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Vol. 3, No. 23 DECISIONS RELEASED FEBRUARY 9, 1995 CONTRACTS 11-2-4926 Ajax Mfg. Co., Inc. v. Lincoln Fuel Co., App. Div. (6 pp.) Where a contract between the parties was clearly for the sale of goods, the transaction was subject to the Uniform Commercial Code and the claim for monetary damages was barred by the application of a four-year statute of limitations; however, trial court erred in dismissing the Consumer Fraud claims, since the UCC expressly saves fraud claims from pre-emption and the six-year statute applies to them. CORPORATIONS 12-2-4927 Pennway Joint Venture, L.P. v. Robert C. Fesco, App. Div. (8 pp.) In an action by partners for trespass and injunctive relief against other partners with respect to land owned by the partnership, the trial court was correct in granting summary judgment to defendant partners, holding (1) that an action for trespass cannot lie against one who shares a common interest in property, and (2) that injunctive relief was not proper since plaintiffs, in alleging only monetary loss, did not meet their burden to show the possibility of irreparable harm necessary to secure injunctive relief, and matter is remanded to law division for that aspect. INSURANCE 23-2-4928 Marion Basile v. Travelers Indemnity Co., App. Div. (4 pp.) Arbitrators were duty-bound to resolve plaintiff s properly-presented claim for pre-award interest and their failure to do so mandates remand for such determination. REAL ESTATE 34-2-4929 Maria Dobrowolski v. Patricia Arter, App. Div. (4 pp.) Where broker and seller of real estate both knew of seller s prior substantial efforts to repair a cracked foundation, their statements that the house had no problems and outright lies about the strange condition of the cement in the basement being attributable to installation of a drainage system constituted material misrepresentations of fact such that buyers were entitled to recover cost of structural repair. TORTS 36-2-4930 Luke Humphrey v. Leesburg State Prison, App. Div. (7 pp.) Plaintiff, an inmate who served as a barber in State prison and who lost sight in his eye when the trimmer he was given to use exploded, failed to prove that the State had notice of the dangerous condition of the trimmer, and summary judgment was properly granted to defendant. 36-2-4931 Louise Yeager v. State of New Jersey, App. Div. (10 pp.) Motion judge properly dismissed claim under theory of negligent release against state parole board by plaintiff, who was assaulted and raped by a parolee, since plaintiff never filed a notice of claim and therefore failed to comply with the notice requirements under the Tort Claims Act, and, further, N.J.S.A. 59:5-2 grants specific immunity to the board from such claims. CRIMINAL LAW AND PROCEDURE 14-2-4932 State of New Jersey v. Carlton Cunningham, App. Div. (8 pp.) Judge erred both in his instruction on armed robbery and in failing to give a limiting instruction concerning evidence of other robberies alluded to by defense counsel, and judgment is reversed. 14-2-4933 State of New Jersey v. Frank J. Capece, Jr., App. Div. (5 pp.) Where police officer, in the process of investigating a hit and run accident, was told by victim that the driver who hit him went into a specific house, and police officer then knocked on the door of the house and was admitted by the wife of defendant, this constituted neither a search nor an arrest such that a warrant would be necessary to protect defendant s constitutional rights and, in fact, officer did not even make the observations of defendant s drunkenness until he voluntarily left the house.

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