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Vol. 3 No. 202 Decisions Released Oct. 25, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — POLICE OFFICERS 01-1-6829 In the Matter of the Disciplinary Hearing of Curtis Bynes, etc., Supreme Ct. (6 pp.) There was substantial credible evidence on the record to support insubordination charge against police officer as well as trial court’s reduction of the penalty imposed. GOVERNMENT — BRIDGES AND ROADWAYS 21-2-6830 Twp. of Middletown, et al. v. Highway Authority of the State of N.J., et al., App. Div. (10 pp.) County approval is not a prerequisite to the Highway Authority’s decision to repair and expand a bridge, since the repair of the bridge and that portion of the roadway which serves as the bed of the bridge are within the Authority’s exclusive statutory domain. INSURANCE — VERBAL THRESHOLD 23-2-6831 Anthony Biago v. Jose Pontoriero, et al., App. Div. (5 pp.) Although plaintiff’s counsel submitted a doctor’s report on the eve of defendant’s summary judgment motion clearly for the purpose of defeating it, those questionable tactics should not be visited on the plaintiff, and since the report satisfied the verbal threshold requirements as to objective evidence of injury, the complaint should not have been dismissed on summary judgment. LANDLORD/TENANT 27-2-6832 Riverview Realty, Inc. v. Margaret Williamson, App. Div. (5 pp.) Since a landlord may limit a tenancy to the life of a tenant without violating the anti-eviction laws, trial judge properly granted judgment of possession to landlord where tenant refused to sign a lease with such a clause. [Approved for publication Oct. 25, 1995. Available Online in NJ Full-Text Decisions] LAND USE 26-2-6833 Edmund J.O. Taggart v. Bd. of Adjustment of Spring Lake Borough, App. Div. (3 pp.) Use variance was properly denied to landowner who wished to convert a closed, non-conforming luncheonette into two non-conforming apartments, since contention that the proposed use would bring the property closer to the present single family zoning scheme is without merit. NEGLIGENCE — MUNICIPALITIES — SANCTIONS 31-2-6834 Rudolph Gutwein-Guenther, et al. v. Borough of Oaklyn, et al. v. BCM Engrg., et al., App. Div. (15 pp.) Where builders of condominium complex sued municipality and others for failure to advise them earlier of the need for permits from state Department of Environmental Protection, and did not notify defendants that they would be using a damages expert until 20 days before trial, at which time they also substantially increased their damages demand, sanctions imposed by trial judge are reversed in part and affirmed in part based on analysis of relative prejudice to the defendants. NEGLIGENCE — SOCIAL GUESTS 31-2-6835 Anthony Ray v. Edward Lahming, et al., App. Div. (5 pp.) Where social guest playing basketball on defendant’s driveway fell and injured his knee, complaint for injuries was properly dismissed, since he was aware of the condition of the driveway and was bound to make a reasonable use of his own faculties to take care of himself. REAL ESTATE — NEW HOME WARRANTIES 34-2-6836 Richard A. Fanucci, Sr., et al. v. J. Morie Bldg. Contractors, Inc., App. Div. (4 pp.) Arbitrator’s rejection of homeowners’ claim for defects in a driveway — which was not covered under warranty — did not bar homeowners from suing in the Law Division for that defect; however, since the claim for potable water was covered under the warranty, the arbitration of that claim does bar any further suit, and summary judgment on that count was proper. Editor’s Note: In yesterday’s Alert, Robin Brill v. The Guardian Life Ins. Co. of America, et al., DDS No. 23-1-6812, appeared under the topical heading “INSURANCE.” However, practitioners should also note a procedural aspect to this decision, wherein the Supreme Court indicated an intention to prospectively incorporate the federal summary judgment standard. Under R. 4:46-2, when deciding a motion for summary judgment, trial courts are required to engage in the same type of evaluation, analysis or sifting of evidential materials as required by R. 4:37-2(b), as for a directed verdict. FEDERAL COURT CASES ARBITRATION — LABOR AND EMPLOYMENT 03-7-6837 Elaine Subbe-Hirt v. Prudential Ins. Co., et al., U.S. Dist. Ct. (10 pp.) Where plaintiff seeks to vacate the arbitrators’ dismissal of her sexual discrimination charge, alleging that certain submissions defendant offered to the arbitrator were unduly prejudicial, but offers nothing to suggest that the submissions influenced the arbitrators’ determination in any way, the arbitrators’ decision is confirmed. ATTORNEYS — APPOINTMENT OF COUNSEL 04-7-6838 John J. Pastore, pro se v. William J. Perry, etc., et al., U.S. Dist. Ct. (3 pp.) Although plaintiff has been unemployed and seeks appointment of counsel to proceed in forma pauperis, he has presented the facts in a clear, understandable manner in his complaint, and since the legal issues involved are not complex, he should have no difficulty pursuing a factual investigation and representing himself. 04-7-6839 George Lahood, pro se v. State of N.J. Election Law Enforcement Cmmn., et al., U.S. Dist. Ct. (3 pp.) Plaintiff, an unsuccessful candidate for governor who contends that defendants violated various election laws, is denied application for appointment of counsel, since he has presented the facts in a clear, understandable manner in his complaint, the legal issues involved are not complex, and thus he should have no difficulty pursuing a factual investigation and representing himself CONSTRUCTION — CONTRACTS 43-7-6840 V.A.L. Floors, Inc. v. Crossland Svgs. Bank, F.S.B., U.S. Dist. Ct. (9 pp.) Where subcontractor waited 33 months before suing bank for payment under construction contract, complaint is time-barred by the contract’s terms and subcontractor’s claim that oral representations created a new contract are without merit. CORRECTIONS — CONSTITUTIONAL LAW 13-7-6841 Richard Young v. Patrick Arvonio, et al., U.S. Dist. Ct. (30 pp.) Since inmate has not opposed prison officials’ motion for summary judgment and has failed to demonstrate a genuine issue of material fact on whether officials violated his rights to equal protection and due process regarding a disciplinary charge and subsequent hearing (resulting from a dispute involving a change in his housing status), dismissal on summary judgment is granted. ENVIRONMENT — CERCLA 17-8-6842 U.S.A. v. Hughes, Hubbard & Reed v. USX Corp., et al. v. Chubb Group of Ins. Companies, et al., Third Cir. (42 pp.) Since the record did establish defendant ADS’s liability under CERCLA as a transporter of hazardous waste, the declaratory judgment against ADS is affirmed; however, since there are genuine issues of material fact as to the knowledge and participation of the principal shareholders of ADS in the dumping at the subject site and as to the intent of the parties to establish a joint venture relationship with realty company, the declaratory judgments as to the shareholders and realty company are vacated. TAXATION 35-8-6843 Alan K. Lauckner v. U.S.A. v. John Hug, et al., Third Cir. (3 pp.) Because the Internal Revenue Service’s penalty assessment against taxpayer under Internal Revenue Code sec. 6672 was made more than three years after the relevant returns were deemed to have been filed, the District Court correctly held that the assessment was time-barred under Code sec. 6501(a).

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