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Vol. 4 No. 90 – MAY 10, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-1-8861 In the Matter of Richard W. Banas, Supreme Ct. (14 pp.) Where client’s mother believed that money she gave to attorney would be returned if her son was not released on bail, but where attorney believed his only obligation was to see that bail was “set,” attorney erred in keeping the money when the client could not post the bail set by the court, and reprimand is the appropriate sanction in light of attorney’s prior good record. CONTRACTS — NEGLIGENCE — DAMAGES 11-2-8862 James Debuono Assocs. Inc. v. C.G. Developers, App. Div. (7 pp.) Where plaintiff sued defendant for services rendered in delineating a wetlands area on defendant’s property, and defendant prevailed on counterclaim that the plaintiff’s performance was negligent, the judge erred in awarding defendant six cents nominal damages, since the defendant is clearly entitled, at least, to a refund of the monies already paid to plaintiff, and possibly more; therefore, the matter is remanded. DEBTOR/CREDITOR — FORECLOSURE 15-2-8863 Jean M. Beauvil, et al. v. Citicorp Mortgage Inc., etc., et al., App. Div. (8 pp.) The judge properly dismissed plaintiff’s suit to recover monies paid to mortgagee to secure postponement of sheriff’s sale during forbearance negotiations, as an effort to avoid an already litigated issue — the amount due on the mortgage — since payment remitted to reduce an adjudicated debt cannot be recovered by labeling it consideration to induce a new mortgage agreement. EVIDENCE 19-2-8864 Annette Wasielewski, et al. v. Allstate Ins. Co., et al., App. Div. (4 pp.) Although plaintiff’s treating physician’s records originally had been offered by a defendant who later procured an involuntary dismissal from the case, the judge did not err in allowing the records to be submitted to the jury, since they constituted important evidence concerning the viability of plaintiff’s claim against the remaining defendants. FAMILY LAW — COUNSEL FEES 20-2-8865 Barbara Finkel v. Stuart I Finkel, App. Div. (9 pp.) Where Family Part judge sent plaintiff to the General Equity Part to litigate fraudulent transfer and I.R.S. lien issues with respect to the parties’ matrimonial residence — which residence was the subject of a constructive trust ordered for child support in the Family Part — the Family Part erred in denying plaintiff’s applications for counsel fees incurred by her in the General Equity action. [Approved for publication May 10, 1996.] INSURANCE — VERBAL THRESHOLD 23-2-8866 Rita Fandell v. Cynthia A. Punzo, et al., App. Div. (6 pp.) There was no error in the trial court’s refusal to direct a verdict for plaintiff on the verbal threshold issue, since plaintiff’s equivocal answers to interrogatories and the inconsistent versions of the accident she gave to her different doctors could have led the jury to believe that plaintiff’s testimony was questionable. LABOR AND EMPLOYMENT — TEMPORARY DISABILITY BENEFITS 25-2-8867 Jean T. Street v. Bd. of Review, et al., App. Div. (8 pp.) Monies received pursuant to a Section 20 settlement constitute workers’ compensation benefits within the context of the nonduplication of benefits policy mandated in N.J.S.A. 43:21-30, and therefore the Board of Review’s determination that plaintiff was obligated to reimburse temporary disability benefits is affirmed, since the benefits received by plaintiff were for the same disability for which she had settled her workers’ compensation claim. LAND USE 26-2-8868 The Children’s Inst. v. Verona Twp. Bd. of Adj., et al., App. Div. (8 pp.) The Board of Adjustment acted arbitrarily, capriciously and unreasonably in its denial of variance application to plaintiff — who was seeking to operate a school for handicapped children — since the negative impact of traffic from the proposed use, if detrimental at all, would not rise to the statutory degree of being a “substantial detriment to the public good.” [Approved for publication May 10, 1996.] MUNICIPAL LAW 30-2-8869 William J. Comer v. City of Paterson, App. Div. (4 pp.) Former municipal fire chief submitted extensive evidence in support of his position that late mayor had directed him not to use his vacation days and promised that he would receive payment for such days at retirement, and there were sufficient questions regarding mayor’s authority and municipality’s past practices in this regard to withstand summary judgment, which was improvidently granted to municipality on the grounds that the mayor’s action was ultra vires. PUBLIC ASSISTANCE 45-2-8870 Rosemary Forbes v. Karen Highsmith, etc., et al., App. Div. (5 pp.) The “Family Cap” law, N.J.S.A. 44:10-3.5, as applied to plaintiff, did not violate 42 U.S.C. 602(a)(24) or various laws against discrimination, including the Americans With Disabilities Act of 1990, 42 U.S.C. 12101-12213. PUBLIC EMPLOYEES 33-2-8871 Margaret R. Sells v. Pub. Employees’ Retirement Sys., App. Div. (11 pp.) The PERS Board should have relaxed the time requirements to permit plaintiff’s purchase of service credits after retirement since she became “confused” during her attempts to comply with applicable procedures, based on communications with employees from the Division of Pensions. PUBLIC EMPLOYEES — RESIDENCY REQUIREMENTS 33-3-8872 Communications Workers of Am., AFL-CIO, etc. v. James W. Treffinger, etc., et al.; Essex Cy. Police PBA, etc. v. James W. Treffinger, etc., et al., Law Div. (35 pp.) (1) Based on the relevant statutes and case law, the prosecutor and the sheriff are each the exclusive employer and/or hiring authority for his office, not the county, and, accordingly, members of the prosecutor’s and sheriff’s offices are not subject to a residency requirement. (2) The equities favor the grant of a preliminary injunction to prevent defendants from terminating the remaining plaintiffs in this case through enforcement of the residency requirement pending a final determination of the estoppel issue on the merits. [Approved for publication May 9, 1996.] Also approved for publication: The Appellate Division has withdrawn its April 29, 1996 opinion in the case of Danco Inc. v. Commerce Bank/Shore N.A., et al., DDS No. 06-2-8717. This case was approved for publication and included a dissent. The court has now revised its opinion (which does not include a dissent), and issued it for publication on May 10, 1996. For identification purposes, this opinion will bear DDS No. 06-2-8873. A Daily Reporter of N.J. Court Decisions

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