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Vol. 3 No. 114 – JUNE 19, 1995 STATE COURT CASES ATTORNEY/CLIENT — EVIDENCE 04-2-5917 James Stango, et al. v. Leonard Mendola, et al., App. Div. (14 pp.) In a case where one painter sued another for injuries he received when he fell off a ladder, the judge did not err in allowing the defense to call plaintiff’s attorney as a witness (regarding the ladder manufacturer’s bankruptcy) since the matter about which he testified was uncontested and should have been stipulated, and since plaintiff’s attorney chose to testify rather to stipulate to the fact, he is now estopped from appealing an option he chose, and plaintiff’s motion for a new trial was properly denied. AUTOMOBILES — BUSES 05-2-5918 N.J. Div. of Motor Vehicles v. Yitzchak, App. Div. (3 pp.) Where defendant bus driver, who was involved in a fatal accident, had his license suspended based on an eyewitness’s testimony who said that she had seen a bus from the defendant’s company on that same day driving carelessly, but where there was no evidence to show that the bus the eyewitness had observed was defendant’s, the assumption that the bus was the defendant’s because no evidence had been produced to disprove that fact was erroneous, and the suspension is reversed and the matter is remanded to ascertain whether the decision would have been different but for the offending evidence. FAMILY LAW 20-2-5919 Michael Georgiadis v. Leona Georgiadis, App. Div. (8 pp.) Where a divorce judgment required husband to make a good-faith effort to sell real estate for its fair-market value to fund settlement for wife, and he prevented a sale while the property’s value declined, it was not error for the judge to enter an order providing that the property would be listed at a certain amount for a certain period of time, after which the price would be reduced for another period of time, and so on, as this was a reasonable effort on the judge’s part to implement the divorce judgment’s terms despite the husband’s obstructionism. INSURANCE — VERBAL THRESHOLD 23-2-5920 Ruth Iwaneczko, et al. v. Maria Carrasquill, et al., App. Div. (4 pp.) Where plaintiff’s doctors’ reports, to the extent that they reflect objective medical findings, concluded that the changes found in plaintiff’s back were degenerative as opposed to traumatically induced, summary judgment was properly entered in favor of the defendants for failure of plaintiff to meet the requirements of the verbal threshold. 23-2-5921 Steven Perez v. Johnny Compian, et al., App. Div. (7 pp.) The judge did not err in granting summary judgment to the defendants (effectively overruling the decision of another Law Division judge who earlier had denied the defense motion), since there was a fundamental misapplication of the law in the first judge’s decision when he did not require plaintiff to establish, through an expert, a nexus between his claimed disability and the injuries sustained in the accident. LABOR AND EMPLOYMENT 25-2-5922 Joan Hay v. Bd. of Review, App. Div. (5 pp.) Where employee would have been eligible for certain benefits if she had been counseled by unemployment personnel to hold off filing her application for two months, although she later was found not to be entitled to some of the benefits she received, there is no reason why, when she refunds the benefits she was not entitled to, she should have to refund the benefits that the state concedes she clearly would have been entitled to had she filed later. [Approved for publication June 19, 1995.] 25-2-5923 Bebra R. Perez v. Bd. of Review, App. Div. (6 pp.) Although the employee/nurse did establish good cause attributable to her work for leaving her job where her boss humiliated and shouted at her in front of patients and coworkers, board properly denied benefits claim because plaintiff could not be considered “lawfully present for work nor “permanently residing in New Jersey under color of law since her work visa had expired, and she did not marry her husband, a citizen, until her base period had expired. 25-2-5924 Maureen E. Cawley v. Bd. of Review, App. Div. (4 pp.) Since the record does not disclose evidence of onerous working requirements or medical problems caused by the working conditions, but, instead shows that differences arose between claimant and her superiors over the working relationships and imposition of policy and production changes, claimant has not shown that her health was affected due to job stress, and she was properly denied unemployment compensation benefits. NEGLIGENCE 31-2-5925 Rosetta Johnson v. State, Office of the Public Guardian for Elderly Adults, et al., App. Div. (4 pp.) Where grandmother was made a ward of the state, which, as her guardian, contacted the post office and had all mail sent to its office, and where granddaughter’s mail also was forwarded, causing her to miss many important mailings, granddaughter’s suit against the state for negligence was improperly dismissed on summary judgment since the record did not contain the actual change of address form, but only a cover letter, and the information on the change of address form is material to a determination of negligence in this case. REAL PROPERTY 34-2-5926 John G. Alfieri, et al. v. Peter B. Goldberg, et al., App. Div. (6 pp.) The entry of judgment in favor of buyers, rescinding a contract for the sale of real estate based upon the existence of a gas-line easement, was premature since the record was not complete enough to make a determination as to whether the existence of the easement would substantially interfere with the use of the property for residential purposes, and the matter is therefore remanded. CRIMINAL LAW AND PROCEDURE 14-2-5927 State v. Lawrence Walker, App. Div. (7 pp.) While officer may have had probable cause to stop vehicle for motor vehicle violations, he did not have cause to pat down the defendant, a passenger in the vehicle, since there were not “specific, articulable facts which would demonstrate that a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger, and the cocaine found on defendant should have been suppressed. [Approved for publication June 19, 1995.] FEDERAL COURT CASES ENVIRONMENT – CONSTITUTIONAL LAW — COMMERCE 17-7-5928 Atlantic Coast Demolition & Recycling, Inc., et al. v. Bd. of Chosen Freeholders of Atlantic County, et al., U.S. Dist. Ct. (46 pp.) In plaintiffs’ Commerce Clause challenge to the validity of New Jersey’s waste-flow regulations (alleging that the regulations violate freedom of interstate trade): (1) Since Atlantic Coast has shown a likelihood of success on the merits, and that irreparable injury will occur which will outweigh the harm that granting a preliminary injunction would cause to the defendants and the public, the relief will be granted, but conditioned upon further submissions from the defendants regarding potentital alternatives to the current regulations and the impact of those regulations. (2) The applications of the waste management associations for broad injunctive relief are denied, since the likelihood of their success and showing of irreparable harm are outweighed by the harm that their request for preliminary relief would cause to the defendants and the public. (3) The municipal plaintiffs’ claims are dismissed because they cannot assert constitutional rights against the state or the county authorities. A

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