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Vol. 3 No. 138 – JULY 25, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — DAY CARE LICENSING 01-2-6235 Nancy Simmerman, et al. v. Dept. of Human Services, etc., App. Div. (23 pp.) The Appellate Division will not review the agency’s intramural decision that appellants are not fit to operate a day-care center, since appellants’ due process rights are amply protected by the available and conventional administrative hearing route, where a contested hearing is held before an administrative law judge, followed by the agency’s final decision review, and then appellate review on an established record. CONSTITUTIONAL LAW 10-1-6236 John Doe, etc. v. Deborah Poritz, Atty. Gen’l, etc., Supreme Ct. (223 pp.) The registration and community notification portions of “Megan’s Law do not violate the ex post facto, double jeopardy, cruel and unusual punishment or bill of attainder clauses of the state or federal constitutions, and do not deprive sex offenders of the right to equal protection under the laws or to their constitutional right to privacy, and the guidelines for judicial review are valid, subject to limited modifications, including due process safeguards. CONTRACTS — DAMAGES 11-2-6237 DAS Supply Co., Inc. v. Schindler Elevator Corp., et al., App. Div. (14 pp.) Where judgment in contract matter was entered in favor of plaintiff, which maintained an inventory of elevator parts designed for use by defendant elevator company, on retrial for damages, there was ample evidence to support the jury’s finding that plaintiff and defendant had a contract, and the inventory verdict was consistent with such evidence; but that part of the jury verdict awarding warehousing damages is reversed because of insufficient evidence. ENVIRONMENT — SPILL ACT 17-2-6238 Shell Oil Co. v. Manchester Machinery Salvage Co., et al., App. Div. (16 pp.) Where the question of defendants’ responsibility for site contamination was determined in an administrative hearing under the Water Pollution Control Act, and not the Spill Act, the issues litigated were not identical, and where oil company was not a party or in privity with a party in the agency proceeding, the motion judge incorrectly applied the doctrine of collateral estoppel in barring oil company’s suit. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-6239 Jacqueline Grover, et al. v. N.J. Mfrs. Ins. Co., App. Div. (4 pp.) Trial judge erred in granting judgment to three sibling infant plaintiffs for $25,000, which represented their parents’ policy’s single UIM limit of $35,000 less $10,000 which each of them had received from tortfeasor’s policy, since the three plaintiffs were claiming under one UIM policy, the $35,000 limit must be reduced by the fully exhausted amount of liability coverage available to the tortfeasor–$30,000– leaving only $5,000 available. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-6240 Patrick McLaughlin v. Liberty Mut. Ins. Co., et al., App. Div. (6 pp.) Summary judgment was correctly entered in favor of insurer, holding that plaintiff was not covered under the uninsured motorist coverage of his corporate employer’s automobile policy, since the insured employer had no reasonable expectation that its UM policy would cover its employees operating their own vehicles in the course of company business, and, even if the statute required such coverage, the statute’s anti-stacking provision would deny him any benefit in view of the UM coverage he had in his policy. JURISDICTION 24-2-6241 Harry J. Schaffer v. Rose Marie Birnie, App. Div. (4 pp.) Where defendant, a Pennsylvania resident, entered into a contract over the telephone with a New Jersey carpet cleaner, and where carpet cleaner traveled to Pennsylvania and was bitten by defendant’s dog while at the defendant’s home, the court properly dismissed carpet cleaner’s New Jersey negligence case for lack of in personam jurisdiction, since New Jersey’s only contact with the incident was the contract for the cleaning services. LABOR AND EMPLOYMENT 25-2-6242 Wayne Bradshaw, et al. v. Twp. of Middletown, et al., App. Div. (4 pp.) Patrolman and PBA’s complaint against municipality, alleging retaliatory demotion, was properly dismissed, since patrolman’s assignment to detective division was temporary, and not a promotion, and he had no protected liberty or property interest in that position. LAND USE 26-2-6243 Bd. of Chosen Freeholders of Passaic County v. City of Paterson, et al., App. Div. (5 pp.) Trial court properly awarded summary judgment in favor of county, granting it a building permit to erect a salt dome after city denied the permit, because, although the county was not automatically immune from the city’s zoning ordinances, after considering all of the factors, such as the public’s interest in safe roadways, which county is charged with maintaining, and the fact that an open-air salt storage depot had been on the site–located in a mixed-use zone–for more than 25 years, the county was immune from the city’s zoning ordinance in this particular situation. REAL ESTATE — CONDOMINIUMS — NEGLIGENCE 34-2-6244 550 First Street Condo Ass’n v. Walter Carroll v. Michael Sciarra, et al., App. Div. (10 pp.) In case where condominium owner’s contract–stating that he would not have to pay maintenance fees–was inconsistent with condominium’s master deed and bylaws, judgment was properly entered in favor of condominium association on its suit to collect such fees, since owner’s acceptance of deed extinguished all prior inconsistent covenants related to the property and such a clause would be in violation of the state Condominium Act; nevertheless, owner’s countersuit for negligence–as a result of a burst pipe and flood in his unit–should not have been dismissed, since he satisfied the res ipsa loquitur elements of that claim. REAL ESTATE — BROKERS — MORTGAGES 34-2-6245 Mortgage Bankers Ass’n of N.J. v. N.J. Real Estate Comm’n, et al., App. Div. (12 pp.) N.J.S.A. 45:15-17(i), which prohibits a real estate broker from “collecting a commission as a broker in a transaction, when at the same time representing either party in a transaction in a different capacity for a consideration,” does not bar a real estate broker from collecting a commission from a seller, even if the buyer or lender paid the broker a fee for providing the mortgage that the buyer needed to complete the purchase, since the two transactions are different. [Approved for publication July 25, 1995.] A

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