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VOL. 3 NO. 24 DECISIONS RELEASED FEB. 6, 1995 CIVIL PROCEDURE 07-2-4888 Ronald Gilgallon v. Clara Bond, App. Div. (14 pp.) Where plaintiff established a prima facie demonstration that the defense testimony was contrived, the trial court erred in denying plaintiff s motion to vacate the judgment entered in favor of the defendant and the matter is remanded for a plenary hearing. CONSTITUTIONAL LAW 10-2-4889 General Motors Corp. v. City of Linden, App. Div. (23 pp.) The trial court erred in holding that it lacked jurisdiction over this appeal of an allegedly arbitrary and excessive tax assessment, since there is no precedent for precluding a taxpayer from maintaining a Section 1983 action in state court based on a state tax official’s alleged violation of federal constitutional rights. CONTRACTS 11-2-4890 Pyramid Const. Co. v. Wesley Bell, App. Div. (14 pp.) The trial judge improperly granted judgment for the defendant in a breach of contract suit since (1) he failed to consider the doctrine of judicial estoppel as it applied to defendant’s contradictory position in another, related lawsuit and (2) his findings of fault with the plaintiff s attempts to comply with its contractual obligations were against the weight of the evidence. CORPORATIONS 12-2-4891 Licette Music Corp. v. A.I. Massler, App. Div. (7 pp.) While plaintiff s receipt of monies from defendants from a licensing and royalty agreement, and a judgment obtained thereon, may constitute doing business in New Jersey, such that plaintiff would be required to comply with the filing and reporting requirements of New Jersey statutes, the failure of plaintiff to register does not constitute grounds to overturn judgment in plaintiff s favor, since the statutes were not designed to protect recalcitrant debtors. EVIDENCE 19-2-4892 Joseph Azzolino v. L&B Typo, Inc., App. Div. (3 pp.) Where defendants moved for relief from a judgment for commissions based upon the fact that two missing pages of an evidentiary document were submitted to the judge after he had rendered his decision but before he had calculated the commissions due, the motion was properly denied since the two pages, by themselves, would not have changed the result. FAMILY LAW – JURISDICTION 20-2-4893 D.B. v. R.B. , App. Div. (11 pp.) The trial judge did not abuse his discretion in declining jurisdiction and denying mother s motion for reconsideration of custody where parties had previously agreed to joint custody envisioning two separate residential jurisdictions for the child and where child s connections were more substantial in state of Virginia than in New Jersey. HEALTH 22-2-4894 Bayonne Hospital v. Bruce Siegel, Commr. of Health, App. Div. (27 pp.) Agreeing in part with a challenge by 14 acute-care hospitals to the Department of Health s imposition of a 1993 Hospital Assessment Fee, the court reversed and held that, although the Department did have the statutory authority to impose the fee, it may not have had the regulatory authority to assess it, and, even if it did, the amount assessed was not supported by the record. TORTS 36-2-4895 Andre Rodriguez v. Rose Cordasco, App. Div. (10 pp.) The trial court properly granted summary judgment to a property owner who fed stray dogs, holding that she owed no duty to the public to protect against the danger the dogs presented — in this case, having chased plaintiff and causing his fall and injury — since a stray, by definition, is not owned or controlled by anyone. CRIMINAL LAW AND PROCEDURE 14-2-4896 State of New Jersey v. Hector Benitez, App. Div. (6 pp.) Defendant was not deprived of his constitutional right to be present at every stage of his trial, since his absence — although allegedly due to illness — was voluntary and was not communicated to the court or supported by medical certification. 14-2-4897 State of New Jersey v. Charles J. Hill, App. Div. (5 pp.) Judge erred in instructing the jury on lesser-included offense of aggravated assault where evidence did not rationally support this charge and such an instruction would enhance the risk of a compromise verdict. A

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