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Vol. 3 No. 69 DECISIONS RELEASED APRIL 12, 1995 ADMINISTRATIVE LAW AND PROCEDURE — ENVIRONMENT 01-2-5395 State of N.J. Dept. of Environmental Protection and Energy v. Robert Juliano, et al., App. Div. (4 pp.) An administrative finding that the defendants’ mowing of protected wetlands was prohibited by statute and regulations was supported by credible evidence and must be upheld, but the imposition of a penalty was unreasonable and arbitrary and is reversed. BANKING 06-1-5396 N.J. Steel Corp, et al. v. Rupert Warburton, et al., Supreme Ct. (26 pp.) Since Midlantic Bank failed to exercise ordinary care in paying checks issued as part of a scheme to defraud the plaintiff, it may not invoke plaintiff’s negligence as a defense, and because the bank is strictly liable for paying items that were not “properly payable” under banking statutes, that liability removes any defense that the bank might have against the plaintiff; therefore, the bank must bear the entire loss. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE 07-2-5397 ERM Partnership v. Edward W. Weingartner, Jr., et al., App. Div. (9 pp.) Although defendants clearly explained why they failed to oppose summary judgment motions filed by the RTC in a foreclosure matter, they failed to show that they had a meritorious defense, and the trial judge was correct in denying both their initial motion to vacate the final foreclosure judgment and the motion for reconsideration. FAMILY LAW 20-2-5398 Judith Williams v. James E, Williams, App. Div. (5 pp.) Where, as part of an overall settlement, husband agreed to be responsible for repayment of a joint mortgage which both parties believed to be $29,000, and the amount actually was higher, such mutual mistake resulted in an injustice and the court properly exercised its discretion to reform the settlement to provide that the wife would pay half of the excess over the $29,000 value. GOVERNMENT 21-1-5399 In the Matter of the Municipal Election … for legislative mandate is clear that, in elections using electronically-tabulated ballots, a write-in vote will be valid only if it is both written in and punched on the ballot card, 15 write-in votes for candidate (who lost by only five votes) which were not also punched on ballot cards were properly invalidated. [Available online in N.J. Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-5400 Mae Borden v. Isadore Newsome, Jr., et al., App. Div. (4 pp.) Plaintiff’s complaint should not have been dismissed because she did not submit a certification as to the impact the injuries from the accident had on her lifestyle where the basic information was contained in the physicians’ statements, and the court should have adjourned the motion to permit plaintiff to submit supplemental information. NEGLIGENCE 31-2-5401 Joseph Penn v. Rite Aid of N.J., Inc., et al., App. Div. (3 pp.) Where store’s employees were responsible for placing a box of lighter fluid in one of the aisles and a shopper later fell on the box and was injured, the store breached a duty owed to the shopper, and a judgment for the defendant was improper. 31-2-5402 Susan Ciavarro, et al. v. Franklin Shop-Rite, et al., App. Div. (8 pp.) Where trial had been set down peremptorily, and one of defendant’s experts became unavailable, bifurcation of the liability and damages issue was within the trial judge’s sound discretion. CRIMINAL LAW AND PROCEDURE 14-2-5403 State v. James Ward, App. Div. (4 pp.) The trial judge abused his discretion by not granting defendant’s motion for a mistrial when the prosecutor, despite being told he could not mention defendant’s prior arrest while the defendant was in an alcohol rehabilitation facility, did so; in addition, the judge’s instruction was faulty. 14-2-5404 State v. Jose F. Sotomayor, App. Div. (12 pp.) Although adjudications of juvenile delinquency are not criminal convictions and are not admissible for the general purposes of impeaching a witness, they may be admitted if they have a bearing on the question of bias, prejudice, interest or ulterior motive, and, since witness’s prior delinquency adjudications had no bearing on these subjects, the trial judge properly excluded them. -

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