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Vol. 4 No. 57 – MARCH 25, 1996 STATE COURT CASES AUTOMOBILES — INSURANCE 05-2-8279 Mark Wenzler v. ITT Hartford, et al., App. Div. (12 pp.) Insurance Commissioner’s decision upholding the non-renewal of plaintiff’s auto insurance policy because he had accumulated too many points during the term of the policy is affirmed, since a conviction is not necessary for the imposition of points for an at-fault accident; the Commissioner also correctly rejected plaintiff’s theory that the Legislature had improperly delegated power to the commissioner. CONDEMNATION 44-3-8280 Jersey City Redevelopment Agency, etc. v. Mack Properties Co. #3, et al., Law Div. (17 pp.) The court finds that a willing buyer would conclude that the condemned property — one of the few remaining undeveloped waterfront properties in Jersey City — is not appropriate for high intensity office or residential development absent a major redevelopment plan, the only feasible mechanism for upgrading the physical environment of the area of the site; and, therefore the highest and best use of the property is a continuation of its present warehouse use. CORRECTIONS 13-2-8281 Gonzalo Marrero v. Dept. of Corrections, App. Div. (6 pp.) Prisoner’s administrative placement into a closer security housing area is affirmed, since the administrator considered not only reliable confidential informant information about prisoner’s planned escape, but his whole record, which included a prior escape, unexcused absences from assignments, destruction of property, refusing work assignments, and presence in unauthorized areas. ENVIRONMENT 17-2-8282 In re: Hazardous Waste Facilities Siting Commission., etc., App. Div. (75 pp.) The Hazardous Waste Facilities Siting Commission properly followed the statutory siting criteria in qualifying and designating a twenty-acre tract of land in Linden as an appropriate location for the construction of an incinerator that will burn 50,000 tons of hazardous waste per year. EVIDENCE — DISCOVERY 19-2-8283 Antwyne Little, et al. v. James McIntyre, et al., App. Div. (6 pp.) In a toxic tort case where the infant plaintiffs allegedly suffered from cognitive disabilities because of lead poisoning from conditions on the defendants’ properties, the court upholds its prior ruling that defendants may not compel a psychological examination of the plaintiffs’ mother — to show that the disabilities may be genetic — since she is not a true party to the lawsuit, but acts only as a guardian ad litem for the children, and since she is not alleging personal injury. [Approved for publication Mar. 25, 1996.] FAMILY LAW 20-2-8284 Charles Start v. Geraldine Start, App. Div. (19 pp.) Although the court affirms both the judge’s decision to award the defendant permanent alimony, and the amount of the award, the court finds that there is a basis for the consideration of an award of rehabilitative alimony as well, and remands for reconsideration; the court finds that the mandate of Pascale v. Pascale, 140 N.J. 583 (1995) is not merely prospective, and affirms the judge’s award of stock options to defendant, since the asset was accumulated through efforts of both parties. INSURANCE — P.I.P. 23-2-8285 Jessie M. Clark v. Amgro/Hanover Ins. Co., App. Div. (5pp.) The record does not support insurer’s contention that the insured was awarded PIP benefits for the diagnosis and treatment of cancer, unrelated to the accidental injuries, and the award to the insured is affirmed. INSURANCE — UNIDENTIFIED DRIVERS 23-2-8286 Elizabeth Padilla v. The Commissioner of Insurance, App. Div. (6 pp.) Although the Unsatisfied Claim and Judgment Fund alleges that its subrogation rights have been irreversibly prejudiced by plaintiff’s late filing of the complaint, since the unidentified tortfeasor can no longer be identified, the argument is without merit because the tortfeasor could not be identified when the initial accident report was received four years earlier and there is no prejudice. NEGLIGENCE 31-1-8287 Alejandra Icabalzeta, et al. v. Sea-Land Svcs., Inc., et al., Supreme Ct. (7 pp.) The failure of ship’s tank-cleaning subcontractor to use lights provided to them by ship owner created a transient dangerous condition that arose after the ship was turned over to the subcontractor, and, without evidence that the ship owner knew of this condition, there was no basis for liability against owner as to the inadequate lighting condition when subcontractor’s employee fell and was killed while cleaning tank; however, the lack of guardrails was not a transient condition, but a fixed condition that existed at the time the ship was turned over to the subcontractor, and there exists a triable issue of fact on whether ship owner violated its turnover duty to the subcontractor. 31-2-8288 John J. Boyle, et al. v. Wawa, Inc., etc., et al., App. Div. (5 pp.) Judge properly excluded evidence of subsequent conduct of convenience store with respect to floor cleaning policies, since there was no real credibility question to be resolved, and subsequent conduct was therefore inadmissible. 31-2-8289 Sharon Burton, et al. v. State of N.J., et al., App. Div. (3 pp.) The record reveals that the police report, issued on the day of the accident, indicated that the state Treasury Dept. owned the vehicle that struck plaintiffs’ vehicle, and the plaintiffs’ contention that they were unable to obtain a copy of the police report within the ninety-days necessary to file a notice of claim under the Tort Claims Act is unsupported. PARTNERSHIPS — SETTLEMENT AGREEMENTS 02-4-8290 Stanton Properties, etc., et al. v. Chanco Development Corp., et al., Chancery Div. (17 pp.) Where defendants defaulted on the settlement agreement executed in deteriorated real estate development partnership litigation, and plaintiffs seek entry of final judgment in this action to enforce the terms of the settlement agreement, equity mandates that the judgment be entered even though the entry of the judgment in the form proffered by plaintiffs would affect parties who were not defendants in the original suit, since the unnamed parties had notice of the settlement agreement, were involved in the negotiations from their inception, and executed a number of instruments to secure the agreement pursuant to its terms. PUBLIC ASSISTANCE 45-2-8291 S.J. v. Somerset Cy. Bd. of Social Svcs., App. Div. (8 pp.) The ALJ properly directed termination of emergency assistance payments for shelter placement to petitioner as a sanction for petitioner’s non-compliance with a work-training program. CRIMINAL LAW AND PROCEDURE 14-2-8292 State v. S.C., App. Div. (17 pp.) The legislature intended to protect children from the dangers of being employed in any drug distribution scheme, and, where defendant brought a three-year old child with him to divert police attention away from his drug-related activities, such conduct still presented a danger to the child, and involved the “use of a child” in the drug scheme, notwithstanding the fact that the child was a passive participant. [Approved for publication Mar. 25, 1996.] CRIMINAL LAW — DOMESTIC VIOLENCE — SUMMONS vs. WARRANT 14-4-8293 State v. Mark Krivoshik, Chancery Div. (7 pp.) The fact that charges of contempt and harassment against defendant arose in the context of his violation of a final restraining order issued on a domestic violence complaint did not, in and of itself, furnish a basis for the clerk’s issuance of a warrant for the defendant’s arrest, rather than a summons, since a summons should issue unless it is determined that certain conditions exist, and there was no reason for the clerk to believe that the only applicable condition — that the defendant was dangerous to himself, to others or to property — existed in this case where the charges stemmed from defendant’s telephone calls to the complainant in which he argued that child visitation conditions were unfair. [Approved for publication Mar. 20, 1996.] CRIMINAL LAW — PRE-TRIAL INTERVENTION 14-3-8294 State v. Paolo A. Lopes, Law Div. (20 pp.) The program director abused his discretion in denying defendant’s admission to PTI in that he focused on the nature of the offense — in that it involved children — to the exclusion of all other relevant factors, and merely “parroted” the applicable admission factors without giving any factual basis for his decision as to how these factors applied to defendant. [Approved for publication Mar. 20, 1996.]

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