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Vol. 3 No. 126 — July 7, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — RACING 01-2-6078 Eric H. Kates v. N.J. Racing Comm., App. Div. (6 pp.) Racing commission’s decision, upholding State Steward’s finding that veterinarian had violated “intent to medicate rule, resulting in a 30-day license suspension, was improper and is reversed, since there was no direct proof of the allegations and even the testimony of the commission’s expert witness tends to disprove the allegations. (Decided July 6, 1995.) 04-2-6079 Carchman, Annich, et al. v. Frank Tumulty, et al., App. Div. (23 pp.) The motion judge erred in striking clients’ affirmative defenses and in entering summary judgment in favor of law firm on its complaint for legal fees, since there were multiple issues concerning the reasonableness of the fees, fraud in the inducement and lack of legal consideration, and, on remand, a venue change is directed due to the possibility of the appearance of partiality. (Decided July 6, 1995.) CONTRACTS — PENSIONS 11-2-6080 Judith Prince v. Alan F. Pertchik, M.D., App. Div. (6 pp.) Trial judge correctly found that former employee’s pension was vested where doctor made a pension plan contribution on behalf of the then-administrative assistant and later doctor and investment company that administered the plan had a dispute over doctor’s investment portfolio, which affected the plan’s funding, since this dispute was between the doctor and the investment firm, and did not affect the ex-employee’s vesting rights. (Decided July 6, 1995.) EDUCATION — BUDGETS — FUNDING 16-2-6081 Bd. of Education of the Borough of South River v. Mayor and Council of the Borough of South River, App. Div. (5 pp.) In the absence of legislation or regulation addressing the issue of how a borough or its school board were to fund restored monies that were excised from budget when voted down by electorate but “restored” by state education commissioner, the trial judge correctly applied the statewide practice, and the board’s concern that it does not have the authority to borrow funds without voter approval is misplaced, since it was not the Legislature’s intention that the board seek electorate approval to fund restoration of monies to the budget that it already had rejected. [Decided and Approved for publication July 6, 1995.] ENVIRONMENT — WASTE HAULERS 17-2-6060 Union County Utils. Auth. v. Jersey Carting Inc., et al., App. Div. (13 pp.) Since the Department of Environmental Protection and Energy instructed the waste hauler industry in its Pereira memo” that solid waste could be transported out of a district so long as the post-recycling residue was directed as the district plan required, and waste haulers can therefore defeat penalty claims by showing that they relied on this memo, judgment against plaintiff hauler for statutory civil penalties and counsel fees for allegedly wrongful disposal is reversed and remanded for a hearing to determine whether hauler can prevail on its Pereira” defense. (Decided July 5, 1995.) EVIDENCE 19-2-6082 Ismael Chaparro v. Jack R. Taylor, et al., App. Div. (5 pp.) In a personal injury action, where plaintiff was cross-examined by defense counsel regarding the alleged reasons for his employment termination as an attempt to undermine his credibility, any probative value that the evidence, dealing with alleged sexual harassment, may have had regarding plaintiff’s credibility was overwhelmed by the introduction of such an inflammatory subject, with its capacity for prejudice, and a no cause verdict is reversed and remanded for a new trial on all issues. (Decided July 6, 1995.) FAMILY LAW 20-4-6083 Janet Ryan v. Thomas Ryan, Chancery Div. (5 pp.) Although generally, monies received from personal injury litigation, which compensate an individual’s pain and suffering, are not distributable, here, since settlement monies due to the husband in this case initially were turned over without qualification to the wife and some of the funds were withdrawn later to purchase an investment property in their joint names, with the balance of the funds being placed in a joint savings account and commingled with other joint funds, the investment property became a joint marital asset and is subject to equitable distribution. [Decided Oct. 29, 1993, and approved for publication June 30, 1995.] 20-2-6084 Ralph Hibbitts v. Barbara Hibbitts, App. Div. (3 pp.) Trial judge erred in denying wife’s application for increased alimony based on change of circumstances where judge found that wife suffered a monthly $500 shortfall, and there was no support for his conclusions that her standard of living exceeding that enjoyed during the marriage and that she had made no bona fide attempt to secure income for herself; the order is reversed and remanded for entry of an order increasing her alimony by $500 per month. (Decided July 6, 1995.) INSURANCE — JURISDICTION 23-2-6085 Unisys Corp. v. Liberty Mut. Ins. Co., et al., App. Div. (8 pp.) Insurers’ motions to dismiss plaintiff’s coverage action, based on claims for environmental remediation costs involving sites in various states, on forum non conveniens grounds were properly denied since there is no dispute that New Jersey has jurisdiction to hear the case and insurers have failed to show real hardship or a compelling reason why New Jersey is an inappropriate forum. (Decided July 6, 1995.) LABOR AND EMPLOYMENT 25-2-6086 Donald Brown, et al. v. Port Authority Police Superior Officers Ass’n, et al., App. Div. (18 pp.) The trial court erred in (1) holding that former employees’ claims against Port Authority for breache of collective bargaining agreement were governed by federal labor law, and (2) in ordering that parties must submit to arbitration, and, since employees failed to comply with state statute governing suits for money damages against the Port Authority, their suit must be dismissed. [Decided and approved for publication July 7, 1995.] LAND USE 26-2-6087 Edward J. Dolan, et al. v. City of Linwood, et al., App. Div. (11 pp.) Judge properly dismissed neighbor’s complaint in lieu of prerogative writ, seeking to enjoin neighboring landowners from reconstructing an existing nonconforming structure, since (1) the changes to the structure were so insignificant, that they were not really expansions and did not require a variance, and (2) the state statute that allows repair of a partially-destroyed nonconforming structure invalidates the municipal ordinance, which does not allow repair of more than 30 percent of floor area. (Decided July 6, 1995.) NEGLIGENCE — POLICE — IMMUNITY 31-1-6088 Robin Fielder v. Noelle E. Stonack, et al., Supreme Ct. (58 pp.) Absent willful misconduct, N.J.S.A. 59:5-2(b) provides absolute immunity to a police officer whose negligence in pursuing a fleeing automobile causes injury to a third party, but because genuine issues of material fact exist as to whether the officer’s conduct in the pursuit in this case constituted willful misconduct, summary judgment is inappropriate. (Decided July 6, 1995.) PHYSICIANS — RECORDS 29-2-6089 Hadley H. Phillips, D.O. v. N.J. State Bd. of Medical Examiners, App. Div. (6 pp.) Judge properly dismissed doctor’s objection to an order permitting examination of 525 of his patients’ records, since the Board of Medical Examiners had ample evidence before it to justify its suspicion that doctor was performing unnecessary cataract surgery, and although no charges have been filed against the doctor, the board is authorized by statute to impound and examine the doctor’s records in its investigative role. (Decided July 7, 1995.) PUBLIC EMPLOYEES 33-2-6090 In the Matter of Chief Clerk, et al., App. Div. (9 pp.) Merit System Board of the state Department of Personnel correctly certified Camden County special reemployment lists to the prosecutor’s office for the titles of chief clerk, principal clerk typist, and clerk, over the prosecutor’s objections, since the persons holding those jobs are provisional appointees and do not enjoy the job protection accorded to permanent employees, and eligible persons on a county-wide special reemployment list are entitled by law to fill the positions at issue and to displace the provisional appointees. [Decided and Approved for publication July 6, 1995.] PUBLIC RECORDS 52-2-6091 Bldg. Insp. Underwriters, Inc. v. State, Dept. of Law and Pub. Safety, Div. of Criminal Justice, Official Corruption Unit, App. Div. (15 pp.) Where plaintiff, a private inspection and plan review agency hired by municipalities to perform inspections under the Uniform Construction Code Act, was investigated by the state Department of Community Affairs as a result of allegations that plaintiff offered bribes to municipal officials, and where case was closed due to insufficient evidence, and plaintiff sought access to the investigatory file in order to pursue a defamation suit against its accusers, action to compel file’s release was properly denied since the plaintiff had not established an extraordinary and compelling need that would outweigh the possible harm to the state, and the file was protected by the official information privilege. (Decided July 6, 1995.) REAL ESTATE — BROKERS’ COMMISSIONS 34-2-6092 H.M. Carbone & Co. v. F. Donald Luisi t/a I.C.I., App. Div. (8 pp.) There is ample credible evidence in the record to support trial judge’s findings and conclusions that plaintiff was a licensed real estate broker entitled to a commission for procuring commercial tenant for defendant based on an oral agreement, but that the commission only applied to rentals and did not extend to the eventual sale to the tenant. (Decided July 7, 1995.) REAL ESTATE — TAX SEARCHES 34-2-6093 Betty Simon, Trustee, et al. v. National Community Bank of N.J. v. Twp. of Egg Harbor, et al., App. Div. (16 pp.) In a case where title insurer relied on erroneous oral tax search in issuing its title insurance policy in connection with a second mortgage loan on commercial property, the motion judge correctly granted summary judgment to the municipality in title insurer’s suit for negligent dissemination of tax information, because insurer failed to follow the statutory scheme in the Tax Sale Law, which enables interested parties to make written requests for searches; in addition, under the Tort Claims Act, the muncipality is not liable for the innocent oral misrepresentations of its employee regarding properties’ tax and lien status. [Decided and approved for publication July 6, 1995.] CRIMINAL LAW AND PROCEDURE 14-4-6094 State v. Willis Warrick, Chancery Div. (13 pp.) (1) The allegations of a domestic violence complaint, which was voluntarily dismissed before a hearing took place and which preceded the dismissal of a forfeiture action filed earlier, may be relevant to and is admissible in the current, second forfeiture action, but the dismissal goes to the weight of such evidence; and, (2) since a finding of any one of the events contained in the fourth paragraph of N.J.S.A. 2C:25-21d(3) compels weapons seized pursuant to the Prevention of Domestic Violence Act to be returned, notwithstanding the existence of any of the disabling grounds contained in the statute’s first paragraph, the weapons are ordered returned to the defendant. [Decided March 17, 1995 and approved for publication July 5, 1995.] EDITOR’S NOTE: Case No. 38-2-6043, In the Matter of the Declaration of Death of Dominick Santos, Jr., was summarized in the Alert dated June 30, 1995, in the category of “Wills, Estates and Trusts. The Appellate Division opinion of four pages has now been supplemented by the court with the Chancery Division opinion of six pages. Anyone who previously ordered the Appellate Opinion may wish to order the supplemental six-page Chancery Opinion, which will bear the same DDS number. Any new orders for the case will include all 10 pages. A

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