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Vol. 3 No. 160 Decisions Released August 24, 1995 STATE COURT CASES FAMILY LAW 20-2-6430 Robert Salovitch v. Roberta Salovitch, App. Div. (5 pp.) Order denying husband’s post-divorce judgment application to terminate his alimony obligation is reversed, since the motion judge erroneously focused on the fact that the husband had retired as not being a sufficient basis to reduce alimony, while he should have made findings regarding the husband’s post-retirement ability to pay alimony, as well as the wife’s current needs and ability to meet those needs through her employment earnings. FAMILY LAW — DOMESTIC VIOLENCE 20-2-6431 Joanne Daly v. Peter Scholte, App. Div. (2 pp.) Court’s entry of final restraining order against defendant, based upon the fact that court found that defendant had vandalized his ex-girlfriend’s car, is reversed, since the evidence, which consisted of plaintiff’s testimony that she came out of her home and found that her vehicle had been damaged while she slept, and defendant’s admission to being on the premises the afternoon before the damage was done, but denial of any connection with the vandalism, was insufficient to establish the defendant’s guilt by a preponderance of the evidence. INSURANCE 23-2-6432 Dorothy C. Herman v. Allstate Ins. Co., et al., App. Div. (8 pp.) Where there were fact issues surrounding the insurer’s issuance of and insured’s negotiation of a proceeds check issued by insurer for storm damage to beach house, in a case where insured felt all damage was due to wind and therefore covered, and insurer felt that some damage was due to wind, but some to water, which was not covered, summary judgment should not have been granted to the insurer on the grounds of accord and satisfaction. INSURANCE — VERBAL THRESHOLD 23-2-6433 Wayne Bladzinski, et al. v. Jan Sadlak, App. Div. (3 pp.) The trial court correctly rejected plaintiff’s type 9 injury claim because the record contains no medical justification for his missing 94 days of work as a self-employed electrician. 23-2-6434 John K. Legore, et al. v. John J. Tomko, App. Div. (4 pp.) Summary judgment for the defense was proper where plaintiff sought and completed treatment for injuries to his left shoulder and left rib cage five months after accident, and then saw another physician 20 months after the accident and began therapy for a left shoulder complaint, since there was no medical evidence relating the left shoulder problem to the accident, except for plaintiff’s subjective complaints. LAND USE 26-2-6435 Ronald Ginsberg v. Twp. Comm. of Cranford, et al., App. Div. (8 pp.) Township commitee acted properly and reasonably in amending its zoning ordinance–allowing for various uses, some of which were previously permitted and some of which were new, but all of which were compatible with the master plan and zoning scheme–based on a review, with the township’s consultant, of previous variance applications, and the fact that similar variance applications had been denied does not preclude the municipality from amending the ordinance later. REAL ESTATE — QUIET TITLE — LAND USE 34-2-6436 Eureka Assoc., etc., et al. v. Galloway Twp. Council, et al., App. Div. (33 pp.) Judge’s denial of the validity of plaintiff’s title–and, consequently, plaintiff’s right to seek relief against the municipality for alleged arbitrary denial of certain approvals sought by plaintiff–is affirmed under the extensive facts of this case, where plaintiff’s predecessor-in-title’s prior quiet title actions were invalidated because title was obtained through wild deeds and not adverse possession, as alleged. TAXATION 35-5-6437 Daniel Dowd v. Howell Twp., Tax Ct. (8 pp.) Denial of farmland assessment was proper since grazing horses for a fee, with no sale of horses or feed crops involved, does not qualify as an agricultural use for purposes of farmland assessment. [Approved for publication.] 35-5-6438 Grandal Enter. Inc. v. Keansburg Borough, Tax Ct. (8 pp.) Where landowner disputed borough’s determination that its land constituted two tax lots instead of one, but failed to challenge the determination in an appeal of the added assessment, it may not do so by way of an application for Freeze Act relief. [Approved for publication.] TORTS — LIBEL 36-2-6439 The Van Sciver Co., et al. v. Ocean Nat’l Bank, et al., App. Div. (26 pp.) In real estate agency’s libel suit against its bank, alleging that bank agents falsely disseminated information in the business community that the real estate agency was bankrupt, the Law Division erroneously held that the real estate agency was a public figure and bank was entitled to the heightened protection of the actual malice burden of proof, and matter is remanded for further proceedings as a normal commercial defamation claim. WORKERS COMPENSATION 39-11-6440 Shirley Paylor v. County of Hudson, Workers Comp. Ct. (15 pp.) In case where petitioner, a prison corrections officer, suffered injuries when she attempted to break up a fight between two inmates, and later developed serious heart problems that were only remediable by a heart transplant, the court finds the testimony of the petitioner’s medical experts–that the heart condition arose out of the injuries sustained in the accident–more credible than that of the respondent’s medical expert–who concluded that the heart problem’s development after the acccident was mere coincidence–and the petitioner is found, therefore, to be totally disabled and, since the disability is related to the accident, it is compensable. FEDERAL COURT CASES ATTORNEY/CLIENT 04-7-6441 Elinore West v. Joel Rosen, U.S. Dist. Ct. (15pp.) In the context of a matrimonial action, where client sued her former attorney for his alleged malpractice in failing to obtain executions upon her ex-husband’s assets, (1) since statements made by attorney in the course of his representation were absolutely immune, a defamation count is dismissed, and (2) the malpractice and fraud counts also are dismissed, since plaintiff can show no more than speculative harm, and has shown no damage, falsity or detrimental reliance. BANKRUPTCY–LANDLORD/TENANT 42-8-6442 In re: Flagstaff Realty Assoc., t/a F.R.A. Ltd. Ptshp., Debtor; Megafoods Stores Inc. v. Flagstaff Realty Assoc., etc., et al., Third Cir. (13 pp.) Where landlord failed to fulfill its responsibility to repair demised premises, and tenant, pursuant to lease, made the repairs at its own cost and sought to offset the cost from its rent, although the landlord could reject the lease in landlord’s subsequent bankruptcy proceeding, this relieved landlord of only prospective obligations to tenants and did not alter the parties’ substantive rights under the prior lease, and the tenant is entitled to an abatement against future rent payments and, although the debtor’s plan has been confirmed, under the circumstances in this case, the plan may be reopened, and the matter is remanded to the bankruptcy court to determine a rent abatement that would balance the reimbursement to the tenant with ensuring the plan’s success. CORRECTIONS 13-7-6443 Carson Slue v. Lance Byrd, et al., U.S. Dist. Ct. (15 pp.) Inmate’s allegations of civil rights abuses are dismissed, since (1) the state court already ahs determined that inmate received a fair hearing on a disciplinary infraction, and his due process claims are, therefore, res judicata, (2) inmate placement in a double-bunk cell and verbal-harassment claims are not constitutional violations, and (3) although certain conditions in inmate’s cell could constitute a constitutional violation, there is no evidence that the corrections officer was responsible for the conditions or was even aware of them, so the claims against the officer are dismissed. END

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