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Vol. 3 No. 120 DECISIONS RELEASED JUNE 27, 1995 STATE COURT CASES CONTRACTS — FRAUD 11-2-5998 Yusof O. Gurdal, et al. v. Debra S. Minuto, et al., App. Div. (6 pp.) Since defendants induced plaintiffs to enter into partnership contract to construct and operate carwash on the promise that they had all the permits needed, and defendants knew that a sewer extension permit had expired, they were guilty of fraud, and when a new permit could not be obtained, and the carwash could not be built, the judgment against defendants for the $250,000 contributed to partnership by plaintiffs (plus interest) was proper and is affirmed. FAMILY LAW 20-2-5999 Ruby Schepps v. Aaron David Schepps, App. Div. (24 pp.) In ruling that the wife had not made out a prima facie case of changed circumstances justifiying alimony modification, the trial judge made a number of errors– including not taking note of the significant increase in the cost of living since 1971 when the agreement was signed–in requiring the wife to show that she could not support herself at all (when the law requires that she show only substantial impairment), and improperly focusing on the “worth, nature and extent” of wife’s evidence, rather than “its existence,” viewed in the light most favorable to her, and matter is remanded. GOVERNMENT 21-2-6000 Sen. John A. Lynch, et al. v. Brian W. Clymer, State Treasurer, et al., App. Div. (8 pp.) The state’s interest in not disclosing a letter it received from the Internal Revenue Service–which concerns the impact of pension changes on the state pension system–is outweighed by the interests in and right to such information of the state pension system and their beneficiaries, and trial court order dismissing plaintiffs’ complaint to compel such information is reversed and remanded for entry of an order directing the document’s release. [Approved for publication June 22, 1995.] [Available online in N.J. Full-Text Opinions.] INSURANCE — VERBAL THRESHOLD 23-2-6001 Janet Jones v. N.J. Transit Corp., App. Div. (2 pp.) The dismissal of plaintiff’s noneconomic claims against a public entity was proper since she did not prove the required “permanent loss of a bodily function, permanent disfigurement or dismemberment,” but her claim for economic loss, not adjudicated below, should not have been dismissed without a determination on the merits, and the matter is therefore remanded for that determination. 23-2-6002 Jean Beauchamp, et al. v. Dina Moore, et al., App. Div. (6 pp.) Plaintiff’s case was properly dismissed where, although she submitted 1993 and 1994 reports from her physician, those reports were based on treatments that ended in 1992, since her medical proofs were stale, and, even if they were not, they fail to establish permanency or significant limitation within the statutory requirements. 23-2-6003 Nancy A. McCarthy, et al. v. Gennario Gubitosi, et al., App. Div. (8 pp.) Since the motion judge, in granting an adjournment so that plaintiff could obtain supplemental medical proofs, did not enter an order limiting those proofs, he erred when he failed to consider a doctor’s report which had not been before the court on the motion’s first argument date, since the interests of justice are best served in allowing that report, which does bring plaintiff over the threshold, and any question concerning the circumstances under which the report was obtained can be argued to affect the weight of the testimony at trial. 23-2-6004 Phyllis Salton, et al. v. John P. Desmond, App. Div. (6 pp.) Although there was an inconsistency on the existence of spasm between plaintiff’s doctor’s written report and his certification submitted in opposition to the defense motion for summary judgment, such issues are for the jury to weigh, and the judge should not have dismissed plaintiff’s case. INSURANCE — P.I.P. 23-2-6005 Manubhai N. Mevada v. Allstate Ins.Co., et al., App. Div. (5 pp.) Although out-of-state insurers licensed to do business in New Jersey must comply with the state’s P.I.P. statute whenever the insured vehicle is “used or operated” in the state, the words “used or operated” do not require the insurer to provide P.I.P. benefits to the insured for injuries suffered in an accident while he was a pedestrian, and the fact that the pedestrian/insured may have been walking to his car with the ultimate intent to enter it and use it does not mean he was “using” it while he was a pedestrian, and the pedestrian should recover his PIP benefits from the insurer of the vehicle that struck him. TAXATION 35-2-6006 Romulus Development Corp. v. Twp. of Weehawken, App. Div. (2 pp.) Where, pending its appeal of its 1992 assessment, the taxpayer paid its 1992 taxes in full but later did not pay the 1993 and 1994 taxes in full while the appeals were still pending, and where Tax Court ruled in 1994 that a reduction of the 1992 assessment was justified, which the township appealed, the Tax Court correctly ruled that the Freeze Act applies to the 1993 and 1994 tax years, despite the Township’s appeal of the 1992 assessment, and this decision is affirmed. WORKERS’ COMPENSATION 39-2-6007 Agnes Carhart v. Westinghouse Electric Corp., App. Div. (3 pp.) Petitioner was properly awarded dependency claim benefits arising from her husband’s death, despite respondent’s argument that she did not give “legal statutory notice” within 90 days that decedent had contracted a compensable occupational disease arising out of his employment, since (1) respondent waived the notice defense by failing to raise the issue in its pretrial memoranda, and (2) even if not waived, the defense is not viable since the petitioner gave timely notice after she knew that she had a dependency claim and there was no evidence that the petitioner knew or should have known of such a claim more than 90 days prior to her filing. CRIMINAL LAW AND PROCEDURE 14-2-6008 State v. John A. Candeias, App. Div. (8 pp.) Where the police officer found the defendant passed out and intoxicated behind the steering wheel of his car in an off-the-road parking lot, the municipal court judge and the Law Division judge should have made a finding as to whether the proofs warranted a finding that the defendant intended to drive and actually operate the vehicle while intoxicated, and the conviction is reversed and remanded for such a determination. 14-2-6009 State v. Howard S. Davis, App. Div. (8 pp.) Where defendant’s proofs showed that he acted in self-defense during an altercation with his victim, since the court erred in failing to instruct the jury on self-defense, reversal of defendant s aggravated-assault conviction is required. 14-2-6010 State v. Manuel Matos, App. Div. (9 pp.) Since the state proferred alternative theories that the defendant had either acted knowingly or recklessly with extreme indifference to the value of human life in pushing his victim down a flight of stairs, and it is not obvious that the judge’s charge clearly instructed the jury that the defendant must have been aware of the risk of serious bodily injury to the victim as a probable consequence when he kicked and punched him, reversal is required.

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