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Vol. 3 No. 67 DECISIONS RELEASED APRIL 10, 1995 ADMINISTRATIVE LAW AND PROCEDURE — DISABILITIES 01-1-5358 P.F. and B.F. v. N.J. Div. of Developmental Disabilities, Supreme Ct. (15 pp.) The Division of Developmental Disabilities did not sustain its burden of proving that the proposed transfer of an autistic 21-year- old man from an out-of-state institution to a New Jersey institution is appropriate, and the director’s decision to transfer him is reversed. [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE 07-1-5359 Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., Supreme Ct. (32 pp.) There was adequate, substantial and credible evidence in the record to sustain the trial court’s factual findings of discovery misconduct consisting of the willful concealment of relevant documents, therefore, the trial court properly exercised its discretion in dismissing plaintiff’s complaint. [Available online in N.J. Full-Text Decisions.] CONTRACTS — PAROL EVIDENCE 11-2-5360 AFA Protective Systems, Inc. v. McManus Steel Deck, App. Div. (8 pp.) The trial judge erred in applying the parol evidence rule to allow introduction of oral promises, which supposedly induced defendant into making the contract with the plaintiff, even though the promises may have been misrepresentations and fraudulent, since the contract itself was clear and unambiguous, and defendant’s failure to read it does not excuse its enforceablility. CORRECTIONS 13-2-5361 Timothy Johenkins v. N.J. Dept. of Corrections, App. Div. (7 pp.) The state corrections department erred in upholding the imposition of inmate’s prison administrative punishment since it based its decision on the report of a hearing officer who failed to make the requisite fact findings to support his conclusion that the inmate attempted, planned or aided in the killing of another inmate. ENVIRONMENT 17-2-5362 Union County Utilities Authority v. Thomas Decuollo, App. Div. (13 pp.) Ample evidence existed for the trial judge to determine that defendant had committed specified violations of solid waste management regulations and that plaintiff failed to prove other specified violations; the judgment, however, is vacated insofar as it determined penalties and other sanctions, and is remanded for further determination in that regard. EVIDENCE — EXPERT WITNESSES 19-2-5363 Myron P. Shevell, et al. v. Vestal Dev. Co., et al., App. Div. (11 pp.) Based upon the evidence of plaintiff’s expert’s experience, the trial judge abused his discretion in concluding that the expert witness was not qualified, and since this precluded plaintiffs from presenting their case, it was not harmless error and the case is remanded for a new trial. FAMILY LAW 20-2-5364 Janet C. Hahn v. John H. Hahn, App. Div. (11 pp.) In view of the fairly even distribution of marital property, well within the judge’s discretion, it was reasonable for the judge to compensate wife for additional counsel fees incurred as a result of husband’s bad faith efforts to thwart settlement, hide assets and deprive wife of a fair distribution. INSURANCE 23-2-5365 Kathleen Flood v. Allstate Ins. Co., et al., App. Div. (5 pp.) The trial court was incorrect when it awarded summary judgment to insurer, holding that insurer had properly canceled plaintiff’s policy and she was therefore entitled to recover PIP benefits from her son’s policy, since insurer failed to present any postal certification showing that the cancellation notice was forwarded to plaintiff. INSURANCE — VERBAL THRESHOLD 23-2-5366 George Goins, et al. v. Patricia Hawthorne, App. Div. (4 pp.) The Deemer statute does not apply to a nonresident whose motor vehicle was not insured by a company authorized to transact automobile or motor-vehicle insurance in New Jersey, nor controlled by or under common control by or with an insurer authorized to transact such business in this state, and therefore plaintiff is not subject to the verbal threshold and summary judgment should not have been granted to defendants. 23-2-5367 Carolyn Dillard v. Michael Bahatsky, et al., App. Div. (2 pp.) Where there was objective evidence of spasm observed a week after the accident, again 14 months later, and then again three years after the accident, this, when related to plaintiff’s complaints of chronic pain that interferes with her ability to do her work both at home and on the job, and causes difficulty in sexual relations, meets the verbal threshold and summary judgment should not have been granted to defendants. 23-2-5368 George E. Kaufman, et al. v. Maureen M. Komorowski, et al., App. Div. (3 pp.) There was no medical evidence to show that plaintiff s disc herniation (revealed by an MRI two-and-a-half years after the accident when he was hospitalized for another incident) was related to the original automobile accident, and summary judgment was properly granted to the defendants. PHYSICIAN/PATIENT 29-2-5369 Judy Marie Zomberg v. Dr. Robert Hill, et al., App. Div. (6 pp.) Where it was undisputed that the wrong bile duct in the plaintiff was clamped, the judge erred in ruling that the common knowledge doctrine was inapplicable and plaintiff’s medical doctor was not qualified to give an opinion on whether the defendants’ doctors had committed malpractice. PUBLIC EMPLOYEES 33-2-5370 Edward Bullock v. Bd. of Trustees of the Public Employees’ Retirement System, App. Div. (7 pp.) In a case where a former sheriff pleaded guilty to official misconduct, and the board of trustees of the Public Employees’ Retirement System considered forfeiture of his pension benefits, its discretion was not limited to excluding service which occurred after the wrongful conduct, and it had the authority to determine whether either a partial or a total forfeiture was appropriate. REAL ESTATE — LIQUIDATED DAMAGES 34-2-5371 Frances A. Schoor v. Raymond Contreras, App. Div. (7 pp.) Even where there is a specific liquidated damages clause in a real estate contract, the issue is whether the amount retained by the contract vendor is reasonable, and so summary judgment in favor of the seller in the amount of the specified liquidated damages was inappropriate, since discovery had not been had and no determination made regarding the reasonableness of the amount. WORKERS’ COMPENSATION 39-2-5372 Lodean Sheffield v. Schering-Plough Corp., et al., App. Div. (4 pp.) The compensation judge correctly held that, despite the fact that petitioner had sustained orthopedic and neurological disabilities arising out of her employment, her claims for such injuries were time-barred, since she had, or should have had, sufficient awareness that she had a compensable condition six years before she filed her petition. 39-2-5373 Robert Bleyle v. V.R.H. Constr. Co., App. Div. (12 pp.) Because the objective evidence leads inextricably to the conclusion that petitioner’s job conditions were extremely difficult and stressful, the judge of compensation incorrectly determined that petitioner’s pre-existing psychiatric condition made him susceptible to the stress of the job, and his resulting disability was not “a compensable occupational disease.” CRIMINAL LAW AND PROCEDURE 14-2-5374 State v. Beeman Hamilton, App. Div. (19 pp.) Defendant’s lack of voluntary and knowing waiver of his right to counsel requires a reversal of the conviction, where defendant consistently maintained that he was not happy with the attorney assigned to him, but that he did not feel confident to represent himself, and no attempt was made by the trial judge to determine whether the defendant had good cause for substituted counsel. 14-2-5375 State v. Steven P. Geiger, Sr., App. Div. (7 pp.) The trial court properly barred the defendant from presenting the defense of pathological intoxication to the jury, since it is within the trial court’s discretion to limit or reject the defense of pathological intoxication where the condition results in part from the defendant s voluntary ingestion of intoxicants, from which defendantcould reasonably expect an adverse reaction. 14-2-5376 State v. Kizicke J. Murray, App. Div. (7 pp.) The jury’s impartiality may have been compromised by the injection (by one of the jurors) into its deliberations of information not contained in the record, and the trial judge’s failure to make an inquiry into the nature of thecommunicated information constitutes plain error and requires reversal of defendant s conviction. Editor’s Note: Because of the religious holidays, there will be no Alert on Friday, April 14, and no orders will be filled. -

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