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Vol. 3 No. 37 DECISIONS RELEASED FEBRUARY 27, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-5032 David J. McCabe v. N.J. Div. of Motor Vehicles, App. Div. (4 pp.) An out of state conviction for driving while under the influence comes within the ambit of “any other reasonable grounds” giving the Director power to suspend the petitioner s license under N.J.S.A. 39:5-30, and the Texas conviction could properly constitute petitioner’s third such offense, meriting increased suspension. CIVIL PROCEDURE 07-2-5033 Joseph Prevratil, et al. v. George Mohr, et al., App. Div. (7 pp.) Summary judgment, dismissing complaint as barred by the entire controversy doctrine, affirmed where plaintiff who was injured in automobile accident and joined in a timely filed unemployment compensation claim, had his own counsel shortly after the accident and knew of his own “severe” injury. COMMERCIAL TRANSACTIONS – ANTITRUST 08-2-5034 Ideal Dairy Farms, Inc. v. Farmland Dairy Farms, Inc., et al., App. Div. (74 pp.) Judgment for plaintiff reversed in case involving claims under the N.J. Antitrust Act for conspiracy in restraint of trade and claims under the common law for tortious interference with prospective economic advantage, where inter alia the evidence did not establish probable or actual injury to competition, a necessary element of antitrust liability. CORRECTIONS 13-2-5035 St. Francis Medical Center, et al. v. Ronald Gregston, et al., App. Div. (10 pp.) Summary judgment directing the county to pay medical bills incurred for a prisoner injured when he shot his wife in front of a police officer was reversed, since there were no factual findings to support the prisoner s indigency, nor was the county given notice that it would be expected to bear this expense. FAMILY LAW 20-2-5036 Patrick Mallamo v. Doreen Mallamo, App. Div. (12 pp.) The trial judge s oral modification of a pendente lite child support order at trial without the benefit of a motion for such modification, which was then memorialized in the divorce judgment, did not violate the prohibition of retroactive modification of child support set forth in N.J.S.A. 2A:17-56.23a. INSURANCE 23-2-5037 Todd Edelstein v. Warner Ins. Systems, et al., App. Div. (6 pp.) Despite fact that plaintiff s amended declaration page stated mistakenly that he was covered for basic Personal Injury Protection for his motorcycle and fact that he was charged and a premium for that coverage and paid it, summary judgment in his favor was erroneous since N.J.S.A. 17:30E-15 prohibits such coverage. INSURANCE – AUTOMOBILES 23-2-5038 Susan Goldman, et al. v. Daniel F. Richards, et al., App. Div. (3 pp.) Since plaintiff resumed part-time work approximately 80 days after an accident and full-time work 14 days after that, and resumed her household chores two and a half months after the accident, she did not meet the criteria of a Type 9 injury under the verbal threshold, and summary judgment was properly granted to defendants. LABOR AND EMPLOYMENT 25-2-5039 Laureen Ryan v. Melissa M. Brown, App. Div. (5 pp.) Because the transcript of the Appeal Tribunal s hearing based on a poor-quality audiotape was so incomplete, the Board of Review could not validly discharge its function and its decision must be vacated and remanded for a de novo hearing. 25-2-5040 Leonard & Butler, P.C. v. Evan M. Harris, App. Div. (14 pp.) Several paragraphs of a lawyer s employment contract with his prior firm were properly held void as unreasonable restrictions upon an attorney s continued employment since they acted as a financial disincentive and were clearly violative of RPC 5.6. LANDLORD/TENANT 27-2-5041 Pauline Hogan, et al. v. The Antique Mall, App. Div. (5 pp.) Although the lease to plaintiffs, who sought to open a jewelry shop, said nothing about an alarm system and contained clauses exculpating the landlord for liability, summary judgment was improperly granted to landlord, since plaintiffs were fraudulently induced to sign the lease by the promise that a state of the art alarm system was installed and the parol evidence rule permits proof of fraud in the inducement. REAL PROPERTY 34-2-5042 Stanley Szymczak, et al. v. Anthony LaFerrara, et al., App. Div. (13 pp.) Mandatory injunction ordering defendants to remove a home built on plaintiff’s lot reversed and remanded for a hearing on damages, since balancing of equities under doctrine of relative hardship showed little justification for destruction of home to preserve an undeveloped lot held 20 years for speculative development. CRIMINAL LAW AND PROCEDURE 14-2-5043 State of New Jersey v. James F. Sheridan, App. Div. (5 pp.) Given both the custodial sentence and aggregate driver s license suspension defendant faced, he was entitled to counsel as an indigent on the prosecution of these non-indictable charges in municipal court, the Law Division and at the appellate level, and fact that he filed a pro se notice of appeal and brief does not presume a waiver. 14-2-5044 State of New Jersey v. Charles J. Gardner, App. Div. (5 pp.) Motion to suppress properly denied since, although police officer did not have probable cause to search, he did have a right to further investigate based on reasonable suspicion, and his statement that it would go “easier on you if you give it up” was not coercive such that it would negate defendant s right to refuse consent.

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