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Vol. 3 No. 66 DECISIONS RELEASED APRIL 7, 1995 CIVIL PROCEDURE 07-2-5344 Roma Food Enterprises, Inc. v. Carmelo’s Pizzeria, et al., App. Div. (4 pp.) Where the primary fault in failing to answer the complaint lay with plaintiff’s former attorney, who became ill and was forced to close his office, and plaintiff, who has a meritorious defense, moved promptly to set aside the default judgment once he was able to get his file back, the plaintiff demonstrated excusable neglect and the default judgment should be set aside. FAMILY LAW 20-2-5345 Maridel Reese v. Jon E. Reese, App. Div. (5 pp.) Where marital assets (in this case, stock proceeds) had specifically been set aside for the children’s education at the time of divorce, any motion to change this disposition should be viewed as an application to modify equitable distribution rather than as a motion for modification of child support, and the party seeking relief must show not simply changed circumstances but one of grounds for relief from a judgment; therefore, wife’s motion to be relieved of her obligation to pay one-half of college expenses, based on a change of circumstances, was properly denied. 20-2-5346 Thomas J. Emery v. Danielle Emery, App. Div. (4 pp.) A counsel fees award in matrimonial actions is based on the exercise of the judge’s sound discretion, and the fact that there may have been a reduction in fees to be paid by the wife through a fee arbitration does not require the court to re-evaluate the husband’s obligation, and his appeal seeking such relief is denied. 20-2-5347 Jack Namm v. Jill Namm, App. Div. (11 pp.) Restraining order was entered improperly against ex-girlfriend since ex-boyfriend failed to demonstrate that she had acted with an intent to harass (rather than to attempt reconciliation or to get him to pay his share of the rent), within the meaning of the domestic violence statute. LABOR AND EMPLOYMENT 25-2-5348 Gerard Breton, M.D. v. Shore Pathology, P.A., et al., App. Div. (3 pp.) There was adequate credible evidence for the trial court’s determination that the plaintiff, a pathologist, was an at-will employee of the defendant and to sustain the award of damages for the reasonable value of his services performed during his employment. LAND USE — CONDEMNATION 26-2-5349 Jersey City Redevelopment Agency v. The Mack Properties Co. #3, et al., App. Div. (17 pp.) On landowners’ appeal from a determination of value of their condemned land, since the trial judge failed to make the required findings as to whether a hypothetical buyer of defendant’s property would deem it probable that the property could be developed for a use other than warehousing based on existing zoning, or whether a zoning or use variance would be granted in the near future allowing more intense uses, remand is required. [Available online in N.J. Full-Text Decisions.] NEGLIGENCE 31-2-5350 Kiel Steven Kerekes, et al. v. Geriatric & Medical Centers, Inc., App. Div. (3 pp.) Denial of defendant’s motion to exclude testimony of plaintiff’s orthopedist regarding permanency was proper since, although physical therapy records might have been produced at the “zero hour,” defendant was not surprised and the trial court offered the defendant an opportunity to pursue such additional discovery as it required, which the defense refused. 31-2-5351 Meredith Barrett v. Harry Eisenstein, et al., App. Div. (7 pp.) Denial of defendant’s request for judgment n.o.v. in plaintiff’s damages trial was appropriate since plaintiff s credibility and that of the medical experts was clearly at issue with respect to permanency, and the appellate court will not substitute its judgment for the jury’s or the trial judge’s view of the evidence. 31-2-5352 Mark Hoskins v. Turning Point, Inc., et al., App. Div. (4 pp.) Since the plaintiff, a patient at defendant’s facility, failed to show that the employees of the immune charitable entity acted in any way separate from their conduct in pursuit of their employer’s policies and procedures, his claim against the employees for injuries he suffered when a fight erupted between two other patients was properly dismissed on the basis that the immunity shielded the employees. TORTS — IMMUNITIES — POLICE OFFICERS 36-2-5353 David M. Frisoli v. Scott C. Williams, et al., App. Div. (7 pp.) Summary judgment dismissing plantiff’s complaint to recover compensatory and punitive damages against police officers who seized unlicensed firearms from his home while investigating a domestic violence complaint was proper since the officers, who were acting under a directive from the county prosecutor, were immune from suit under the Tort Claims Act. TORTS — IMMUNITIES — CHILD ABUSE 36-2-5354 F.A., et al. v. W.J.F., Jr., et al., App. Div. (15 pp.) The statutory immunity afforded to persons who report suspected child abuse shall be broadly and liberally construed in favor of the reporting person, and, using the reasonableness standard articulated in this opinion, the defendants had sufficient cause to believe that child abuse had taken place; plaintiffs’ claims for intentional infliction of emotional distress, libel, slander and abuse of process were properly dismissed. [Available online in N.J. Full-Text Decisions.] TORTS — DEFAMATION 36-2-5355 Dominick J. Gallo v. Princeton University, et al., App. Div. (20 pp.) Since the allegedly defamatory statements made by university personnel about ex-employee fell within the protective umbrella of a qualified privilege, the ex-employee’s case was properly dismissed because he failed to establish that the university personnel knew the statements to be false or acted in reckless disregard of its truth or falsity. [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-5356 State v. Roosevelt Grey, App. Div. (14 pp.) Since consistency in verdicts is not required, the jury could have found defendant not guilty of the predicate crime of aggravated arson and still find him guilty of felony murder beyond a reasonable doubt. [Available online in N.J. Full-Text Decisions.] 14-2-5357 State v. Robert K. Moses, App. Div. (13 pp.) The judge’s failure to charge the jury sua sponte on accomplice liability in relation to murder or aggravated assault charges was not plain error because there was no evidence for a reasonable jury to find that someone else shot the gun and as a result the defendant had some lesser intent when the shots were fired. -

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