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VOL. 2, NO. 113 DECISIONS RELEASED JUNE 23, 1994 TAXATION – REAL ESTATE 35-2-3589 The John Dolak Home Ass’n v. Borough of Alpha, App. Div. (13 pp.) Where plaintiff veterans’ organization affiliated with the American Legion appealed from a Tax Court judgment denying its real property tax exemption on grounds that the property was not used for charitable purposes, Tax Court properly denied the exemption, since the “actual use” of the organization’s property was not for charitable reasons, under N.J.S.A. 54:4-3.6. ARBITRATION AND MEDIATION 03-2-3590 New Jersey Inst. of Technology v. Professional Staff Ass’n Inc./AAUP, App. Div. (5 pp.) Where arbitrator held — during a non-tenured teacher’s grievance proceeding on his failure to be reappointed — that the Professional Staff Association had the burden of proof, chancery court erred in partially vacating arbitrator’s award, since it was totally within his authority. CONTRACTS – COMMERCIAL TRANSACTIONS – REAL ESTATE 11-2-3591 Coastal Group, Inc. v. Dryvit Sys., Inc., et al., and Fab Tech, Inc., v. Chase Manhattan Bank, N.A., et al., App. Div. (13 pp.) Where plaintiff developer, who bought exterior wall panels from defendant Dryvit, sued Dryvit for contract breach, fraud, Consumer Fraud Act claims, and misrepresentation, trial court erred in dismissing all claims against Dryvit, since fraud and consumer fraud claims can be brought with a contract governed by the Uniform Commercial Code. DEBTOR/CREDITOR 15-2-3592 Builders General Supply Co. v. David Messner and Adrienne Messner and Thomas Ryan, App. Div. (10 pp.) Where plaintiff supply company, which supplied general contractor with materials for defendants’ house, placed a mechanics’ lien on defendants’ real property for money the contractor owed it, trial court erred in dismissing the mechanics’ lien on grounds that the plaintiff supply company incorrectly relied on a date when it replaced previously delivered “defective” materials in order to file its lien claim, since (1) the replacement material was not “defective,” and (2) a claim cannot be filed based on the purchase date of defective materials, Rigberg v. Narduc Dev. Corp., 47 N.J. Super. 588 (Ch. Div. 1957). INSURANCE – ALCOHOLIC BEVERAGES 23-2-3593 Maynard’s Cafe v. Licensed Beverage Ins. Exch. and A.E. Giegerich & Sons, App. Div. (8 pp.) Where a patron slipped and fell in plaintiff’s tavern, and tavern owner purchased a “claims-made” policy months after the accident, trial court properly held that (1) the insurance policy did not cover the accident, since it did not provide retroactive coverage, and (2) the “Prior Acts Exclusion” reasonably precludes the potential that the insured may obtain a “claims-made” policy to secure retroactive coverage against that claim. INSURANCE – AUTOMOBILES 23-2-3594 Dennis Hilliard Sr., et al, and Tanya Kenner v. Herbert Schenber and Freddie Smith and Betty A. Smith, App. Div. (6 pp.) Where plaintiff passengers injured their necks and backs in an automobile accident, trial court erred in dismissing plaintiffs’ complaints, for failure to meet verbal-threshold criteria, when granting defendant’s summary judgment motions, since factual questions existed as to whether plaintiffs’ injuries satisfied the criteria. JURISDICTION 24-2-3595 Performance Motorcars of Westchester, Inc. v. KPMG Peat Marwick, App. Div. (6 pp.) Where plaintiff — a New York corporation, which had its principal place of business and license to do business in New Jersey — leased cars to a New Jersey company, trial court erred in holding that New York law applied, since New York’s contact with the parties was far less than New Jersey’s contacts. LANDLORD/TENANT – CIVIL PROCEDURE 27-2-3596 Carl G. Boyden v. Emery J. Sallo, Sr., App. Div. (5 pp.) Where former landlord failed to answer former tenant’s complaint for return of security deposit, trial court properly denied landlord’s second motion to vacate a default judgment, since after the first motion was denied, the landlord should have appealed the motion or filed a timely motion for reconsideration. PHYSICIAN/PATIENT – TORTS 29-2-3597 Linda Steers v. Underwood Memorial Hosp., et al., App. Div. (21 pp.) Where jury found for patient in a negligent- supervision suit against psychiatric in-patient hospital for injuries she sustained after setting her nightgown on fire, trial court properly found that the testimony of patient’s nursing expert was not a net opinion, since she relied on standards adopted by the American Nursing Association and her personal teaching experience in giving her testimony. REAL ESTATE – CONTRACTS 11-2-3598 Davidson Bros., Inc. v. D. Katz & Sons, Inc., City of New Brunswick, et al., App. Div. (17 pp.) Where restrictive covenant in a deed for a building, which defendant city purchased from defendant rug store owner for use as a supermarket, was drafted by plaintiff neighboring grocery store owner who sold building to rug store owner and said that the building would not be used as a supermarket for 40 years, trial court properly dismissed the complaint, since the covenant was so contrary to public policy. TORTS – ALCOHOLIC BEVERAGES 36-2-3599 Lynn A. Armenti v. Charles Yannaccone, et al., App. Div. (35 pp.) Where after defendant teenagers had been fighting over plaintiff in a school yard, and one teenager ran over plaintiff while she was lying down in the school yard as he backed his car out of a parking spot, trial court erred in charging the jury on negligence and proximate cause, since the charge did not follow the model jury charges, and did not give the jury any assistance in applying the law to the case’s unusual facts. CRIMINAL LAW AND PROCEDURE 14-1-3600 State v. Margaret Kelly Michaels, Supreme Ct. (51 pp. incl. appendix) Where nursery school teacher was convicted of sexually abusing children in her care, appellate court properly set aside the conviction, since the children’s investigatory interrogations were so coercive as to change the children’s perceptions, making the evidence unreliable. 14-2-3601 State v. W. Oscar Harris, Jr. and Alonzo Bailey, App. Div. (15 pp.) Where in separate trials both defendants, involved in Atlantic City government, were convicted of conspiracy to use their influence to approve casinos’ land use applications, trial court properly admitted into evidence how defendants used their influence to stop supposed police harassment at a nightclub, 10 months before the conspiracy began, since its probative value outweighed its prejudicial effect, under Evid. R. 4.

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