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Vol. 3 No. 64 DECISIONS RELEASED APRIL 5, 1995 CIVIL PROCEDURE 07-2-5328 Carmen Restrepo v. Barbara Birch, App. Div. (5 pp.) The trial judge erred when he denied plaintiff’s motion to amend her complaint at trial to correct the date of an accident, since there was no prejudice to defendant, who knew of the discrepancy from discovery procedures (and in fact planned to use it to challenge credibility) and since plaintiff was in no way responsible for her attorney s pleading and other procedural errors. 07-2-5329 Lorraine M. Marconi v. Anthony Marconi, et al., App. Div. (6 pp.) The trial judge abused his discretion in failing to grant plaintiff’s request for a continuance or a mistrial where plaintiff’s expert, whose testimony was crucial to prove that plaintiff’s injuries surpassed the verbal threshold, was unable to testify due to a severe snowstorm, and the judge wished to conclude the trial because of his own vacation schedule. COMMERCIAL TRANSACTIONS — ANTITRUST 08-2-5330 Cali Associates, et al. v. Borough of Caldwell, et al., App. Div. (6 pp.) The trial court correctly determined that municipality was exempt from liability (for unlawful delegation to developers of the determination as to who had access to its public sewerage plant) under both federal and state antitrust statutes because it acted within its broad authority to regulate sewerage facilities, but matter is remanded for determination of the damages, if any, to which plaintiffs are entitled apart from the antitrust statutes. CORRECTIONS 13-2-5331 Donald Heer, et al. v. E. Calvin Neubert, et al., App. Div. (11 pp.) Summary judgment was correctly granted to supervisors in corrections officers’ action for damages, challenging procedures by which officers had been ordered to submit to drug testing, since the administrative standard of “reasonable, individualized suspicion” could be satisfied by the use of a single, reliable informant. LABOR AND EMPLOYMENT 25-2-5332 Rutgers, the State University of N.J. v. Rutgers Council of AAUP Chapters, App. Div. (12 pp.) Where faculty members acted as witnesses at a grievance and then, when confidentiality was breached and a supervisor against whom they had testified learned of their testimony, the faculty members feared retaliation and filed a separate grievance for arbitration, their retaliation fear was prospective only, and they had not yet “been affected” within the meaning of the labor agreement providing for arbitration; the trial judge, therefore, erred when he ordered arbitration, since this impermissibly expanded the scope of the parties’ labor agreement. NEGLIGENCE 31-2-5333 Barbara Sanchirico v. Vernon Valley Recreation Assn., Inc. et al., App. Div. (5 pp.) In a case arising out of infant plaintiff’s injuries sustained on an amusement park ride, the trial court erred when it concluded that there was a lack of evidence that plaintiff had done anything wrong and therefore declined defendant’s request to charge the jury on comparative negligence, since there was some evidence offered and the jury should be the trier of fact. CRIMINAL LAW AND PROCEDURE 14-2-5334 State of New Jersey v. Demetrius Marcel Diaz, App. Div. (7 pp.) Since the conviction for possession of a weapon for an unlawful purpose is not based on actions separate from the actual shooting (charge of passion/provocation manslaughter), merger is required and the trial judge erred by failing to merge the counts. 14-2-5335 State of New Jersey v. John Ellis, App. Div. (21 pp.) Since expert testimony concerning the Battered Woman’s Syndrome can be introduced to explain a victim’s late reporting of events, but not as evidence that the crime actually occurred, the judge committed reversible error in failing to give the jury a limiting instruction on the admission of this testimony. [Approved for publication April 5, 1995.] [Available online in N.J. Full-Text Decisions.] OTHER OPINIONS APPROVED FOR PUBLICATION: Janis G. Schulmeisters v. Vizbulite I. Schulmeisters (March 5, 1993 — Chancery Division, Family Part – Bergen County); 14-2-5043 State of New Jersey v. James F. Sheridan (Feb. 27, 1995) [Both available online in N.J. Full-Text Decisions.] -

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