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Vol. 3 No. 122 DECISIONS RELEASED JUNE 29, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE 01-2-6022 Larry S. Loigman v. Twp. Committee of Middletown, et al., App. Div. (4 pp.) Where administrative law judge, in dismissing appeal of an individual who objected to a pub’s liquor license renewal, did not conduct a trial de novo but instead relied solely on an unrecorded telephone settlement conference and a subsequent personal interview with the licensee’s attorney, the objector was deprived of the opportunity to develop a record regarding the propriety of the township’s renewal of the license, and the dismissal is reversed and remanded for a hearing. 01-2-6023 Middlesex County Educ. Svcs. Comm’n v. N.J. Dept. of Educ., App. Div. (6 pp.) State Board of Education, recognizing the difference between a district board of education and an educational service commission, such as petitioner, correctly held that the difference did not entitle petitioner to retain Chapter 1 service funds in excess of the cost of service, and the state board’s decision ordering the refund is affirmed. CONSUMER PROTECTION 09-2-6024 Zorba Contractors Inc. v. Housing Auth. of the City of Newark v. Georgia-Pacific Corp., et al., App. Div. (5 pp.) The Law Division judge erroneously dismissed consumer fraud claims brought by the Newark Housing Authority against suppliers of defective roofs used at housing complexes, on the ground that the authority is not a “person” within the state Consumer Fraud Act, and, as the authority is a consumer entitled to the act’s protection, the dismissal is reversed. [Approved for publication June 29, 1995.] [Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-2-6025 Mary McGinty Malloy v. Michael Patrick Malloy, App. Div. (5 pp.) Order granting mother’s application for a venue transfer on a post-judgment matrimonial matter involving custody and visitation issues is affirmed since the child in question has resided in the new county for three years, and many witnesses and resources necessary to resolve issues relative to the child’s well-being are located in that county. INSURANCE 23-1-6026 Gerard Doto, et al. v. Anthony Russo, et al., Supreme Ct. (25 pp.) Although umbrella policies do not characteristically contain UM/UIM coverage, insurance contracts are contracts of adhesion, and a review of the record compels the conclusion that not only the insured, but also the insurer, acted on the assumption and expectation that the umbrella policy provided UM/UIM coverage, and the insurer is estopped from denying underinsured coverage to its insured under its commercial umbrella liability policy. [Available online in N.J. Full-Text Decisions.] 23-2-6027 John Murawsky v. Equitable Life Assurance Society of the U.S., App. Div. (11 pp.) Summary judgment was incorrectly entered in favor of the insurer that rescinded a disability policy issued to the insured, since there were genuine issues of material fact as to whether the insurance company’s agent misled the insured during the application interview or was negligent in failing to ask the insured certain questions, and the judgment is reversed and remanded for a hearing. LANDLORD/TENANT 27-2-6028 Abdullah Muhammad, et al. v. Giacomo Inc., et al., App. Div. (6 pp.) Where lease was signed by tenants and an individual named “Marucca” on the line for the landlord, but where “Marucca” was not designated as an agent of the landlord or otherwise identified, judgment dismissing tenants’ claims against “Marucca” in their suit for the return of their security deposit was proper, since tenants offered no proof that individual had participated, either directly or indirectly, in the wrongful deposit and withholding of the monies. LAND USE 26-2-6029 Suburban Assocs. v. Twp. of Rochelle Park Planning Bd., et al., App. Div. (4 pp.) Planning board had the jurisdiction to grant landowner’s application for site plan approval and related variances, including one that permits parking in a buffer zone, and objector’s position that planning board lacked jurisdiction because of an ordinance prohibiting use of any kind in a buffer zone is without merit, since such a prohibition is functionally the same as a prohibition against developing the area within setback, side-yard or back-yard requirements, from which planning boards clearly have the authority to grant variances. NEGLIGENCE 31-2-6030 Ira Levin, et al. v. Newark Beth Israel Hosp., et al., App. Div. (8 pp.) In a suit where plaintiff sued hospital and parking lot operator for injuries sustained when she fell in a hole in the sidewalk in front of the hospital’s parking-lot driveway, trial judge erred in not instructing the jury to allocate the percentage of negligence between the hospital and the lot operator, since despite indemnification agreement between the hospital and lot operator, (1) there was no unification of responsibility as to the lot, (2) there was sufficient evidence from which a jury could discern different and distinct duties concerning the sidewalk, and (3) the Comparative Negligence Act directs that the parties’ respective liability shall be considered by the jury. PRODUCT LIABILITY 32-2-6031 Amy Pomerantz, et al. v. White Consol. Indus., et al., App. Div. (12 pp.) Summary judgment in favor of sewing-machine distributor was improperly granted in case where home economics student was injured when sewing-machine needle went through her finger, since there were questions of fact regarding whether a finger guard should have been in place and whether distributor was entitled to assert affirmative defenses. TORTS 36-2-6032 Robert Dennis, et al. v. Allyn Z. Lite, et al., App. Div. (2 pp.) Since whether plaintiffs are entitled to relief based on defendants’ alleged abuse of a federal civil procedure rule is a matter to be decided by the federal court, and since there is no independent state cause of action for abuse of a federal rule, defendants should have been granted summary judgment dismissing plaintiff’s abuse of process claim. CRIMINAL LAW AND PROCEDURE 14-2-6033 State v. Michael Blacknall, App. Div. (16 pp.) Where the trial judge ruled at the end of the state’s case that he would not charge the jury on first-degree kidnapping, and the defendant then took the stand to testify in his defense, the trial judge’s decision acted as an acquittal of the first-degree charge, and he violated double-jeopardy principles when he later stated that he reconsidered and reinstated the first-degree charge.

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