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Vol. 3 No. 128 Decisions Released July 11, 1995 STATE COURT CASES FAMILY LAW 20-2-6108 Joan-Marie Finucane v. John J. Finucane, II, App. Div. (5 pp.) In resolving equitable distribution for a divorce judgment, (1) the trial judge correctly made a 20 percent deviation in the marital-residence distribution, giving the extra to the husband to be used to fund the children’s higher education, but his decision is modified so that the 20 percent is to be placed in an education trust, and (2) the judge’s award of temporary rehabilitative alimony was inappropriate since the wife already has a master’s degree, and further work training and preparation are not necessary; but since she is emotionally and physically disabled, permanent alimony is ordered. 20-3-6109 Dorothy Miko v. Richard Miko, Law Div. (11 pp.) (1) When husband failed to fulfill his child-support obligation, a judgment was entered against him by operation of law to enforce payment, and because a written judgment could have been entered at any time, it is of no consequence that the official entry of the judgment occurred five months after his death, and the judgment is therefore both enforceable and subject to his first wife’s claim; and, (2) survivorship benefits of husband’s pension, although payable to his second wife, are available to satisfy the judgment. [Approved for publication July 6, 1995.] [Available online in N.J. Full-Text Decisions.] INSURANCE — VERBAL THRESHOLD 23-2-6110 Patricia Ginsburg, et al. v. Anna Lemberis, et al., App. Div. (5 pp.) Plaintiff’s case was properly dismissed since she failed to satisfy the objective prong of the test for a Type 9 injury, where her doctor reported that she had a spinal-area spasm on the day of the accident but the doctor found no further evidence during his course of treatment, and where there was only a single reference by her chiropractor to a “mild spasm” in her gluteal area almost two years later, and, in addition, she failed to provide any medical evidence to support her claim that substantially all of her usual homemake activities were curtailed for the requisite time period. LABOR AND EMPLOYMENT 25-1-6111 Dr. William B. Young v. Schering Corp., et al., Supreme Ct. (23 pp.) The scope of the waiver provision of the Conscientious Employee Protection Act (CEPA) does not prevent employee from proceeding with his common law tort and contract claims, such as breach of implied contract, slander, defamation and malicious interference with employment contract, since those claims are sufficiently distinct and raise collateral issues which do not require the same proofs as the CEPA claim. [Available online in N.J. Full-Text Decisions.] 25-2-6112 Michael A. Lamonica v. Bd. of Review, et al., App. Div. (3 pp.) Board of Review’s determination that employee was not qualified to receive benefits and must refund those received is affirmed, since he had not worked the requisite number of base weeks to qualify, despite his belief that he was qualified to receive benefits for time spent as a full-time student receiving “on the job training.” LAND USE 26-2-6113 Judith Brahin, individually and as executrix v. City of Somers Point, et al., App. Div. (7 pp.) Judgment invalidating municipality’s ordinance requiring a certain distance between fast-food restaurants is reversed, since whether there is a rational basis for distinguishing fast-food restaurants from other permitted uses in the zone is a debatable question, and plaintiff did not carry her burden of overcoming, by a clear showing, the presumption of validity of the ordinance under attack. 26-2-6114 AAT Communications Corp. v. Washington Twp. Bd. of Adjustment, et al., App. Div. (11 pp.) The trial judge correctly affirmed the board’s determination that a variance was required for plaintiff’s application to construct a communications tower in a mountainous residential zone, since the plaintiff meets the definition of an “essential service” provider under the ordinance; the judge, however, erred in affirming the board’s denial of the variance because the tower would not be an “inherently beneficial” use. TRANSPORTATION — AUTHORITY TOWING CONTRACTS 49-2-6115 N.E.R.I. Corp., et al. v. N.J. Highway Auth., et al., App. Div. (13 pp.) Since the Garden State Parkway is a limited access highway where there is legitimate concern for the personal security of a stranded motorist, character and integrity are critical elements of the authority’s selection of a towing contractor, and since those elements cannot be evaluated exclusively in terms of dollars and cents, but also require subjective judgment, the rubric of “public convenience” includes these considerations and the authority is not required to bid its towing contracts. [Approved for publication July 11, 1995.] [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-6116 State v. Benjamin Levine, M.D., App. Div. (6 pp.) The Law Division judge properly denied doctor’s application for public defender representation in connection with doctor’s retrial on charges of criminal sexual conduct, since, although doctor claims to have gone into debt paying for private counsel in his first trial (where he was acquitted of sexual assault), he still has equity in his assets, and simply has not substantiated his claim that he is financially unable to retain any competent private counsel. 14-2-6117 State v. Harold Love, App. Div. (13 pp.) In the prosecution of defendant for robbery, where the judge sua sponte declared a mistrial due to his mother-in-law’s sudden death and his immediate need to leave the proceedings, although double jeopardy had attached when the first jury was empaneled, there was no error in the trial beginning again the following day before another judge and jury, since the mistrial was caused exclusively by the judge’s personal problem, was not in bad faith, was not designed to help the state’s case, and there was no disposition based on the merits of the case; however, in the future, a judge should consider the alternatives to a mistrial on the record. [Approved for publication July 11, 1995.] [Available online in N.J. Full-Text Decisions.] 14-2-6118 State v. Rodney Bull, App. Div. (11 pp.) Defendant’s conviction is reversed since the judge, in charging the jury on defendant’s charge of possession of a knife with a purpose to use it unlawfully, did not tell the jury what specific unlawful purpose defendant was supposed to have entertained as he possessed the knife, and the jury cannot be left to speculate.

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