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VOL. 3 NO. 25 DECISIONS RELEASED FEB. 7, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-4901 James A. Vandermark v. State of New Jersey, App. Div. (5 pp.) Refusal to allow ex-police officer the chance to reopen his withdrawn appeal for disability retirement was within the discretion of the agency to reopen past proceedings upon a showing of good cause and reasonable diligence, both lacking here. BANKING 06-2-4902 Midlantic Nat l Bank v. L Apogee, Inc., App. Div. (9 pp.) The trial judge did not err in refusing to amend defendants pleadings to conform to their proofs to include the defense that plaintiff violated the Equal Credit Opportunity Act, since such an allegation would not have constituted an affirmative defense to the validity of the debt and would have had to be pleaded in a counterclaim. CONTRACTS 11-2-4903 Charles Klatskin Co., Inc. v. Erez Levy, App. Div. (4 pp.) Debtors’ failure to make a timely payment on a promissory note, whether inadvertent or not, constituted default since the note, executed in furtherance of a settlement, specifically set forth prompt payment as a material condition and contained a provision for a grace period. EDUCATION 16-2-4904 J.B. and N.B. v. Bd. of Education of Jefferson Twp., App. Div. (4 pp.) Decision by school board, denying a student acceptance into his high school s chapter of the National Honor Society, was not arbitrary, capricious or unreasonable, since grades are not the only criteria for membership and intangibles such as leadership, character and service must be considered. INSURANCE 23-2-4905 Kathleen Dalton v. U.S. Judo, Inc., App. Div. (4 pp.) Administrator of group insurance policy did not owe a duty to an individual member of insured judo team to supply an individual certificate disclosing policy limits of coverage. INSURANCE – AUTOMOBILES 23-2-4906 Arthur Vitale v. David M. Lobycz, App. Div. (5 pp.) The trial court partially erred in granting defendant s motion for summary judgment where there was enough evidence that auto accident may have aggravated plaintiff s prior injury and that the accident had a serious impact on his life. LABOR AND EMPLOYMENT 25-2-4907 Dietra Parrish v. Bd. of Review, App. Div. (5 pp.) Where employee failed to establish that her work duties aggravated a preexisting condition, her leaving work for medical reasons was not good cause attributable to such work, and unemployment benefits were properly denied. LANDLORD/TENANT 27-2-4908 Jairo Correa v. Marsar West Asso., App. Div. (4 pp.) Trial court s order requiring landlord to refund to tenant the excess of the rent it collected — over that which was allowed by the rent control ordinance — was upheld, since landlord, by not appealing the decision of the rent control board, failed to exhaust its administrative remedies. 27-2-4909 Bella Vista Owners, Inc. v. Justin Polise, App. Div. (3 pp.) Judgment in favor of tenants granting them an abatement of maintenance charges against a cooperative homeowners association was reversed since the court improperly applied a subjective test to a noise complaint under the Berzito v. Gambino case discussing a tenant s right to quiet use and enjoyment of property, when the standard is properly objective. MUNICIPAL LAW 30-2-4910 Peter M. Serrao v. Kingwood Twp., App. Div. (40 pp.) Township was properly held liable under N.J.S.A. 59:4-2 for the dangerous condition of property where a stop sign, although erected by the County but located on the township s right-of-way, was obscured by vegetation and the township did not establish sufficient basis to submit a resource allocation defense to the jury to establish an immunity. NEGLIGENCE 31-2-4911 Joseph Killeen v. Pablo G. Lacayo, App. Div. (4 pp.) Where plaintiff, a child playing with friends, fell into defendant s parked car and cut his hand on the antenna, the trial court correctly granted summary judgment to the defendant since the antenna did not create a foreseeable risk as a matter of law. 31-2-4912 Edward Nowacki v. Community Medical Center, App. Div. (19 pp.) The trial judge did not abuse her discretion by excluding portions of the hospital records (in which non-testifying physicians made certain complex conclusions critical to the issues in dispute) and excluding expert testimony regarding those records. [Approved for publication Feb. 7, 1995.] PRODUCT LIABILITY 32-2-4913 Angelina DeFrancesco v. Keller Industries, Inc., App. Div. (14 pp.) Defense counsel’s demonstration of the use an allegedly defective ladder by the defense counsel during cross-examination of the plaintiff s expert and the plaintiff herself was held to be proper and, further, it was permissible for the jury to consider evidence of plaintiff s conduct since it could be related to the issue of proximate cause, not as it related to her negligence. TORTS – CIVIL PROCEDURE 36-2-4914 Yefim Ryslik v. Robert W. Krass, App. Div. (16 pp.) The trial judge should not have set aside jury s reasonable verdict apportioning liability as to the defendants and should not have ordered a new trial because one defendant, a priest, was permitted to appear in his clerical garb, where the possible prejudicial impact of such appearance was adequately addressed in both the jury selection process and in the charge. [Approved for publication Feb. 7, 1995.] CRIMINAL LAW AND PROCEDURE 14-2-4815 State of New Jersey v. Ramone L. Rivera, App. Div. (5 pp.) The trial judge erroneously denied motion to suppress evidence of cocaine since the police did not have adequate justification to seize the defendant, who was merely walking down the street with his left hand in a fist and who fled when the police approached him. 14-2-4916 State of New Jersey v. Essam Saraya, App. Div. (6 pp.) Defendant s conviction of harassment was reversed because the trial court failed to make findings concerning certain necessary elements of the offense. 14-2-4917 State of New Jersey v. Mahendranarine Arkais, App. Div. (8 pp.) The trial judge gave an erroneous instruction on constructive possession which did not contain the concept of defendant s ability to convert constructive possession to actual possession almost immediately, and, therefore, the defendant s conviction on charges of aggravated assault and weapons offenses is reversed. 14-2-4918 State of New Jersey v. Darrell Smith, App. Div. (21 pp.) While not overturning convictions, the court remanded for re-sentencing because (1) The trial court should have submitted to the jury the question of whether defendant committed a sexual assault upon a victim under the age of 16 during the course of a kidnapping in order to impose the enhanced sentencing provisions of N.J.S.A. 2C:13-1c (2), and (2) Defendant s attempt convictions do not come within the conditions for imposition of an enhanced sentence. [Approved for publication Feb. 7, 1995.] *** Approved for Publication: 10-2-4889 General Motors Corp. v. City of Linden, 2-3-95; 15-2-4876 Trooper Ink Co., Inc. v. John H. Warren,2-3-95; 36-2-4885 Charles W. Geyer, Sr. v. Alfred L. Faiella, 2-3-95; 20-2-4893 D.B. v. R.B., 2-6-95; 07-2-4888 Ronald Gilgallon v. Clara Bond, 2-6-95; 36-2-4895 Andre Rodriguez v. Rose Cordasco,2-6-95. A

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