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Vol. 3 No. 60 DECISIONS RELEASED MARCH 30, 1995 ATTORNEY/CLIENT — GIFTS 04-2-5280 Paula Depontrex Oachs v. Stanley P. Stanton, et al., App. Div. (10 pp.) Although attorney was not in a position to render independent advice to his brother’s close friend, it does not necessarily invalidate the friend’s transfer of her home to the attorney’s brother as long as the friend fully understood the consequences of her act, and matter must be remanded to determine her understanding. [Approved for publication March 30, 1995. Available online in New Jersey Libraries.] CONSTITUTIONAL LAW — RELIGION 12-2-5281 Deacon Willie Daniels, et al. v. Rev. David G. Evans, et al., App. Div. (4 pp.) Appeals court held that it would constitute impermissible judicial intrusion on matters of church doctrine to determine whether church improperly dismissed eight deacons, and summary judgment in favor of church was proper. CONTRACTS 11-2-5282 John Burke, Jr. v. Rieder Land Technology, Inc., App. Div. (6 pp.) Since the counsel fee award in this breach of contract matter was almost double the actual damage recovery, it was plainly disproportionate and matter is remanded, where the issue of pre-judgment interest must also be considered. INSURANCE 23-2-5283 Atlantic Employers Ins. Co., et al. v. Chartwell Manor School, et al., App. Div. (17 pp.) Where policy insuring boarding school and headmaster, while excluding intentional acts, contained an endorsement that specifically covered corporal punishment, there is a factual determination to be made whether the acts committed by the headmaster were of an intentional, sexual nature or done within the scope of corporal punishment, and therefore covered, so summary judgment was correctly denied to insurance company. [Approved for publication Mar. 30, 1995. Available online in New Jersey Libraries.] INSURANCE — VERBAL THRESHOLD 23-2-5284 Albert W. Samogi, Jr., et al. v. Philip Santaniello, App. Div. (6 pp.) Where plaintiff’s orthopedist discharged plaintiff in satisfactory condition six months after an accident, and he did not again seek treatment for almost two years until just prior to filing his lawsuit, and where neither of his doctors were able to document with objective, credible medical evidence that plaintiff’s injuries as a result of the accident caused his disabilities, summary judgment was properly granted to defendants, and a supplemental medical report provided on a motion to reconsider was nothing more than conclusory. NEGLIGENCE — LIMITATIONS 31-2-5285 Joana Ramirez v. Clifton E. Moore, Jr., et al., App. Div. (7 pp.) Where plaintiff knew there was a viable cause of action for personal injury against defendant, and knew where defendant lived, the fact that defendant misstated his insurance coverage is not an excuse for plaintiff’s counsel’s lack of due diligence in investigating plaintiff’s assets and actual coverage before the statute of limitations ran, and does not support tolling of the statute on the ground of equitable estoppel. PRODUCTS LIABILITY — ASBESTOS 32-2-5286 Doris Ulrich, et al. v. Combustion Engineering, et al., App. Div. (11 pp.) The trial judge correctly entered a judgment n.o.v. in favor of plaintiff since plaintiff’s medical expert’s testimony regarding decedent’s cancer, decline and lack of prior history was unrefuted and reasonable minds could not differ that plaintiff’s decedent’s exposure to asbestos was either the sole cause, or a substantial contributing cause, of his death. PUBLIC EMPLOYEES 33-2-5287 Matthew White v. State of New Jersey, Dept. of Transportation, App. Div. (9 pp.) Where buyer in department’s procurement division was accused of unethical conduct and never explained his failure to appear at a hearing, and didn’t sufficiently produce proof that he had retained counsel, who allegedly was hospitalized, or proof of the attorney’s hospitalization, the administrative law judge acted appropriately in permitting the state to proceed with proofs ex parte, and the decision to terminate the employee is affirmed. REAL PROPERTY — DUES AND ASSESSMENTS 34-2-5288 Highland Lakes Country Club and Community Ass’n v. Anthony H. Spataro, et al., App. Div. (10 pp.) In an action for unpaid dues and maintenance assessments, while landowners must pay dues and assessments because these covenants run with the land, since the lot which defendants purchased in the lake community is unbuildable, defendants receive no benefits from the community association, and the trial judge fashioned an appropriate remedy when he held that the judgment amount must be limited to the land’s value, and also limited its enforceability solely as a lien on the land, not as the landowner’s personal obligation. 34-2-5289 Highland Lakes Country Club and Community Ass’n v. Aine Glavey, a/k/a Anne M. Glavey, App. Div. (8 pp.) Since maintenance dues or assessments are the financial lifeblood of a community association, there is no authority for individual members, such as plaintiff, to resort to self-help in withholding charges due to dissatisfaction with the maintenance or the presence or absence of facilities, and the judgment against landowner for unpaid dues and assessments was proper, although matter is remanded for recalculation of amount due. TAXATION 35-2-5290 Plaza 12 Associates v. Carteret Borough, App. Div. (8 pp.) In an action challenging an assessment, trial judge mistakenly exercised his discretion in precluding evidence regarding leases because the leases were not provided as attachments to answers to interrogatories (which resulted in dismissal because owner could not prove value), where landowner provided the same information contained in the leases by supplying the rent rolls, and there was, therefore, no prejudice to the municipality. [Approved for publication March 30, 1995. Available online in New Jersey Libraries.] CRIMINAL LAW AND PROCEDURE 14-2-5291 State of New Jersey v. David H. Morse, App. Div. (8 pp.) Although a notice of ejection was issued and in effect barring defendant from returning to casino, the judge was incorrect in concluding that defendant’s reentry without the casino’s permission was a violation of the defiant trespass statute since no competent evidence supported the original charge that he violated a casino gaming rule and the ejection notice was, therefore, invalid. 14-2-5292 State of New Jersey v. Charles Temkin, App. Div. (7 pp.) The defendant was properly found guilty of defiant trespass where he violated the casino’s “no standing” rule in the baccarat pit and was ejected after many warnings, then turned around and reentered, with no intention of complying with the lawful conditions imposed by the casino. 14-2-5293 State of New Jersey v. Yero A. Noble, App. Div. (9 pp.) If a defendant is convicted of a school-zone drug offense, he must serve a mandatory period of parole ineligibility (absent a negotiated plea), and therefore the judge’s imposition of a five-year indeterminate term pursuant to youthful offender sentencing provisions is illegal and reversed. -

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