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Vol. 3, No. 28 DECISIONS RELEASED FEBRUARY 10, 1995 ADMINISTRATIVE LAW AND PROCEDURE – HEALTH 01-2-4934 Pascack Valley Hospital v. N.J. Dept. of Health, App. Div. (13 pp.) Where administrative law judge, in a 46-page report containing findings of fact and detailed discussion of the law, recommended approval of hospital’s certificate of need application, Health Care Administration Board’s decision to deny — without making its own findings of fact and conclusions of law — was reversible. CIVIL PROCEDURE 07-2-4935 Capossela, Cohen, Engelson & Colman, P.C. v. Sylvia Pico, App. Div. (10 pp.) Where plaintiff relied on advice of counsel as to jurisdictional and venue issues, later dismissal of suit for lack of jurisdiction does not make the suit frivolous or impute the bad faith necessary to justify defendant’s claim for counsel fees under the Frivolous Claims Act. CIVIL RIGHTS 46-2-4936 In re: Commitment of S.J,. App. Div. (5 pp.) While judge’s failure to indicate whether his findings as to patient s dangerous propensities were in conformity with the clear and convincing standard of proof required to continue patient’s involuntary commitment ordinarily would necessitate remand, the fact that a review hearing was imminently scheduled for the patient allowed for those issues to be raised in the upcoming hearing, along with the current status of the patient and the effects of her medication. 46-2-4937 In re: Commitment of K.L., App. Div. (7 pp.) The testimony elicited at the hearing on patient’s challenge of her involuntary commitment was based primarily on patient’s condition at the time of and shortly after her initial commitment, and fell far short of satisfying the clear and convincing standard that patient would be dangerous to herself or others within the reasonably foreseeable future, warranting reversal of her commitment. FAMILY LAW 20-2-4938 Nancy Lee Mattei v. David D. Mattei, App. Div. (8 pp.) The trial court committed plain error in failing to properly evaluate the issue of child support, totally ignoring the Child Support Guidelines set forth in R.5:6A, Appendix IX, and also refusing to consider and resolve all pendente lite disputes which had been reserved for disposition at trial. 20-2-4939 Ellen S. Diamond v. Michael Diamond, App. Div. (5 pp.) The trial court improperly denied defendant s motion to modify the terms of a divorce judgment which provided for an automatic increase in support where the increase was not in conformance with the guidelines of Appendix IX, and defendant’s failure to raise that issue as a direct appeal from the final judgment, as opposed to a post-judgment application, is not a fatal one. INSURANCE – AUTOS 23-2-4940 Lydia Concordia v GMAC, App. Div. (6 pp.) Plaintiff made a prima facie showing of objective medical support for her claim that serious injury and a resultant disability, due to the accident, had a substantial impact on her life, and summary judgment was improperly granted to defendant. LANDORD/TENANT 27-2-4941 Michael M. Cantor v. Jennifer Convertibles, Inc., App. Div. (4 pp.) A provision in a commercial lease wherein tenant guaranteed unpaid rent limited to one year s rent was correctly construed by trial judge as meaning that the guarantee was for any unpaid rent during the term of the lease, limited to no more than a full year s payments, not simply that the tenant only provided the guarantee for the first year of the lease term. PUBLIC EMPLOYEES 33-2-4942 In re: Charles Bogins, App. Div. (3 pp.) An employee, suspended pending the outcome of criminal charges, is entitled to an award of mitigated back pay following his acquittal on charges and reinstatement to employment. CRIMINAL LAW AND PROCEDURE 14-2-4943 State of New Jersey v. Al-Tariq Watson, App. Div. (10 pp.) Where the entire defense centered around the theory that defendant did not participate in the crime at all, and the defense counsel did not request an instruction from the trial judge on lesser included offenses, it is not plain error for the judge to have failed to instruct the jury that defendant could have been found guilty as an accomplice. 14-2-4944 State of New Jersey v. David Allen Stucks, App. Div. (6 pp.) The trial judge properly denied defendant s petition for post-judgment relief on the ground that it was time-barred and no potential for injustice was shown to relax the limitation rule. 14-2-4945 State of New Jersey v. Robert Chang, App. Div. (3 pp.) Where defendant, imprisoned in Virginia, wrote letters requesting speedy disposition of N.J. charges under the Interstate Agreement on Detainers Act and where N.J. mailed him the forms, fact that he had been transferred to another prison in Virginia and those forms did not reach him for five months does not justify dismissal of the N.J. indictment against him as this state is not at fault for the paperwork delay and strict compliance with the IAD is required. 14-2-4946 State of New Jersey v. Donald P. Kelly, App. Div. (9 pp.) The admission of defendant’s prior convictions was proper since it was used to impeach his credibility and would not create undue prejudice. 14-2-4947 State of New Jersey v. Phillip O’Neal, App. Div. (6 pp.) Defendant’s motion to suppress evidence was correctly granted in part since, although police had probably cause to obtain a warrant, they failed to show the emergent circumstances necessary to justify their entry into defendant s motel room without the warrant.

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