AUTOMOBILES 23-2-3714 John Johnstonbaugh and Phyllis Johnstonbaugh v. Liberty Mut. Ins. Co., et al., App. Div. (3 pp.) Where insureds sued insurers to raise the uninsured/underinsured coverage to equal their liability limits, trial court properly dismissed insureds’ complaint, since, absent any specific request for additional information, the insurers fulfilled their duty by mailing the buyer’s guide to the insureds. LANDLORD/TENANT 27-2-3715 Kenneth Bandomer v. Clem Bottone, App. Div. (10 pp.) Where plaintiff landlord, who operated an ice-cream store in part of building, leased restaurant part of building to defendant tenant, and later sued tenant for nonpayment of rent and breach of lease, special civil part properly entered a judgment of possession, since rent was owed, but the matter was remanded to determine whether the tenant was entitled to a post-judgment rent abatement because of a leaking roof. REAL ESTATE – NEGLIGENCE 34-2-3716 Michael Barrese and Donna Barrese v. Blaine Termite Control, Inc., et al., App. Div. (7 pp.) Where home buyers sued defendants, inspection company and home owners, for termite infestation found after closing, trial court erred in not allowing home buyers’ termite expert to testify on rebuttal, on grounds that defendants did not have a report, since defendants would not have been prejudiced by the testimony. TORTS 36-2-3717 Carol Koehl v. Kings Supermarket, Inc. and Campbell Soup Co., App. Div. (6 pp.) Where plaintiff supposedly had food poisoning after eating Campbell’s soup that she purchased at defendant supermarket, trial court erred in dismissing the complaint, since a doctor’s report demonstrated that the soup may have caused the illness. WILLS AND TRUSTS 38-2-3718 Thomas N. Tratta v. Carolann Wszolek, App. Div. (4 pp.) Where deceased mother had transferred title to her home as a gift to her daughter, and relatives sued to set the gift aside, trial court properly held that the gift was “void as a fraudulent transfer,” since the gift rendered the mother’s estate insolvent. WORKERS’ COMPENSATION – PUBLIC EMPLOYEES 39-2-3719 Derek Nagy v. Bergen County Utils. Auth., App. Div. (7 pp.) Where employee, fired for his “inability to perform work duties,” sued for wrongful termination, claiming that while his workers’ compensation benefits petition was pending he could not be fired, Merit Board properly held that his job termination was valid, under N.J.A.C. 4A:2-2.3. CRIMINAL LAW AND PROCEDURE 14-2-3720 State v. Larry J. Ashley, App. Div. (4 pp.) Where defendant was indicted for receiving stolen property, and applied for the pretrial intervention program, trial court erred in approving the application over prosecutor’s objections, since defendant’s lack of candor in describing his involvement in the crime was an important part in determining whether PTI objectives could be accomplished reasonably. 14-2-3721 State v. Vernon Jones Jr., App. Div. (4 pp.) Where defendant was convicted of robbery and aggravated assault, trial court erred in not dismissing the robbery conviction, since the conviction was not supported by the evidence.

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