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Vol. 3 No. 125 – JULY 5, 1995 STATE COURT CASES ATTORNEYS — FEES 04-2-6057 Kathleen T. DeGraaff v. Anthony J. Fusco, Jr., et al., App. Div. (8 pp.) Where an attorney agreed to defend a military policeman who was being investigated by the secret service for allegedly threatening the life of the President, and where a $15,000 retainer was charged but the record fails to show any basis for the fee, and where the investigation was discontinued after eight days with little, if any, effort by the attorney, jury verdict of no cause in client’s suit seeking return of the retainer is reversed because, inter alia, the judge improperly instructed the jury and improperly shifted the burden of proof on the reasonableness of the fee. [Decided and approved for publication July 5, 1995.] CONSTITUTIONAL LAW — ABORTION PROTESTS — INJUNCTIONS 10-2-6058 Horizon Health Center v. Anthony J. Felicissimo, et al., App. Div. (12 pp.) Where Supreme Court remanded matter for modification of an injunction that imposed time, place and manner restrictions on anti-abortion protests at a family planning clinic, but the modification continued effectively to prohibit defendants’ expressional activities on the sidewalk directly in front of the center, the injunction is further modified to allow for limited sidewalk counseling in the “buffer zone, provided that no entrance is obstructed. [Approved for publication July 5, 1995.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-6059 C.S. v. C.S., App. Div. (3 pp.) Where trial judge took no sworn testimony from wife who charged domestic violence, and there was no testimony of prior acts of domestic violence elicited from any other source, and where judge indicated that he thought the husband should obtain a lawyer due to the seriousness of the charges, even though the judge admitted that he was not sure that the husband was guilty of doing what the plaintiff had said he had done, the record does not support the issuance of a restraining order and the order is vacated. (Decided July 5, 1995.) INSURANCE — VERBAL THRESHOLD 23-2-6060 Jamar Hearns, et al. v. Sheila Morris, et al., App. Div. (3 pp.) Complaint based on eight-year old boy’s slightly discolored scar, measuring 3 cm. x 3 cm., near his eye was properly dismissed for failure to meet standard for a Type 3 injury under the verbal threshold law, since the scar did not constitute a significant disfigurement. LABOR AND EMPLOYMENT 25-2-6061 Joanne Crupi v. Bd. of Review, et al., App. Div. (5 pp.) Although legal secretary suffered from chronic fatigue due to Epstein-Barr disease, which made performance of her job difficult, it was not the job that caused the illness, and she was properly denied unemployment compensation benefits, since she left her job without good cause attributable to her work. NEGLIGENCE — BOATS 31-2-6062 Joseph Cerciello, Jr. v. Thomas Macconchie., et al., App. Div. (7 pp.) Trial judge improperly dismissed suit by passenger — who was injured when his seat collapsed due to rotting of its wooden supports — against boat owner, since principles governing duty of care owed by owners of automobiles should have been applied, not the principles governing duty of landowners to warn of known risks. [Approved for publication July 5, 1995.] NEGLIGENCE — STATUTE OF LIMITATIONS 31-2-6063 Dawn Intelli v. Debra D. Krauszer, et al., App Div. (3 pp.) Although plaintiff did not believe that her husband (the driver of the vehicle in which she was a passenger) was at all at fault in the accident, this did not excuse her from joining him as a party within the required limitations period, and the judge should have granted husband’s motion to dismiss the amended complaint against him as time-barred. REAL PROPERTY — ADVERSE POSSESSION 34-2-6064 Flossie Fry, et al. v. Edward V. Avery, App. Div. (2 pp.) Trial court correctly denied plaintiffs’ seeking of title by adverse possession to defendant’s strip of land encroached upon by plaintiffs’ fence, since (1) there was a family relationship between plaintiffs’ and defendant’s respective predecessors in title when the fence was erected and (2) plaintiffs’ possession on the disputed strip did not become hostile until the first non-family conveyance in 1978 and therefore did not meet the requirement of thirty years of hostile use. Note document # is incorrect..should be 34-2-6072. CRIMINAL LAW AND PROCEDURE 14-2-6065 State v. John M. Garthe, App. Div. (6 pp.) Defendant’s DWI conviction is reversed since, although the certificates of inspection of the Breathalyzer were properly admitted into evidence as an exception to the hearsay rule, the conclusions of the inspector that, in his opinion, the machine tested within “acceptable tolerances” and that the working systems of the machine functioned “OK” were not supported by objective standards upon which the court could judge whether the test results were proper. A

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