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Vol. 3 No. 89 DECISIONS RELEASED MAY 12, 1995 AGENCY AND PARTNERSHIP 02-2-5613 American Urgy Medical Center, Inc., et al. v. Richard Lipsky, M.D., et al., App. Div. (33 pp.) In a case dealing with fraud, conversion, breach of fiduciary duty and other issues among partners involved in the breakup of two medical practices, there was sufficient evidence in the record to sustain the jury verdicts in favor of one partner as a matter of law, and the conduct of prevailing partner’s attorney, though unquestionably rude, unprofessional and probably contemptuous, did not support the judge vacating the verdicts sua sponte. ATTORNEYS — CONTEMPT 04-2-5614 In the Matter of Bruce H. Nagel, Esq., App. Div. (35 pp.) While the conduct of the attorney was outrageous and clearly contumacious throughout the trial, the attorney’s contempt conviction must be vacated since the trial judge failed to identify the specific contemptuous acts that formed the basis for the conviction and the matter is remanded, to be heard before a different judge. ATTORNEYS 04-1-5615 In the Matter of Patricia Lynne Hasbrouck, Esq., Supreme Ct. (16 pp.) The conduct of an attorney who committed criminal offenses–including one based on dishonesty such as in this case, where the attorney forged prescriptions–to “maintain an addiction” to controlled dangerous substances, warrants the imposition of a one-year suspension from the practice of law. [Available online in N.J. Full-Text Decisions.] 04-1-5616 In the Matter of Steven M. Schaffer, Esq., Supreme Ct. (18 pp.) Since suspension from the practice of law after rehabilitation may jeopardize the recovery, undermine rehabilitation, and incite a relapse, an addicted attorney who is guilty of a possessory drug offense may, in the future, seek to serve an appropriate suspension period on an accelerated basis while undertaking rehabilitation; the suspension of the attorney in this case was suspended. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE 07-2-5617 Interlink, USA v. Anthem Express, Inc., et al., App. Div. (4 pp.) Although the motion judge correctly found sound justification to set aside a default judgment entered against defendant, he inappropriately deprived the defendant of the opportunity to litigate the merits of the case by ordering them to post $109,000, which they were unable or unwilling to do. CONTRACTS 11-2-5618 Martin A. Welt v. Radiation Technology, Inc., et al., App. Div. (46 pp.) Despite the fact that certain wrongful conduct of the founder, president and board chairman of defendant nuclear plant contributed to plant’s license suspension, the consulting contract entered into between plant and founder as a condition of founder’s resignation was negotiated and enforceable. FAMILY LAW 20-2-5619 Linda R. Brinkman v. Richard Brinkman, App. Div. (11 pp.) Where parties stipulated value of stock, and the judge then reached his decisions on alimony, child support and equitable distribution based on the impact each would have on the others, the judge did not abuse his discretion in refusing to honor husband’s later request to discount the stock value and credit him with the amount of withholding taxes allegedly paid on the stock, since it would undermine the distributive scheme and related alimony. INSURANCE 23-2-5620 In the Matter of the Liquidation of Integrity Insurance Co., App. Div. (22 pp.) The obligee bank, under surety bonds issued by insurance company which later became insolvent, is entitled to coverage for defaults by investors after the termination of the insurance company’s bonds, and, therefore, the order denying indemnification to the obligee bank for those sums is reversed, but, consequently, so is that portion of the order declaring that the bank would then be entitled to the return of a portion of its premiums. [Approved for publication.] [Available online in N.J. Full- Text Decisions.] 23-2-5621 State Farm Mutual Automobile Ins. Co. v. State of N.J., Comm’r. of Ins., et al., App. Div. (51 pp.) State Farm’s constitutional “as-applied” challenge of the Fair Automobile Insurance Reform Act is without merit since the rates actually realized by State Farm were not confiscatory because it obtained about the same return on the average as its competitors nationally, who were not subject to the act’s surtaxes and assessments. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] LABOR AND EMPLOYMENT 25-2-5622 Mondial Distributing, Inc. v. Bd. of Review, et al., App. Div. (5 pp.) Although employee may have made an error in judgment in purchasing video game equipment for a friend from his employer’s competitor, his participation in procuring these games did not amount to a willful or deliberate act of misconduct connected to his work, and the board’s determination that he was entitled to unemployment benefits after his discharge is affirmed. LAND USE — RIPARIAN LANDS 26-2-5623 George Cain, et al. v. Planning Bd. of the Twp. of Long Beach, et al., App. Div. (7 pp.) Since the township’s ordinance simply precludes an upland lot owner from using a contiguous submerged lot to amass the necessary minimum square footage in order to render an otherwise undersized upland lot buildable, as plaintiffs tried to do, the ordinance should not have been declared invalid, and plaintiff’s subdivision should not have been granted. PUBLIC EMPLOYEES — POLICE OFFICERS 33-2-5624 Anthony F. De Gregorio v. State Dept. of Personnel, et al., App. Div. (8 pp.) Former police officer’s conviction of an offense involving dishonesty while employed as an officer, his removal from the force due to that conviction, and the nature of a police officer’s duties all provide sufficient reasons to prevent his re-employment as a police officer, and the board properly removed him from the eligibility list. PUBLIC EMPLOYEES — TEACHERS 33-2-5625 Barbara K. Lacy, et al. v. Bd. of Trustees of the Teachers’ Pension and Annuity Fund, App. Div. (10 pp.) Application of teachers who sought retroactive calculation of prior service credit, according to new actuarial tables adopted after the teacher’s prior service credit already had been purchased, was properly denied since, according to the plain language of the new legislation containing the tables, the tables were “effective immediately,” not retroactively. TAXATION 35-2-5626 T.J. Maglione Builder Developer v. Wayne Twp., App. Div. (3 pp.) Dismissal of plaintiff’s tax appeal was proper since plaintiff failed to overcome the presumption of correctness of the tax assessment of his commercial building containing a restaurant, since he presented only the testimony of his lessee and appraiser, no comparable restaurant leases were offered, and no study was made of the relevant market. 35-2-5627 Paul and Phyllis DeJesse v. Borough of Freehold, App. Div. (5 pp.) Where municipal attorney had repeatedly informed the trial court that he was not ready to move a case because of the borough tax assessor’s unexpected resignation, the trial court abused its discretion when it imposed a sanction as a condition for granting an adjournment and then suppressed the municipality’s defenses for its failure to pay the sanction within two weeks, and the matter is remanded for a full trial. CRIMINAL LAW AND PROCEDURE 14-2-5628 State v. Kevin Davis, App. Div. (8 pp.) In order to sustain a waiver of defendant’s right to be present at trial, it must be shown that the trial date was actually communicated to the defendant and then he unjustifiably failed to appear, and, since the record does not contain sufficient information for an informed judgment on actual notice, this matter must be remanded for such an inquiry. [Approved for Publication May 12, 1995.] 14-2-5629 State v. Gustavo R. Soto, App. Div. (8 pp.) The prosecutor’s statements, equating police officers’ swearing to tell the truth with the jurors taking their oaths constituted vouching for the officers’ credibility and unduly suggesting that the jurors would not be performing their duty on their oaths if they were to disbelieve the officers, and reversal of the conviction is warranted. 14-2-5630 State v. Isaac Wright, Jr., App. Div. (59 pp.) Defendant’s conviction of leading a narcotics trafficking network must be reversed since the court committed a plain error by failing to incorporate in its charge legislative policy and purpose statements particularized in N.J.S.A. 2C:35-1.1, which the Supreme Court deemed a “material element of the crime.”

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