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Vol. 4 No. 88 – MAY 8, 1996 STATE COURT CASES AUTOMOBILES 05-2-8821 State v. Albert Knoettner, App. Div. (6 pp.) Defendant’s conviction for operating a motor vehicle while intoxicated is reversed, since the evidence demonstrated that defendant, seated in his vehicle in his driveway, did not, and could not, drive his vehicle out of his driveway without the removal of other vehicles, including police cars, behind him, and therefore there exists reasonable doubt as to the requisite “present intent” or ability of defendant to move his vehicle on a public roadway. CONTRACTS 11-2-8822 Access Plumbing and Heating, Inc. v. Mr. and Mrs. Ted Aronson, App. Div. (4 pp.) The trial judge correctly held that plaintiff had presented insufficient proof to establish that the charges for the defendants’ plumbing work were fair and reasonable, since the book account was not supported by any business records. EDUCATION 16-1-8823 The Bd. of Education of the Twp. of Neptune, etc. v. The Neptune Twp. Education Assn., et al., Supreme Ct. (25 pp.) After a three-year collective bargaining agreement expires, N.J.S.A. 18A:29-4.1 prohibits a board of education from paying salary increments set forth in the expired agreement to its teaching staff, despite the fact that a successor agreement is being negotiated. ENVIRONMENT — SOLID WASTE HAULERS 17-2-8824 In the Matter of the Petition of A. Fiore & Sons, etc., App. Div. (32 pp.) (1) The acting commissioner of the DEP improperly considered waste hauler’s violations in other cases in fashioning a penalty in this case, and, as a result, hauler’s patent loss of rights mandate vacation of the entire penalty. (2) Statutory recycling exemption was properly held inapplicable since there was no proof of the exemption’s implicit requirement that separation was maintained between source-separated recyclable materials and other solid waste. FAMILY LAW 20-2-8825 Gail Zawacki v. Robert Endre Tarjan, App. Div. (11 pp.) (1) Father’s change in philosophy regarding private vs. public schooling did not constitute a “change of circumstances” to modify clear direction of divorce judgment that children be educated in private schools. (2) Since court failed to explain adequately its reasons for granting father’s motion for reconsideration of dependency tax exemption ruling, it must be remanded. (3) Given the substantial disparity of income between plaintiff and defendant, an award of counsel fees to plaintiff for defense of defendant’s motions is warranted. 20-2-8826 Herbert B. Bierman v. Miriam R. Bierman, App. Div. (5 pp.) Denial of husband’s motion seeking alimony modification is remanded since the judge failed to articulate his factual and legal reasons for such denial. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-8827 James F. Linder v. Royal Ins. Co., App. Div. (4 pp.) Trial judge correctly ordered arbitration on plaintiff’s underinsured motorist claim; however the judge failed to protect insurer’s rights to a full presentation of its case on the nature and extent of plaintiff’s injuries by failing to require plaintiff to submit to an independent medical examination before arbitration. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8828 George J. Schneider v. Bd. of Review, App. Div. (4 pp.) Teacher, who was employed full time during the prior school year and had every expectation of being so employed in the coming school year, was not entitled to unemployment compensation as a result of the loss of his summer position at a municipal pool. NEGLIGENCE — DAMAGES — COMPARATIVE FAULT 31-3-8829 Cynthia Quenet, etc. v. Carol Revolinsky, et al. v. Estimate and Design Svcs., Ltd.; Otto Harling, etc. v. Carol Revolinsky, et al. v. Cynthia Quenet, etc., et al., Law Div. (12 pp.) In a wrongful death case arising out of a fire in a residential condominium unit, where jury found that plaintiff and certain defendants were negligent, (1) plaintiff’s argument that N.J.S.A. 2A:15-5.3 precludes reduction of the plaintiff’s estate’s recovery for economic damages, notwithstanding the finding of plaintiff’s 10% negligence, is without merit when the cited statute is viewed as part of the entire comparative negligence scheme and plaintiff’s recovery is reduced by 10%, and (2) since jury verdict, rendered just after and without knowledge of defendants’ settlement with one plaintiff, did not constitute a “judgment,” defendants have no legal right to proceed against plaintiff under N.J.S.A. 2A:53A-3 to compel a 10% contribution to a portion of the settlement with the other plaintiff. [Approved for publication May 6, 1996.] NEGLIGENCE — DAMAGES — SLIP AND FALL 31-2-8830 Maria Bustamante v. Jerry Regante, et al., App. Div. (8 pp.) (1) Judge’s exclusion from the jury’s consideration of plaintiff’s claim for permanent injuries to her ankle and foot constituted an erroneous exercise of the court’s authority under R. 4:37-2(b), and (2) it was error to allow cross-examination of plaintiff’s expert based on hearsay opinions authored by another, non-testifying expert and not shown to be relied on by him in formulating his conclusions. NEGLIGENCE — REBUTTAL EVIDENCE 31-2-8831 Karen Greene v. Theodore Moon, etc., et al., App. Div. (16 pp.) Trial judge properly rejected plaintiff’s attempt to admit rebuttal testimony of convenience store district manager in a slip-and-fall case because the witness could have testified in the case in chief, and the witness’s testimony did not concern any new issues. PHYSICIAN/PATIENT 29-2-8832 Judith Novello, et al. v. Arthur C. Madresh, D.P.M., App. Div. (7 pp.) Although some of the tactics employed by plaintiff’s counsel were improper, they were not prejudicial, and the trial as a whole was not unfair to the defendant, since the judge maintained control throughout, and issued corrective instructions where appropriate; judgment for plaintiff is affirmed. PHYSICIAN/PATIENT — DENTISTS 29-2-8833 Cheryl Della Pietro v. Stanley K. Rosenmertz, et al., App. Div. (9 pp.) In case where dentist severed plaintiff’s lingual nerve while removing impacted wisdom teeth, although the liability verdict for plaintiff is affirmed, the $1.5 million damages award for partial numbness to her tongue is reversed as grossly disproportionate. PUBLIC EMPLOYEES — POLICE 33-2-8834 John Knox v. Twp. of North Brunswick, et al., App. Div. (3 pp.) Order denying plaintiff’s oral application for a disciplinary hearing is affirmed, since, despite the defects in his attorney’s receipt of the disciplinary notice, plaintiff knew of and understood the need to request a hearing in writing, and no special skill was required to prepare the written request, which he could have submitted himself. REAL ESTATE 34-2-8835 Marlton Lakes Civic Assn. v. Kathleen Guthier, et al., App. Div. (14 pp.) (1) Judge erred in failing to give reasons for his decision that six-year statute of limitations applied to association’s attempt to collect beach maintenance fees provided for in restrictive deed covenants, since a 16-year statute is applicable to debts created by instruments under seal, and (2) judge further erred in failing to articulate reasons why deeds did not provide association with the right to seek increases in dues, therefore matter is remanded. TORTS — MALICIOUS PROSECUTION 36-2-8836 Frederick P. Kiesche, Jr. v. Mary Martin, App. Div. (3 pp.) Summary judgment dismissing plaintiff’s malicious prosecution complaint because he failed to present any evidence of a “special grievance” was erroneous, since a showing of “special grievance” is not an element of a malicious prosecution action based on the prior prosecution of a criminal complaint. WILLS, TRUSTS AND ESTATES 38-2-8837 Donna Vermeesch v. Estate of Sebastian Wojtaszewski, etc., App. Div. (3 pp.) Although judge found that decedent made no enforceable promise to make a conveyance of house by will to plaintiff, he correctly held that, under the circumstances of a promise made by decedent and consideration given by plaintiff, the house was not intended to be included in the estate, and judge properly imposed a constructive trust on the property for plaintiff in fulfillment of decedent’s promise. CRIMINAL LAW AND PROCEDURE — DRUG KINGPIN STATUTE 14-1-8838 State v. Isaac Wright, Jr., Supreme Ct. (9 pp.) The failure of the trial court to instruct the jury of the definition or explanation of the role of a drug kingpin and the necessity for the jury to make the determination that defendant performed such a role, all in accordance with State v. Alexander, 134 N.J. 162 (1993), requires a reversal of the conviction. FEDERAL COURT CASE PRODUCT LIABILITY 32-7-8839 Philip J. Russek, et al. v. Unisys Corp., et al., U.S. Dist. Ct. (36 pp.) Since the government contractor defense preempts postal employees’ failure-to-warn and design defect claims for repetitive stress injuries allegedly caused by defendant’s predecessor’s letter sorting machines, summary judgment is granted to defendant. [For publication.] Correction: In the Alert dated May 6th, in the federal Civil Rights case of Janice Puttorak Hendler, etc. v. Essex County Dept. of Public Safety, et al., DDS No. 46-7-8796, the word “its” in the first line of the summary should be “plaintiffs’.” The sentence should begin, “D.Y.F.S.’s motion to dismiss plaintiffs’ civil rights claims against governmental agencies…” A Daily Reporter of N.J. Court Decisions

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