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Vol. 3 No. 91 DECISIONS RELEASED MAY 16, 1995 ADMINISTRATIVE LAW AND PROCEDURE 1-2-5637 Donald Cusson, et al. v. N.J. Racing Comm’n, App. Div. (6 pp.) Six-month suspensions for three parimutuel clerks is arbitrary since it was predicated on a factual scenario that the commission had specifically rejected and since the commission had refused to consider the draconian impact on the clerks’ careers, and the suspensions are reduced to 30 days. AUTOMOBILES 5-2-5638 State v. Clifford J. Tekel, App. Div. (11 pp.) A prior conviction for operating a motor vehicle while under the influence of intoxicating liquor satisfies the language of “a subsequent offense under this section” contained in N.J.S.A. 39:4-50.4a (refusal to take a Breathalyzer test), thereby mandating the imposition of the enhanced penalty of a two-year suspension. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE 7-2-5639 Bakhtaver Irani, et al. v. K-mart Corp., App. Div. (8 pp.) Dismissal with prejudice set aside where plaintiff’s counsel received conflicting communications as to the trial date from different voices in the court system and faxed a timely letter to the judge stating she would appear if necessary, which was not received before the dismissal. [Available online in N.J. Full-Text Decisions.] CONTRACTS 11-2-5640 Leon Machinery Co., Inc. v. Atlantic Richfield Co., et al., App. Div. (14 pp.) Jury verdict overturned because trial court erred in admitting parol evidence on a contract term that was so at variance with the writings and because the statute of frauds should not have been applied to an oral agreement that the parties did not expect to perform, but could have performed, within the year. 11-2-5641 Rene Alcid v. Joseph Giampapa, et al., App. Div. (7 pp.) Third-party complaint properly dismissed on summary judgment motion because parole evidence rule bars extrinsic proof contradicting the express terms of a written delivery route contract, but third-party plaintiff is granted leave, notwithstanding entire controversy doctrine, to file an amended complaint asking for relief under the franchise practice act, consumer fraud act and other grounds. INSURANCE — VERBAL THRESHOLD 23-2-5642 Diane M. Cuccia, et al. v. Township of Dover, et al., App. Div. (2 pp.) Dismissal of complaint is affirmed where the verbal threshold applied even though the automobile involved was owned by a municipality; Legislature did not intend to exclude all government-owned vehicles from the applicability of the no-fault act. INSURANCE 23-2-5643 Dorothy M. Blackburn v. John K. Ganzel, III, App. Div. (3 pp.) Automobile arbitration award confirmed but without the arbitrators’ extra finding that the defendant was a “permissive user” of the motorcycle, since that concept addresses insurance coverage issues that are outside the scope of the arbitration. LAND USE 26-1-5644 Steven Nickels, et al. v. City of Wildwood, et al., Supreme Ct. (10 pp.) By authorizing the expansion of existing amusement piers, a nonconforming use, without declaring them to be a permitted use, Wildwood’s zoning ordinance is invalid under Avalon Home & Land Owners Ass’n v. Borough of Avalon. [Available online in N.J. Full-Text Decisions.] 26-2-5645 Irma Imperatore, et al. v. Planning Board of the Borough of Franklin Lakes, et al., App. Div. (7 pp.) Landowners entitled to minor subdivision approval since 1) no new variance was required for either lot, 2) a prior consent judgment granting a prior variance did not bar a future subdivision because no such prohibition was recited in the judgment, and 3) an amendatory ordinance enacted two months after the Law Division judgment in favor of landowners does not, under the time-of-decision rule, divest the landowners of their subdivision grant, which is vested for two years following the Law Division judgment date. WRONGFUL DEATH — PHYSICIAN/PATIENT 40-2-5646 Kejoo Ahn v. Dr. Chung Kim, et al., App. Div. (30 pp.) Defense verdict set aside because trial judge improperly instructed jury that there was a presumption against suicide, which instruction tainted the jury’s special verdicts on both the negligence and causation-of-death issues; on retrial the court must avoid charging the jury about both the presumption against suicide and the statutory presumption of death. CRIMINAL LAW AND PROCEDURE — CONSTITUTIONAL LAW 14-2-5647 State v. Willie Biggins, App. Div. (11 pp.) Conviction reversed for violations of State v. Gilmore’s ban against jury selection on the basis of race where the prosecutor exercised peremptories against two of the three African-American jurors based on his “hunch” that their body language exhibited a generalized disrespect for the system; the fact that the jury contained one African American, which is more than the percentage of African Americans in the vicinage, does not cure the constitutionally impermissible reason for exclusion.

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