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Vol. 3 No. 70 DECISIONS RELEASED APRIL 13, 1995 AGENCY AND PARTNERSHIP 02-2-5406 Richard F. McCloskey v. William A. Wells, et al.,App. Div. (11 pp.) In limited partner’s appeal claiming that an award of additional distributions was insufficient, partner’s argument that other partner violated his fiduciary duty and the award should have been greater, failed because he did not sustain his burden of proof. CONTRACTS — MUNICIPALITIES 11-2-5407 Wanaque Borough Sewerage Authority v. Twp. of West Milford, et al., App. Div. (12 pp.) The trial judge should not have entered an order dismissing plaintiff’s claims for share of costs incurred in planning and designing an aborted regional sewerage facility against municipality and its sewerage authority, since recovery may be allowed under implied contract theory where defendants received a benefit from the services provided, and remand is required. 11-2-5408 Authorized Leasing, Inc. v. Donna Stine, et al., App. Div. (8 pp.) In lessee’s case for damages against lessor for wrongful repossession and sale of her Jeep, remand is required to determine whether lessor was in default on the vehicle lease at the time of repossession and, if so, by how much, and whether lessor was estopped from repossession when it had accepted lessee’s late payment. LABOR AND EMPLOYMENT 25-2-5409 Mary F. McCarthy v. Bd. of Review, et al., App. Div. (3 pp.) The board could have reasonably found on the evidence presented that the procedure used by employer to transport wheelchair patients, requiring van driver to work without the help of an aide, did not pose a significant injury risk, and therefore the board’s decision–that driver (who resigned because she alleged this risk) left her job without good cause attributable to work and was disqualified for unemployment benefits–is affirmed. LAND USE 26-2-5410 Frank DiMisa, et al. v. Twp of Holmdel, et al., App. Div. (22 pp.) Final judgment directing township and its planning board to return to developer development fees it collected after the date the Supreme Court decided Holmdel Builders Ass’n v. Twp. of Holmdel, 121 N.J. 550 (1990), which invalidated the township’s development fee ordinance, was proper. REAL PROPERTY 34-2-5411 Juliette Fendel, et al. v. Monica Swire Martin, App. Div. (11 pp.) The trial court’s original decision in partition action requiring defendant, who had first right of refusal, to match third-party offer, less brokerage commission, and denying defendant additional credit for anticipated repairs, was well-founded and did not constitute an abuse of discretion, but the subsequent decision on reconsideration to disallow the credit for commissions must be reversed. 34-2-5412 John Magoulis v. Planning Bd. of the Borough of Ringwood, et al., App. Div. (5 pp.) (1) Final judgment granting plaintiff an easement by necessity across certain property referred to as the “pipestem” was proper since all of the elements of such an easement were present. (2) Adjudication that the pipestem had been dedicated to public use by the original subdivider of the property was supported by the record and is affirmed. 34-2-5413 Parkway Mortgage, Inc. v. Roberto Orozco, et al., App. Div. (10 pp.) Trial judge’s findings that mortgage “broker” was not mortgage company’s agent, that he fraudulently induced mortgagors to proceed with financing, and intentionally led them to believe that the mortgage was canceled, as they had requested, although this was not the case, were based upon sufficient credible evidence, and judgment in favor of mortgagors against “broker” is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-5414 State v. Roscoe Wallace, App. Div. (7 pp.) While the search of the defendant’s vehicle may not qualify as a search incidental to and contemporaneous with a lawful arrest under the decision in State v. Pierce, 136 N.J. 184 (1994) (since defendant was handcuffed in the rear of the police vehicle, and his passenger had already been released), this case may not be applied retroactively and cannot vitiate a search that was proper at the time it was made; therefore, the decision not to suppress the evidence is affirmed. EDITOR’S NOTE: Due to the religious holidays, no orders will be filled and no Alert will be issued tomorrow, April 14. - A

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