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Vol. 3 No. 65 DECISIONS RELEASED APRIL 6, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-5336 N.Y. Outdoor Advertising Co., Inc., App. Div. (11 pp.) The transportation commissioner correctly applied state regulations in determining that plaintiff’s outdoor advertising sign violated various height and setback regulations and had to be removed, but the fine is modified. FAMILY LAW 20-4-5337 Janis G. Schulmeisters v. Vizbulite I. Schulmeisters, Chancery Div. (7 pp.) Where defendant filed for divorce in New York, and plaintiff retained New York counsel, filed an answer, and willingly participated in all discovery, New Jersey will not grant plaintiff’s divorce request (which would bifurcate the New York case) simply because the plaintiff is dissatisfied with the progress of the case in New York, which will not grant the divorce until all equitable distribution issues are resolved. [Approved for publication April 4, 1995.] [Available online in N.J. Full-Text Decisions] 20-2-5338 Kathryn Nicholson v. Nicholas Nicholson, App. Div. (4 pp.) Denial of father’s motion seeking adjudication of his daughter’s emancipation (and thus termination of his support obligation) was properly denied since the child was still continuing her education, and the estrangement of the daughter and father has no effect on his obligation. INSURANCE — VERBAL THRESHOLD 23-2-5339 Elaine M. Tabatneck v. Joseph Scaringello, App. Div. (6 pp.) Although the jury did not find that the plaintiff’s injuries were “permanent” or constituted a “significant limitation” under categories 7 or 8 of the verbal threshold statute, defendant’s contention that this mandates a reduction in the damages awarded under her successful claim under category 9 of the statute is meritless since there is no correlation between the categories and any damage award. 23-2- 5340 Florence Wichelns v. Walter W. Wichelns, et al., App. Div. (3 pp.) Where the trial court dismissed plaintiff’s case, finding that her proofs failed to show objective medical evidence of knee injury, but, in the five-month interim between the granting of defendant’s motion for summary judgment and the rendering of the judge’s written opinion, the plaintiff had surgery which clearly showed a tear of the medial meniscus, plaintiff will be permitted to apply for post-judgment relief on the ground of newly-discovered evidence. PHYSICIAN/PATIENT 29-2-5341 Barbara Anderson v. Dr. Joseph Picciotti, App. Div. (8 pp.) While evidence was sufficient for jury to find that the doctor committed actionable malpractice in failing to administer intravenous antibiotics before amputating patient’s toe, the trial judge committed reversible error when he declined to give the jury a Scafidi charge (regarding damage apportionment between preexisting condition and defendant’s negligence, and to determine the percentage value of lost chance), despite a timely request, and a new trial is mandated. CRIMINAL LAW AND PROCEDURE 14-2-5342 State v. Leon Henry, App. Div. (10 pp.) The order suppressing evidence found in defendant’s apartment on the basis of a non-consensual, warrantless search is reversed, since the defendant’s possession of a controlled substance, coupled with the “hot pursuit” involved in this case, satisfy the “exigent circumstances” exception to the warrant requirement. 14-2-5343 State v. Elijah Hamm, App. Div. (20 pp.) The challenged jury instructions regarding the defendant’s status as a “king-pin” narcotics dealer, while incomplete or not sufficiently expansive as defined in the Alexander case, were certainly not erroneous or misleading, and defendant was fairly convicted. -

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