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Vol. 3 No. 41 DECISIONS RELEASED MARCH 3, 1995 EDUCATION 16-2-5068 Howard F. Nichols, et al. v. Bd. of Education of Wayne, App. Div. (9 pp.) The state education commissioner, in ordering the local board of education to provide transportation to school for two children despite the fact that they lived within two miles from the school, properly reconciled measurements of the route traveled by children to their school with traffic laws and safety considerations. FAMILY LAW 20-2-5069 John Scagnelli v. Beverly Scagnelli, App. Div. (7 pp.) Although the husband s funds were the sole source of the downpayment for the marital home, the home is still a joint asset subject to distribution whether or not there was an intention to make a gift to the wife, and the trial judge erred in holding that the wife could not share in the equity. 20-2-5070 Susan L. Sands v. Stephen Elfenbein, App. Div. (9 pp.) The reversals in a wife s physical and mental health, ultimately rendering her disabled, constitute a sufficient showing of change of circumstances under Lepis to require a plenary hearing on the alimony issue despite the fact that wife clearly waived alimony at the time of the trial, and her motion for post-judgment consideration should not have been denied. HEALTH 22-2-5071 N.C. v. Div. of Medical Assistance and Health Services, App. Div. (19 pp.) The disapproval by the acting director of the admission of a disabled child to a specific facility requested by mother (since it was closer to her home) was not arbitrary and capricious, since the child did not require that facility’s higher level of care, provided that the division find an alternative placement within 90 days. INSURANCE 23-2-5072 Will Electric, Inc. v. Royal Insurance Co., App. Div. (11 pp.) Where plaintiff purchased, at an additional premium, a broad form property damage endorsement, the motion judge correctly granted plaintiff summary judgment on the issue of coverage, holding that the exclusion of damage to property being worked on must be strictly construed against the insurer, and since an electrician was not working on the side of the switchboard which ultimately was damaged, but on another part, the exclusion does not apply. INSURANCE – AUTOMOBILES 23-2-5073 Linda Towne, et al. v/ Tom Gay Stables, et al., App. Div. (3 pp.) Out-of-state defendants, residents of Pennsylvania, were entitled to rely on the protections of the verbal threshold statute and, since the plaintiff failed to meet it, summary judgment was properly granted in the defendants’ favor. LANDLORD/TENANT – COMMISSIONS 27-2-5074 Archie Schwartz Co. v. Albert & John Frassetto, et al., App. Div. (5 pp.) Real estate broker was entitled to a commission upon the renewal of a lease with a tenant the broker had procured about 10 years earlier, despite the fact that the new lease contained materially different terms, where the terms of the original lease implied that such commission was contemplated; judgment in favor of the owners of a commercial building is reversed. MUNICIPAL LAW 30-2-5075 Woodbridge Twp. v. Frank Gentempo, App. Div. (4 pp.) In a quasi-criminal matter, the trial judge properly dismissed township s complaint against landowner on the grounds of double jeopardy since the ordinance the landowner violated�prohibiting placing fill on his property without a permit–contemplated the placing of the fill as one event, and the mere continuation of the presence of the soil could not support separate violations. 30-2-5076 Estate of A. Lucian Ciocca, et al. v. Bd. of Adjustment of Ft. Lee, App. Div. (10 pp.) Where improved aesthetics, along with an increase in light and air to surrounding properties, satisfied the positive criteria of N.J.S.A. 40:55D-70(d), and where the board made no findings regarding landowner s satisfaction of the negative criteria but merely parroted the statute in conclusory terms, law judge was correct in reversing the denial of the variance. NEGLIGENCE 31-2-5077 Miguel Rincon v. Ilma Delapaz, et al., App. Div. (4 pp.) Plaintiff had the right to be provided with a copy of the defense doctor s examination report, even though he was not expected to be called as a witness and despite the fact that there was no showing of exceptional circumstances. 31-2-5078 Robert Bailey v. City of Plainfield, et al., App. Div. (6 pp.) Since the law mandates that the city mark the clearance on an overpass and post warning signs for approaching drivers, the issue of whether the driver saw or relied on the sign, which had been defaced, are immaterial and the directed verdict for the city was improper. 30-2-5079 Josephine Camuccio, et al. v. Deptford Mall, et al., App. Div. (7 pp.) Where a trial de novo was not demanded in a timely fashion due to defense counsel’s inadvertence, the court held that this did not constitute the extraordinary circumstances necessary to relax the time requirements for filing a de novo demand, and the order confirming the arbitration award in favor of plaintiff was correctly granted. 30-2-5080 Laura and Angelo Pribila v. Shop Rite Supermarkets, Inc., et al., App. Div. (14 pp.) Even if the trial judge committed error in allowing the jury to hear expert testimony and counsel s comments on the potential for plaintiff to have knee replacements, this error was not harmful. CRIMINAL LAW AND PROCEDURE 14-2-5081 State of New Jersey v. Evelyn Berman Frank, App. Div. (21 pp.) Where defendant, a 75-year-old chief operating officer of a marine transport company, voluntarily entered into a plea arrangement on her charge of unlawful dumping into Newark Bay, a material part of which was that her probation mandated that she divest herself from all association with the business, forcing her retirement, her later argument at a probation violation hearing that her family inter vivos and testamentary documents limited her ability to comply were groundless.

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