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Vol. 3 No. 131 Decisions Released July 14, 1995 ATTORNEYS — MUNICIPAL PROSECUTIONS 04-1-6159 State v. Richard Storm, Supreme Ct. (17 pp.) Although private attorneys are permitted to prosecute private complaints in municipal court, since the defendant has a right to a fair and impartial trial, and since the attorney for the complainant in this case had obligations to the complainant which created, at the least, the appearance of a conflict, the Appellate Division properly held that he could not be permitted to prosecute defendant. [Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-4-6160 Elizabeth Ann Gioioso v. Joseph Gioioso, App. Div. (9 pp.) Where husband and his new wife were found in the bankruptcy court to have transferred or concealed funds with the intent to defraud collection on business notes, the holder of those notes is permitted to intervene in post-judgment matrimonial proceedings between husband and first wife, to ascertain whether first wife’s application for a substantial increase in support was valid or fraudulently related to her ex-husband’s attempts to hinder collection efforts on the notes by funneling his money elsewhere. LAND USE 26-2-6161 Yonkers Contracting Co., Inc. v. Zoning Bd. of Adjustment of the Twp. of Old Bridge, App. Div. (3 pp.) Law Division order reversing a township zoning board decision and granting plaintiff’s application for a preliminary site plan and conditional use variance is reversed, since the application should have been considered under the ordinance in effect at the time of the court’s decision, not at the time of the application, and the matter is remanded for re-consideration under the terms of the correct ordinance. NEGLIGENCE — ASBESTOS 31-2-6162 James Iannaco v. Owens-Corning Fiberglas Corp., et al., App. Div. (14 pp.) Since X-ray reports from as early as 1980 established pulmonary changes in plaintiff consistent with previous asbestos exposure, and plaintiff experienced shortness of breath by 1983, the question of whether he knew or should have known that he suffered from asbestosis at least two years before he filed suit on Oct. 25, 1988 was squarely at issue, and a Lopez hearing should have been held before defendant’s statute of limitations defense was denied by the court. WORKERS’ COMPENSATION 39-2-6163 Patricia B. Kunder v. American Hoechst, App. Div. (6 pp.) Since it is apparent that the Legislature intended that a minor dependent receive the full amount set forth in a dependency schedule, notwithstanding the reduction of a widow’s benefit for her earnings, the compensation judge properly allocated the weekly award to the dependent son. CRIMINAL LAW AND PROCEDURE 14-2-6164 State v. Charles E. Hicks, App. Div. (11 pp.) Since the mandate expressed in State v. Brunson, 132 N.J. 377 (1993), does not prohibit the use of sentencing information for the limited purpose of impeaching credibility, but only prohibits specifying the nature of the offense, and since the sentencing information becomes more critical once the defendant’s record has been sanitized pursuant to Brunson because it represents the most accessible means by which a lay jury can measure the severity of a prior conviction, the trial judge did not err in allowing the defendant’s sentencing information to be presented to the jury, and the court specifically rejects the holding in State v. Williams, 267 N.J. Super. 514 (Law Div. 1993), which reached a contrary result. [Approved for publication July 17, 1995.] [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES ADMINISTRATIVE LAW – PUBLIC CONTRACTS — BIDDING 01-7-6165 SRP Investments v. Port Auth. of N.Y. and N.J., et al., U.S. Dist. Ct. (20 pp.) Where minority-owned joint venture, the unsuccessful bidder for airport parking management contract, moved to declare successful contract void, restrain the successful bidder from performing, and have the contract awarded to itself, Port Authority’s motion to dismiss complaint is granted since, although venture has an “interest” capable of supporting its standing to challenge a contract award under New Jersey law, the interest does not rise to the level of a legitimate claim of entitlement protected by the due process clause, and, further, the bid specifications did not set forth any mandatory requirements that the Port Authority breached. CONDEMNATION — ENDANGERED SPECIES 44-7-6166 U.S.A. v. Two Container Loads…of Food, et al., U.S. Dist. Ct. (19 pp.) Where shipper imported from Bangladesh layers of salmonella-infected frog’s legs, from an endangered species, between layers of legal shrimp, entire cargo is subject to forfeiture under (1) the Endangered Species Act, since the protected species was not accompanied by the required permit or certificate, (2) the Lacey Act, since the cargo was falsely labeled, and (3) the Food, Drug and Cosmetic Act, since the shipments were misbranded and adulterated, and the United States is entitled to costs of storage and destruction of the merchandise. [Filed and approved for publication June 30, 1995.] [Available online in N.J. Full-Text Decisions.] CORRECTIONS — CIVIL RIGHTS 13-7-6167 David Williams v. James Barbo, et al., U.S. Dist. Ct. (15 pp.) Prison administrators’ motion to dismiss prisoner’s complaint for civil rights violations in being taken without a hearing from a transitional living center to an administrative segregation unit at a prison, where he was denied proper medical care, is granted as to the claims against the administrators in their official capacity (since they are not “persons” under Sec. 1983), but denied as to the claims against one of the administrators in his individual capacity, since there is sufficient personal involvement alleged against that individual to support liability. INSURANCE — VACATING DEFAULT 23-7-6168 Sharp Electronics Corp. v. Warwick Ins. Co. in Liquidation, U.S. Dist. Ct. (8 pp.) In an action where plaintiff was attempting to recover from shipper’s insurer the value of videocameras which were destroyed while in transit, and where default judgment was entered against insurer, which was in liquidation at the time and under the state control, insurer’s motion to vacate default is granted, since lifting the default will not prejudice the plaintiff, and the insurer has shown not only meritorious, but possibly complete defenses related to its liquidation. INSURANCE — DISABILITY 23-7-6169 Minn. Mut. Life Ins. Co. v. Marc Picchierri v. O’Brien Fin. Group, et al., U.S. Dist. Ct. (18 pp.) The term of a doctor’s disability policy with insurer requiring that he terminate other disability policies held by him was clear and unambiguous, and was a material and dependent covenant of the policy, and the fact that the agent told doctor he did not have to terminate the other policies is immaterial since agents do not have the authority to change a contract’s material terms; therefore, since the doctor did not terminate his other policies, insurer’s summary judgment motion seeking recission of doctor’s disability policy on the grounds of breach of contract is granted.

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