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Vol. 4 No. 63 – APRIL 2, 1996 STATE COURT CASES CONDEMNATION 44-2-8461 Borough of River Edge v. Ronald Sadri, et al., App. Div. (3 pp.) The trial judge correctly ruled that condemnee was not entitled to reimbursement of real estate taxes paid or accrued while the condemnation action was pending, since the borough never took actual possession of the condemned property nor filed a declaration of taking. INSURANCE — P.I.P. 23-2-8462 Palisades Safety & Ins. Assn. v. Frank Martin, Jr., App. Div. (3 pp.) Since a post-loss misrepresentation by the insured must be knowing and material in order for insurer to void a policy, summary judgment was improvidently granted to insurer in this case, since the insured made explanations that were at least plausible for a number of the discrepancies between his representations and facts the insurer discovered, and, further, some of the misrepresentations do not appear to be material. NEGLIGENCE 31-2-8463 Patrick Olarerin v. Arthur Degen, App. Div. (7 pp.) (1) Without a basis in fact that it was medically probable that plaintiff’s arthritis was aggravated by injuries sustained in the subject accident, the judge correctly refused to include a charge for aggravation of the pre-existing condition. (2) Although the judge should have explained to the jury what he meant when he said “strike that” in ruling on certain defense comments directed toward plaintiff’s prior accidents, the comments were not prejudicial, and the error was harmless, in light of the defense doctor’s testimony that plaintiff’s injuries were not caused by the accident but related solely to degenerative arthritis. PHYSICIAN/PATIENT 29-2-8464 Carmen Giannotto, et al. v. St. Peter’s Medical Center, App. Div. (4 pp.) Summary judgment was improvidently granted to defendant hospital based on failure of plaintiff — who alleged that his foot had been injured while hospitalized but produced no expert witness — to establish res ipsa loquitur, since an injury to an unconscious patient bespeaks negligence by employees of the hospital unless there is evidence to suggest that the injury could have arisen by negligence of non-employees. REAL ESTATE — FAIR HOUSING 34-2-8465 Richard G. Gober, et al. v. The Twp. of Pemberton, et al., App. Div. (5 pp.) Dismissal is required of plaintiffs’ untimely challenge under 42 U.S.C.A. Sec. 1983, by way of action in lieu of prerogative writs, to a Regional Contribution Agreement entered into by defendant municipality, since (1) exceptional and persuasive circumstances do not exist to relax the time requirements, (2) the RCA fund is nearly depleted and (3) the housing rehabilitation funds, in which plaintiffs believe they should have been allowed to participate but for their alleged discriminatory and unconstitutional exclusion, have been exhausted. REAL ESTATE — PARTITION — SAME SEX PARTNERS 34-2-8466 Lucille DiFabritis v. Edith Stitt, App. Div. (17 pp.) In ruling on plaintiff’s application to partition the various parcels of real estate she owned with her former lesbian partner, the evidence supports valid inter vivos gifts, and the judge’s determinations, inter alia, that plaintiff was a 50% owner of one piece of real estate, and 25% owner of another, are affirmed. TAXATION 35-2-8467 Intl. Flavors and Fragrances v. Twp. of Hazlet, App. Div. (10 pp.) Where township was under negotiation of tax assessment with its single largest taxpayer, it had an obligation consistent with good faith and fair dealing to make it clear to the taxpayer’s attorney that a timely Tax Court complaint was imperative or the township would invoke the statute of limitations, and, when the township continued to negotiate but ceased immediately upon the expiration of the appeals period, it should be precluded from taking advantage of the statute of limitations defense, and Tax Court’s dismissal of appeal as untimely is reversed. TORTS — FALSE IMPRISONMENT — SHOPLIFTING 36-2-8468 Angela Liptak, et al. v. Rite Aid, Inc., etc., et al., App. Div. (25 pp.) In suit for false imprisonment against drug store that detained plaintiff for shoplifting when she removed manufacturers’ coupons from panty hose before she went to the check out-counter, the judge, inter alia, (1) properly concluded that coupons have value and are “goods” within the statutory definition of “merchandise” under the Shoplifting Act, N.J.S.A. 2C:20-11, and that the store detained plaintiff for a reasonable period of time as a matter of law but (2) erred in deciding probable cause of plaintiff’s guilt as a matter of law, since there were factual issues for the jury to resolve. [Approved for publication Apr. 2, 1996.] WORKERS’ COMPENSATION 39-2-8469 Aire Lee Crumbley v. Helene Fuld Medical Center, App. Div. (3 pp.) Judge correctly dismissed claim petition because petitioner failed to attend a medical examination scheduled by the employer, despite the repeated efforts of the court and her attorney to convince her that she was required to do so. 39-2-8470 David Wade Stebbins v. David Speer, App. Div. (3 pp.) There was sufficient credible evidence in the record, when due regard is given to the compensation judge’s resolution of witness credibility, to support the decision that workers’ compensation coverage existed for petitioner’s claimed injury and that the insurance had never been properly cancelled. CRIMINAL LAW AND PROCEDURE 14-2-8471 State v. Lyle Nance, App. Div. (15 pp.) In murder trial, the judge erred when he permitted the state to present evidence of defendant’s conduct toward a former girlfriend, since defendant was not charged with a crime toward the girlfriend and his prior bad acts were irrelevant to the issues the jury had to decide. 14-3-8472 State v. Pedro Soto, et al., Law Div. (16 pp.) Where African-American motorists arrested on the New Jersey Turnpike established, through statistics, a de facto policy of selective, discriminatory enforcement of the traffic laws which the state has failed to rebut, evidence and contraband seized are suppressed.

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