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Vol. 3 No. 124 Decisions Released July 3, 1995 STATE COURT CASES ATTORNEYS 04-2-6046 George J. Pepe v. Helen Maggio Green, et al., App. Div. (4 pp.) Trial judge erred in imposing counsel fees against attorney for his attempts to cite non-appearing witnesses for contempt, since, even if the action taken was frivolous in nature, the award of attorneys’ fees under the frivolous litigation statute applies only against non-attorney litigants, and not against attorneys or pro se litigants, and the recourse against the attorney should be through disciplinary proceedings, if appropriate. FAMILY LAW 20-2-6047 Petra Torwich (n/k/a Abrom) v. Walter Torwich, App. Div. (7 pp.) When equitable distribution was ordered after a full trial and not by settlement agreement, and the wife was awarded a certain percentage of her husband’s military pension, the motion judge abused her discretion when she denied wife’s motion to adjust equitable distribution later when the husband waived his regular pension by applying for military disability payments, which had a substantial adverse impact on the wife. [Approved for publication July 3, 1995.] [Available online in N.J. Full- Text Decisions.] 20-2-6048 Sandi Krawitz v. Michael I. Krawitz, App. Div. (10 pp.) The trial court erred in denying retroactivity to its order terminating father’s support obligation as to eldest son, who had ceased living with wife and lived permanently with the father (although he was now living away at college) and retroactivity should be ordered to the date the motion was made, not the date of the hearing. INSURANCE — VERBAL THRESHOLD 23-2-6049 Jeanine Kirkland v. Mark Glasby, App. Div. (4 pp.) Where treating physician did not record any evidence of spasm, discoloration or swelling, and where all the tests performed on plaintiff were normal, the fact that there were findings of tenderness and restricted range of motion were not sufficient to survive a defense motion since these findings were based entirely on plaintiff’s subjective responses, as was her stated inability to perform her occupation as an exotic dancer. LABOR AND EMPLOYMENT 25-2-6050 Sandra Bucklin v. Acme Markets, Inc., App. Div. (3 pp.) Although employer gave three different reasons for terminating employee, and usually a plenary hearing should be held when there are disputed fact issues, there is no evidence other than employee’s bare allegations that she was terminated on the basis of her handicap, and, therefore, the Div. of Civil Rights was justified in concluding that there was no probable cause and dismissing her complaint for unlawful discrimination. LANDLORD/TENANT 27-2-6051 Victor Alarcon, et al. v. Ward Wrangen, et al., App. Div. (4 pp.) Considering the judge’s ability to appraise the credibility of the witnesses, there is no reason to disturb his finding that monies were wrongfully withheld from tenants’ security deposit by the landlord; however, his computation of the amount to be returned to the tenants is incorrect and is modified. NEGLIGENCE 31-2-6052 Ireneusz Kuzmicz, et al. v. Ivy Hill Park Apts., et al., App. Div. (13 pp.) Where management of apartment complex knew that there were incidents of violent criminal activity in the adjoining lot, and knew that its tenants walked across that lot on a path to cross over to shopping center (and in fact created an opening in their fence to facilitate access to the path), it knew that its tenants were at risk, and, since it did not warn its tenants, or close the gap in the fence, it violated a duty to the tenants and was liable for its negligence when one of the tenants was attacked and severely injured on the lot. [Approved for publication July 3, 1995.] [Available online in N.J. Full-Text Decisions.] PARENT/CHILD 28-2-6053 George J. Pepe v. Helen Maggio Green, App. Div. (3 pp.) The judge, in reviewing the evidence and conducting an interview with the minor, correctly considered the best interests of the minor (then seventeen) when he denied putative father’s application for blood testing to establish paternity. WORKERS’ COMPENSATION 39-1-6054 Frederick Colon v. Coordinated Transport, Inc., Supreme Ct. (17 pp.) (1) Since range-of-motion test results are generally subjective, diminution of range of motion alone does not satisfy the “demonstrable objective medical evidence” standard required under the Workers’ Compensation Act to establish partial-permanent disability, and, (2) in the absence of legislative intent, it is inappropriate for the Court to create a minimum percentage of disability which should be established as a numerical threshold for determining when a disability is too minor to justify a workers’ compensation award. [Available online in N.J. Full- Text Decisions.] WRONGFUL DEATH 40-2-6055 Elizabeth K. Fishman, et al. v. Director, Monmouth Beach Bathing Pavilion, et al., App. Div. (18 pp.) Since the State could not be liable for failing to supervise a public recreation facility in the absence of a dangerous condition, and since plaintiffs failed to prove that decedent (72-year old man who died while swimming on a closed and unsupervised beach after hours) died as a result of any dangerous condition, summary judgment in favor of defense was proper. 40-2-6056 Jay H. Katz, Administrator, et al. v. BPS Guard Services, Inc., et al., App. Div. (10 pp.) Where plaintiffs’ decedent died as a result of injuries sustained when he was allegedly assaulted by security guards at a rock concert, and where plaintiffs settled with the security company but proceeded against arena, summary judgment was properly granted to arena based upon the express indemnification language of its contract with security company. Editor’s Note: As the courts are closed tomorrow, there will be no Alert issued. The next Alert will be issued on Wednesday, July 5, 1995. A

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