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Vol. 3 No. 105 – JUNE 6, 1995 STATE COURT CASES ADMINISTRATIVE LAW — ALCOHOLIC BEVERAGES 01-2-5785 Innkeeper, Inc., t/a Mason Jar v. Remington, Inc., et al., App. Div. (5 pp.) Where a caterer was evicted in a foreclosure proceeding, the Division of Alcoholic Beverage Control ruling that the eviction separated the liquor license from its location and the license could not be transferred to new business without a place-to-place transfer (thus subjecting new business to a provision in the local municipal ordinance prohibiting a license transfer to a location within 1000 feet of another licensed premises) was not arbitrary, unreasonable or capricious and is therefore affirmed. AGENCY AND PARTNERSHIP — PARTITION 02-2-5786 Robert L. Wegryn, et al. v. John Blumberg, et al., App. Div. (18 pp.) In a 14-year-old suit dealing with medical partnership’s dissolution, the trial judge erred in granting the defendant’s motion to set aside a 1984 judgment adopting a certain property valuation, since the defendant was aware of all of the allegedly “new evidence on which he based his 1987 challenge before the entry of the original 1984 order. JURISDICTION 24-2-5787 L&D Int’l. Co., Inc. v. Labudde Feed & Grain Co., et al., App. Div. (5 pp.) Since there were numerous contacts between the plaintiff, a New Jersey corporation, and the defendant Wisconsin corporation by telephone, fax and mail, and the contract between the parties, which was for a substantial amount, called for payment through a New Jersey bank, New Jersey has in personam jurisdiction over the defendant. LAND USE 26-1-5788 Manalapan Realty, L.P. v. Twp. Committee of the Twp. of Manalapan, et al., Supreme Ct. (41 pp.) Amendments to the Manalapan zoning ordinance (which ban the sale of lumber or building materials in a commercial zone) are substantially consistent with the municipality’s master plan and are, therefore, valid, even though the master plan created the zone to provide for a full array of retail uses. NEGLIGENCE 31-2-5789 Mark Slater, et al. v. Mundial Sports Group, Inc., et al., App. Div. (8 pp.) Although the promoter and sponsor paid the N.J. Sports and Exposition Authority for soccer-match security services, they were not responsible to assure that the security was sufficient, especially since the authority retained exclusive control over the security detail; therefore, sponsor and promoter owed no duty to a security guard who was injured in the eye by a bottle thrown by an unruly fan. PHYSICIAN/PATIENT — PROXIMATE CAUSE 29-2-5790 Cynthia Brown v. Mercer Medical Center, et al., App. Div. (12 pp.) Since anesthesiologist already had wrongfully intubated plaintiff’s esophagus instead of the trachea, and plaintiff therefore already had sustained brain damage before the surgeon even touched her and would have sustained the injury even if the surgeon never touched her, the fact that the surgeon did not have the patient’s informed consent was immaterial, and the jury could properly conclude that the surgeon’s actions were not the proximate cause of the plaintifff’s injury. PRODUCT LIABILITY 32-2-5791 Daniel McLaughlin, et al. v. Acme Pallet Co., Inc., et al., App. Div. (7 pp.) The trial judge did not err in refusing to apply the theory of alternative liability to distributors of pallets since it was either one or the other of the distributors, not both, who supplied the pallets to plaintiff’s employer, and not all potentially culpable parties were before the court since the plaintiffs made no effort to identify and join the distributors’ various manufacturing sources. [Approved for publication June 6, 1995.] WILLS, ESTATES AND TRUSTS — HOLOGRAPHIC WILLS 38-2-5792 In the Matter of the Estate of Frank M. Masi, deceased, App. Div. (5 pp.) On the record of undisputed facts, the trial court erred in deciding as a matter of law that summary judgment admitting the decedent’s purported holographic will to probate should be granted, since, as a matter of law, the letter, although addressed to decedent’s attorney and indicative of possible intent to change his will, was insufficient under R. 4:46-2 as a testamentary document in itself. WORKERS’ COMPENSATION 39-2-5793 Douglas G. Garner v. Grimm Corp., App. Div. (5 pp.) Where petitioner suffered an electrical shock at work which caused his arm to jerk back, and where he suffered problems with the arm for more than a year but never complained to his employer, the compensation judge appropriately dismissed petitioner’s claims, finding that, although the injury was suffered on the job, the petitioner failed to file notice with the employer in a timely fashion, and, in fact, hid the condition and thereby made it worse by not obtaining treatment. CRIMINAL LAW AND PROCEDURE 14-2-5794 State v. Robert F. Hery, App. Div. (6 pp.) (1) Testimony relating to defendant’s post-arrest silence and the prosecutor’s comments on it violated the defendant’s Fifth Amendment privilege against self-incrimination. (2) The trial judge’s failure to instruct the jury on the limited probative effect of defendant’s criminal conviction, to be considered only with reference to credibility, was plain error. 14-2-5795 State v. Gary David Stevenson, App. Div. (18 pp.) Although the objectives of burglary and robbery were not primarily independent of each other, did not involve separate threats of violence and were committed close together in time and place, there may be circumstances which justified the imposition of consecutive rather than concurrent sentences, and, since the judge did not state his reasons for imposing consecutive sentences, the case must be remanded for this purpose before the sentence can be reviewed on appeal. 14-2-5796 State v. G.H., App. Div. (27 pp.); 14-2-5797 State v. R.K., App. Div. (27 pp.); 14-2-5798 State v. M.H., App. Div. (25 pp.) In three companion cases of sexual abuse of children by their mother, aunt, half-sister and mother’s boyfriend, it was within the discretion of the trial judge, having heard the testimony of the lay witnesses, having the opinion of the doctor before him (which relied on diagnostic testing), and having personally viewed critical aspects of one child’s behavior, to rule that that child was “unavailable to testify because of an existing mental disability and the risk of further mental harm, and the lack of additional defense expert testimony was not reversible error. FEDERAL COURT CASES LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-5797 Keith Inniss v. William J. Perry, Sec’y. of Defense, U.S. Dist. Ct. (20 pp.) While 49-year-old black defense auditor from Barbados made out a prima facie case of age and racial discrimination alleging defense contractor failed to promote him, transferred him with a wrongful exit rating, and denied him overtime, the contractor showed legitimate nondiscriminatory reasons for its actions, since plaintiff had not demonstrated proficiency in all audit areas and also was reprimanded for telephone abuses; since plaintiff then did not meet his burden of showing that the legitimate reasons were pretextual and otherwise discriminatorily motivated (since his own perception that his work was satisfactory, contrary to his employer’s assessment, is insufficient to infer discriminatory motive), his case was properly dismissed on summary judgment. LABOR AND EMPLOYMENT –ERISA 25-7-5798 Trucking Employees of North Jersey Welfare Fund, Inc., U.S. Dist. Ct. (11 pp.) Even if the plaintiff, an employee pension benefit plan, was guilty of a breach of fiduciary duty, or if it had breached a collective bargaining agreement by failing to pay certain benefits, defendant, an employer obligated to make certain contributions, is still obligated to make those contributions, and such contributions are not limited to be made for union members only. FEDERAL OPINION APPROVED FOR PUBLICATION: 31-7-5784 Robin Straley, et al. v. United States of America, et al. [Filed June 1, 1995.]

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