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Vol. 3 No. 29 DECISIONS RELEASED FEBRUARY 14, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-4948 Ronald C. Wendling v. N.J. Racing Comm., App. Div. (9 pp.) The Commission was correct in its decision to discipline a licensed trainer who hired a suspended jockey as a general maintenance worker and failed to register him, even though the job that the jockey performed was exempt from licensing. CIVIL PROCEDURE 07-2-4949 St. Clare’s Hospital v. Patricia Senatore, App. Div. (5 pp.) The trial judge did not reveal his reasons and had no grounds to award counsel fees against plaintiff for opposing defendant s motion to vacate a default judgment. CIVIL PROCEDURE — INSURANCE 07-2-4950 Security Benefit Life Insurance Co. v. TFS Insurance Agency, App. Div. (10 pp.) Plaintiff’s motion for summary judgment to enforce a Kansas judgment and dismiss defendant’s counterclaim was properly granted since the judgment was entitled to full faith and credit and defendants failed to assert their counterclaim in the Kansas action. CONSTITUTIONAL LAW 10-3-4951 State of New Jersey v. $3,000 in U.S. Currency, Law Div. (13 pp.) Civil forfeiture constitutes punishment and, when combined with criminal prosecution, triggers protection of Fifth Amendment’s double jeopardy clause. CONTRACTS — PARTNERSHIP 11-2-4952 Robert H. Kessler v. Richard Antinora, App. Div. (7 pp.) Where a joint venture agreement contemplated that profits would be split among partners but did not address how to treat losses, court properly held that defendant, who contributed only labor and received nothing when venture lost money, did not owe anything to plaintiff, who contributed capital and did receive a large portion of it back. FAMILY LAW 20-2-4953 Leslie Reeber v. Gene Reeber, App. Div. (5 pp.) The trial court’s award of counsel fees to the plaintiff is remanded, as there was insufficient support for the award and no findings or conclusions were made. GOVERNMENT — CONTRACTS 21-2-4954 Spencer N. Miller v. Housing Authority of Elizabeth, App. Div. (3 pp.) While it may have been improper to award a contract for legal services on the basis of geographical location instead of a random-selection tie breaker, summary judgment dismissing the complaint was proper since matter is now moot. INSURANCE — AUTOS 23-2-4955 Kim Sass v. Chul H. Park, App. Div. (7 pp.) (1) Where all of plaintiff’s doctors’ reports stated that her complaints related to injuries suffered in an accident, she satisfied the causation requirement established in Oswin v. Shaw and summary judgment was improperly granted to defendant. (2) Loss of time from work is but one factor to be weighed in determining impact of accident on a plaintiff s life. INSURANCE — ATTORNEYS’ FEES 23-2-4956 Allstate Ins. Co. v. Roger Coven, App. Div. (7 pp.) Where carrier, facing a settlement that might exhaust the policy, sought declaratory judgment on question of its right of reimbursement for PIP payments, parties joined in carrier’s suit suffered no actionable wrong and must bear their own attorney fees. 23-2-4957 Mary Reeder v. William Penn Life Insurance Co. of N.Y., App. Div. (6 pp.) Since there was a genuine issue of material fact as to whether defendant carrier relied on incorrect information submitted by decedent insured, summary judgment was properly denied and verdict against defendant will not be overturned. MUNICIPAL LAW 30-2-4958 CVS v. Teaneck Planning Board, App. Div. (9 pp.) The Planning Board correctly interpreted its ordinance, wherein hours of operation is not a permitted feature of exterior signs, and did not act arbitrarily or unreasonably in denying a sign permit to plaintiff, which sought to add “open 24 hours” to its existing sign. NEGLIGENCE 31-2-4959 William Palmer v. Lauren De Rivaud, App. Div. (6 pp.) Plaintiff’s complaint for personal injuries was improperly dismissed where plaintiff attempted to comply with the rules but was unable to locate the defendant and any prejudice to defendant s carrier is due to defendant s own actions, not plaintiff’s. 31-2-4960 Ronald Voacolo v. Salvatore Noto, App. Div. (3 pp.) Jury’s finding of negligence against homeowners will not be disturbed where evidence showed that homeowners knew of disparity in height of step risers and there was enough evidence to present a jury question as to whether neighbor, who fell on the steps, was aware of or should have discovered the extent of the risk. 31-2-4961 Irene G. Lemieux v. Vernon Valley Recreation Assn., App. Div. (5 pp.) The trial judge did not err in excluding evidence of prior accidents on the ride on which plaintiff was injured where plaintiff offered the evidence to show that the ride was dangerous, not to show notice of danger to the defendant, and admission of such evidence without expert testimony would lead jury to pure speculation. PUBLIC EMPLOYEES 33-2-4962 In re: James Haggerty, App. Div. (4 pp.) Although the Merit System Board accepted the administrative law judge’s findings as to probation officer’s bookmaking activities, it has de novo authority over the penalty to be applied, and thus it properly found that removal from public service was too severe. REAL ESTATE 34-2-4963 Central Jersey Bank & Trust v. Robert Sickler, App. Div. (2 pp.) An institutional second mortgagee that takes a deed in lieu of foreclosure conditioned on a waiver of any deficiency claim may exercise the ten-day right of redemption following foreclosure and sale to the first mortgagee. CRIMINAL LAW AND PROCEDURE 14-2-4964 State of New Jersey v. Vincent Briggs, App. Div. (13 pp.) In addition to other problems in the case, it was reversible error to admit the hearsay statement of defendant’s girlfriend, through testimony of a prisoner incarcerated with the defendant, and it was not clear that this statement qualified as an adoptive admission. 14-2-4965 State of New Jersey v. Christopher Frost, App. Div. (3 pp.) The enhanced penalty of N.J.S.A. 39:4-50 is applicable to a conviction for refusal to submit to a breathalyzer test when the defendant has a prior DWI conviction.

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