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Vol. 4 No. 79 – APRIL 25, 1996 STATE COURT CASES AUTOMOBILES 5-2-8690 Gmo Rice v. Admiral Buick, App. Div. (5 pp.) A used car purchaser is entitled to rescission under N.J.S.A. 39:10-26 to -30 where vehicle’s exhaust system failed inspection three times. CIVIL PROCEDURE – ENTIRE CONTROVERSY 7-2-8691 Peter N. Perretti Jr., v. Ran-Dav’s County Kosher, Inc., et al, App. Div. (7 pp.) Where counterclaim is brought in summary enforcement action, the entire controversy doctrine requires the trial court to assume a proactive management role by, for example, severing or joining claims, staying or accelerating their consideration, and retaining or transferring jurisdiction, instead of merely dismissing the counterclaims. [Approved for publication] CONSTITUTIONAL LAW 10-2-8692 Women’s Choice of Bergen County, P.A. v. John Doe, et al, App. Div. (10 pp.) Injunction restricting the manner and location of anti-abortion picketing is narrowed to prohibit verbal communications in a volume “that interferes with the provision of medical services” and to allow “quiet sidewalk counseling of a non-threatening nature in the buffer zone” by not more than two counselors who stop when targeted individual indicates a desire to be left alone. CONTRACTS – WARRANTY – TORTS 11-2-8693 Anthony J. Dimarco, et al v. International Building Products, Inc., et al, App. Div. (14 pp.) 1. Where plaintiffs sought recovery under statutorily recognized express and implied warranties and the defense asserted the existence of language that limited the remedies under those warranties, defendant had the burden of coming forward with evidence showing the extent of any limitation. 2. Commercial entities’ negligence claims for lost profits but not for property damage arising from leaky roof are barred by Spring Motors. 3. Consumer Fraud Act does not extend liability to successor corporations. ENVIRONMENT 17-2-8694 New Jersey Department of Environmental Protection v. Harry and Suzanne Toufayan, App. Div. (6 pp.) Homeowner who built swimming pool on wetlands violated Freshwater Wetlands Protection Act. Army Corps Nationwide permit exemption is not applicable because homeowner did not submit an application, receipt or subsequent authorization from the Corps as required by N.J.A.C. 7:7A-2.9(b)6i. FAMILY LAW 20-2-8695 E. Christine Rolnick v. Jerome J. Rolnick, App. Div. (16 pp.) Defendant’s conduct in destroying his income tax returns, which were crucial records germane to the proceedings, coupled with his unilateral disregard of the financial terms of the property settlement incorporated in the divorce judgment were contumacious; on remand the case is to be assigned to a different trial judge who must make specific findings of fact and conclusions of law about fraud, spoliation and attorneys fees, and appoint an accountant or fiscal agent at defendant’s expense. [Approved for publication] INSURANCE – AUTOMOBILES 23-2-8696 Louis Aversano v. Atlantic Employers Insurance Co., App. Div. (11 pp.) Plaintiff who was injured by stepping into a pothole in a parking lot as he was walking toward his car with key in hand reaching for the lock and who first made contact with the car as he fell is ineligible for PIP benefits, since plaintiff was not “entering into” the car within the meaning of N.J.S.A. 39:6A-4. [Approved for publication] INSURANCE – VERBAL THRESHOLD 23-2-8697 Nicole A. Tischler v. Sal Aranzo, et al, App. Div. (7 pp.) Summary judgment reversed where plaintiff presented objective medical evidence of spasm, clicking sensation in the right shoulder, and difference between right and left shoulders, as well as decreased grip strength and limitation on range of motion, thus satisfying the requirements of threshold injury types 7 and 8. LAND USE – ZONING VIOLATION 26-2-8698 State v. Juliet Vaz, App. Div. (2 pp.) State cannot appeal a not guilty verdict for violation of the zoning code under R. 2:3-1(b) and double jeopardy protection. LANDLORD/TENANT 27-2-8699 Cervelli Management v. Brenda Walker, et al, App. Div. (5 pp.) Where landlord tendered a proposed lease that eliminated past air conditioning service in multi-unit apartment and submitted evidence that the cost of rehabilitating the air conditioning system would exceed the value of the building, the lease change was reasonable pursuant to N.J.S.A. 2A:18-61.2e. MUNICIPAL LAW – PUBLIC BIDDING 30-2-8700 Meglio & Son, Inc., t/a S.O.S. Towing v. County of Essex, et al, App. Div. (6 pp.) While county had the right to reject the only responsive bid as too high, its remedy was to seek new bids; it could not enter into a private “settlement” with that bidder lowering its bid price and thereby frustrating the rebidding process. PUBLIC EMPLOYEES 33-2-8701 Middletown Township Policemen’s Benevolent Association Local No. 124 v. Township of Middletown, et al, App. Div. (3 pp.) Interest arbitration decision awarding P.B.A.’s final economic proposal but refusing to award P.B.A.’s non-economic proposal was properly affirmed; the arbitrator is required only to deal with those Hillsdale factors he deems relevant. REAL ESTATE – CONDOMINIUMS 34-2-8702 Princeton Greens Homeowners Association v. Lyda Fisher, App. Div. (2 pp.) Award of counsel fees against debtor-homeowner arises from association’s by-laws and is enforceable independent of court rule provisions for the allowance of counsel fees. TORTS 36-2-8703 Elinor P. Mulligan v. Allamuchy-Green Township first Aid Squad, App. Div. (10 pp.) Summary judgment correctly granted in favor of defendant rescue/medical entities who administered CPR to the deceased approximately one half hour after he stopped breathing and over the objection of his wife. TORTS – MUNICIPAL LAW 36-2-8704 Ricky McCrystal, et al v. Township of Lakewood, et al, App. Div. (3 pp.) Directed verdict in favor of municipality appropriate because decorative chain fence erected in bushes at municipal building (over which plaintiff tripped) is not “palpably unreasonable” within the intent of N.J.S.A. 59:4-2. FEDERAL COURT CASES CIVIL PROCEDURE 7-7-8705 Cablevision of Newark v. Silrue Corp., et al, U.S. Dist. Ct. (6 pp.) Claims against various defendants alleging illegal receipt of several telecasts are not properly joined under Rule 20 in single complaint because they do not arise out of the same transaction, occurrence or series of transactions. [Filed April 17, 1996] 7-7-8706 The Fishbein Family Partnership v. PPG Industries, et al, U.S. Dist. Ct. (11 pp.) Where party failed to appeal from magistrate judge’s order awarding attorneys fees within the required 10 days but did timely appeal a second order awarding attorneys fees in litigating the fee issue, delay was due to excusable neglect, especially since first order’s finality was ambiguous. [Filed April 3, 1996]

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