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VOL. 2, NO. 209 DECISIONS RELEASED NOVEMBER 30, 1994 TAXATION – CIVIL PROCEDURE 35-2-4420 Rutherford Realty Assocs. v. Borough of Rutherford, App. Div. (8 pp.) Tax court judge erred in imposing sanctions on plaintiff’s counsel for not being ready for trial due to an unavailable expert witness, since the counsel intended to proceed with the case, and a case should not be dismissed unless the offending party’s conduct is “clearly deliberate.” [Approved for publication Nov. 30,1994.][Available online in N.J. Full-Text Decisions.] CIVIL RIGHTS – LABOR AND EMPLOYMENT 46-2-4421 Ann Baker and Barbara Hausleiter v. Nat’l State Bank, App. Div. (4 pp.) Division of Civil Rights director properly provided employees with their files, which were created as a result of their age-discrimination allegations, since the decision was authorized by N.J.A.C. 13:4-8.2. CONTRACTS – GOVERNMENT 11-2-4422 C&J Towing Serv. v. City of Newark, App. Div. (13 pp.) Trial judge erred in awarding damages to a towing service, a city contractor, in a dispute with city over liability for storage fees for two vehicles, since the contract expressly provided that the city was not responsible for charges owed by a claimant. CONTRACTS – TORTS 11-2-4423 Eileen Hanna v. James Mancuso, App. Div. (6 pp.) Where horse boarder sold owner’s registered quarter horse at an auction for $500 without notice to owner, trial court properly held that there was no transfer in ownership from boarder to owner, and payment of $250 did not constitute accord and satisfaction. DEBTOR/CREDITOR – COMMERCIAL TRANSACTIONS 15-2-4424 Nat’l Westminster Bank NJ v. James Lomker, et al., App. Div. (11 pp.) Where bank sued debtors for defaulted real estate loan, trial court erred in striking debtors’ defenses, since factual issues existed concerning defenses and counterclaims. [Approved for publication Nov. 30, 1994.][Available online in N.J. Full-Text Decisions.] ENVIRONMENT – NEGLIGENCE 17-2-4425 Pitney Bowes, Inc. v. Baker Indus., Inc., et al., App. Div. (9 pp.) Where subtenant sued primary tenant, a realty company, and tank installer, who performed work more than 10 years earlier, for contribution for cleanup costs because of site contamination, trial court erred in dismissing complaint against tank installer, since parties cannot rely on the 10-year repose statute to protect them from a Spill Act contribution claim. [Approved for publication Nov. 30, 1994.][Available online in N.J. Full-Text Decisions.] INSURANCE – AUTOMOBILES 23-2-4426 Deidre M. Anderson v. Jospeh E. Polhamus, App. Div. (3 pp.) Where plaintiff injured her back in a car accident, trial court erred in dismissing the complaint for failure to meet the verbal threshold, since a factual question existed as to whether she was unable to perform all of her usual activities for 90 out of 180 days immediately following the accident.[Available online in N.J. Full-Text Decisions.] LANDLORD/TENANT 27-2-4427 Pudchong Srisethnil v. Ann Smith, App. Div. (5 pp.) Where landlord evicted tenant from apartment, special civil part erred in entering a judgment of possession, since the written demand for possession served on tenant under N.J.S.A. 2A:18-61.2c did not tell the tenant the specific date the tenancy ended. TORTS 36-1-4428 John Rumbauskas v. Edward A. Cantor, Supreme Ct. (16 pp.) Where boyfriend sued his girlfriend’s former employer for stalking him, trial court properly dismissed the complaint for late filing, since an action for intrusion on seclusion, which is based on conduct such as stalking or threats of violence, constitutes a claim for “injury to the person” and is governed by the two-year statute-of-limitations. [Decided Nov. 30, 1994.][Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-4429 State v. Harold Ascencio, App. Div. (4 pp.) Where defendant pled guilty to cocaine possession, trial court properly sentenced defendant, since the quantity of cocaine that defendant possessed–14.2 ounces or 30.63 ounces depending on how quantity was calculated– was sufficient to justify his sentence. [Approved for publication Nov. 29, 1994.][Available online in N.J. Full-Text Decisions.] 14-2-4430 State v. Larry Daniels, App. Div. (9 pp.) Where defendant was convicted of purposeful and knowing murder, trial court erred in admitting co-defendant’s out-of-court statements that inculpated defendant, since such testimony is never admissible; it was, however, harmless error because the evidence of defendant’s guilt was substantial. 14-2-4431 State v. Darren D. Fish, App. Div. (11 pp.) Where defendant was convicted of cocaine possession, trial court erred in sentencing defendant to an extended term as a persistent offender, since the judge failed to apply the multistep analysis set forth in State v. Dunbar, 108 N.J. 80 (1987). 14-2-4432 State v. Richard Portuondo, App. Div. (12 pp.) Trial court erred in dismissing fencing charge on grounds that the fencing statute contains neither a penalty provision nor language to suggest the application of the theft general penalty provision, N.J.S.A. 2C:20-2b, since N.J.S.A. 2C:20-7.1 is the link between the two statutes that allows theft penalty provisions to be applied to fencing. [Approved for publication Nov. 30, 1994.][Available online in N.J. Full-Text Decisions.] 14-2-4433 State v. Alex Sanchez, App. Div. (6 pp.) Where defendant and co-defendant were convicted of second-degree robbery, trial court erred in denying a severance motion, since defendant’s case rested upon the exculpatory testimony of a co-defendant, who was afraid of prejudicing his own defense if he took the stand. [See related case no. 4434.] 14-2-4434 State v. Juan Sanchez, App. Div. (6 pp.) In the closing argument of a second-degree robbery trial, prosecutor properly stated that (1) the victim was a cripple, since prosecutor was referring to evidence regarding victim’s physical state, and (2) victim’s husband had a perfect memory, since both remarks responsed to defense counsel’s summation comments. [See related case no.4433.] CRIMINAL LAW AND PROCEDURE – ALCOHOLIC BEVERAGES 14-2-4435 State v. Victor Sandstrom, App. Div. (8 pp.) Where defendant was convicted of drunk driving, trial court properly admitted Breathalyzer results, even though Breathalyzer’s inspection certificate was issued more than 30 days before the defendant’s Breathalyzer test and a post-test inspection certificate disclosed a malfunction. [Approved for publication Nov. 30, 1994.][Available online in N.J. Full-Text Decisions.] PLEASE NOTE the following cases have been approved for publication: 04-2-4407 In re the Matter of the Appointment of Counsel to CLM Constr. Co. (Nov. 29, 1994); 14-2-4419 State v. Andre Saunders (Nov. 29, 1994).[Both available online in N.J. Full-Text Decisions.]

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