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Vol. 3 No. 71 DECISIONS RELEASED APRIL 17, 1995 AGENCY AND PARTNERSHIP — PARTITION 02-2-5415 David Ringel v. Jacob Burstyn, et al., App. Div. (13 pp.) (1) Since partner failed to articulate how two matters involved common questions of law or fact other than the fact that each was a partition action, there was no abuse of discretion in the judge s denial of partner s consolidation motion. (2) Although the law favors partition in kind, it is not a matter of right, and, since there was evidence that the assets were not suitable for partition in kind and a sale would have been disadvantageous to other partner, trial court s allocation of money was not an abuse of discretion. ARBITRATION AND MEDIATION 03-2-5416 City of East Orange, et al. v. Cris-Tec Assoc., Inc., App. Div. (7 pp.) Since municipalities and environmental contractor, by their contract, set up a procedure giving arbitrators exclusive jurisdiction over disputes in the course of the arbitration (in effect, an arbitration within an arbitration), the Appellate Division will not rewrite the agreement or second-guess the results of the arbitration on that issue. CIVIL PROCEDURE — LIMITATIONS 07-2-5417 Michael T. Chiappetta v. Lawrence J. Perry, App. Div. (6 pp.) The trial court erred in applying the two-year personal injury statute of limitations to plaintiff s claim for economic loss as a result of defendant s allegedly tortious conduct, and dismissing the claim with prejudice, and the court should either have struck the personal injury claims and permitted the plaintiff to continue on the economic loss claim, which was timely, or dismissed the complaint without prejudice and directed plaintiff to file an amended, more restricted, complaint. FAMILY LAW 20-2-5418 S.M. v. A.W., App. Div. (11 pp.) The trial court did not follow the appropriate best interest of the child standard where the maternal grandmother sought to gain custody of her grandchild in order to reunite the child with her natural siblings, who already lived with the grandmother, and an order allowing child to remain in foster home is reversed. 20-2-5419 Marilyn Termotto v. S. Joseph Termotto, App. Div. (9 pp.) Trial court did not abuse its discretion in denying ex-husband s motion to reduce alimony and child support where judge felt defendant s claim of changed circumstances was belied by what he should be making (imputing his age, background and profession as an architect) and finding that the downward trend in his income was just a temporary fluctuation. 20-2-5420 Mohamad Yasser Mortada v. Rima Rida Mortada, App. Div. (3 pp.) Where mother of wife in a divorce action sought to intervene because she alleged that she had loaned the couple $75,000, secured by an unrecorded mortgage on the marital premises, and was afraid the asset would be sold and the proceeds dissipated, the motion judge was correct in denying such intervention, since mother s rights would not be impaired or affected post-dissolution if she were to bring a collection action. 20-2-5421 Charles J. Totoro v. Mildred A. Totoro, App. Div. (6 pp.) Where ex-wife sought to reopen divorce judgment and property settlement agreement four years after execution on the ground that the agreement was unconscionable and the product of fraud and psychological duress, the motion judge correctly denied the application since charges of fraud were brought too late and were not specific enough to make out a prima facie case. INSURANCE 23-2-5422 Gold Star Express, Inc. v. Those Certain Underwriters, Insurers and Persons at Lloyds at London, England, et al., App. Div. (12 pp.) The trial court erred when it found that insurance broker had no duty, as successor broker, to discover the mistakes in trucking company s insurance proposal (which then denied trucking company a chance to correct the problems before its first loss occurred), since expert testimony was offered on the issue of the standard of care owed and sufficient questions were raised to preclude summary judgment, and matter is remanded. LABOR AND EMPLOYMENT 25-2-5423 Ronald Orlowski v. Bd. of Review, App. Div. (3 pp.) Since employee did not fit within the definition of those persons for whom a waiver of repayment may be authorized without even addressing the issue of fault or misrepresentation, the board could have reasonably found on the evidence presented that employee was required to refund benefits where his part-time earnings were not properly included in the calculation, resulting in overpayment. LAND USE 26-2-5424 The Salt and Light Co. v. Twp of Willingboro, et al., App. Div. (4 pp.) Since the trial judge found that the township s amended definition of family in its zoning ordinance was valid, his interpretation that plaintiff s three transitional homes for the homeless violated the municipal ordinance for single-family dwellings is upheld. 26-2-5425 Woodbridge Twp. v. James Matt (Ben s Den II), App. Div. (6 pp.) Since there was an absence of proof that tavern had enlarged the business premises previously occupied by another similar business, the conviction entered against the successor business for violating an ordinance requiring a certain number of parking spaces per 100 square feet must be reversed, since the ordinance speaks of buildings and structures hereafter erected or enlarged. NEGLIGENCE 31-2-5426 Kenneth J. Gyorfi v. Merv Griffin, et al., App. Div. (5 pp.) Where plaintiff volunteered to participate in a dance routine on stage and subsequently injured his knee and sued the showplace, summary judgment in favor of defendant was proper since plaintiff failed to establish any duty of care owed to him. PUBLIC EMPLOYEES — POLICE 33-2-5427 Jacob Karl v. Police Dept. of the City of New Brunswick, App. Div. (4 pp.) Although city had shown that police lieutenant was home during work hours on a large number of occasions, the administrative law judge s determination that the city had not shown that this activity was either neglectful or insubordinate or in any way inconsistent with his duties at the time was reasonably supportable by the evidence, and will not be disturbed. TORTS 36-2-5428 Stephen Kubanovich, et al. v. Mullica Twp. Bd. of Education, et al., App. Div. (8 pp.) Where child was injured in school playground during a supervised recreation period, but failed to show anything more than speculation as to whether the equipment was faulty or whether the playground was negligently supervised, the plaintiff failed to meet his heightened burden under the Tort Claims Act and summary judgment was properly granted to board. -

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