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Vol. 4 No. 53 – MARCH 19, 1996 STATE COURT CASES AGENCY AND PARTNERSHIP 02-2-8221 Louis S. Caiola v. Falkin Assocs., et al., App. Div. (9pp.) In suit where limited partner charged that general partners had siphoned money from the partnership’s real estate venture through improper charges, commissions and fees, judge’s findings are supported by credible evidence, including finding that general partners were not entitled to management fees on vacant units and that they incorrectly collected commissions for renting vacant units, and award to limited partner is affirmed. CORRECTIONS 13-2-8222 Edward Bermel v. N.J. State Parole Bd., App. Div. (3 pp.) Parole board’s denial of parole to inmate is affirmed, since there was a substantial likelihood that inmate would commit a new crime if released at that time based upon evidence of a recent serious institutional infraction. FAMILY LAW 20-2-8223 Julio Martinez v. Cathy Martinez, App. Div. (5 pp.) Family Part judge did not err in allowing plaintiff to proceed pro se in his divorce trial after he had discharged his lawyer, or in awarding plaintiff’s former wife rehabilitative and permanent alimony and counsel fees. 20-2-8224 Rosalie A. Evans v. Margaret McKenna, etc., App. Div. (7pp.) Where decedent acted in violation of matrimonial consent agreement and diverted certain assets to defendant — his paramour, then died intestate before his divorce was final, the trial judge did not err in imposing constructive trust on certain of defendant’s assets in favor of decedent’s wife; however, the amount imposed was inequitable under the circumstances, since the wife received more from intestate succession than she would have through equitable distribution. INSURANCE — VERBAL THRESHOLD 23-2-8225 Marlene Avallone v. Harold Avallone, et al., App. Div. (4 pp.) Summary judgment was properly entered against plaintiff since, despite having undergone a plethora of medical tests, she failed to submit any verifiable and independent evidence of the injury of which she complained. LAND USE 26-2-8226 821 McBride Ave. Inc., etc. v. West Paterson Bd. Of Adjustment, App. Div. (3 pp.) The record support’s the trial judge’s conclusion that municipality’s action against bar owner was not arbitrary since go-go dancing was not a permitted activity or use, and that bar owner’s former use of premises, featuring live bands, did not protect the change to go-go dancing as a pre-existing nonconforming use, and therefore a use variance was required. NEGLIGENCE — MUNICIPALITIES 31-2-8227 Iris Ippolito, et al. v. Borough of Pt. Pleasant, et al., App. Div. (4 pp.) Where a car accident knocked over a stop sign, and plaintiff later fell over the stop sign base and sued the municipality for the dangerous condition, the municipality was correctly granted summary judgment since the dangerous condition existed in an area not owned or controlled by the municipality, and under N.J.S.A. 59:4-4 the municipality could only be found liable if it failed to provide warning of a “dangerous condition which would affect the safe movement of vehicular traffic” or if the plaintiff relied on the protection afforded by an existing traffic control device which had been removed by vandals, neither of which was relevant in this case. PHYSICIAN/PATIENT 29-2-8228 Joseph Racanelli v. Vincent Cimmino, M.D., et al., App. Div. (6 pp.) The trial court’s sua sponte entry of a liability judgment against defendant was improvidently granted, since the evidence revealed questions sufficient that reasonable minds could differ as to defendant’s liability and the issue should have been submitted to a jury. PUBLIC ASSISTANCE — HOME ENERGY ASSISTANCE PLAN 45-2-8229 In the Matter of Kevin Cannon, App. Div. (4 pp.) Division of Family Development correctly denied applicant funds from the Home Energy Assistance Plan to extend heating system to second floor of his house, since the plan’s regulations plainly limit HEA funds disbursement to “furnace repair” and the furnace in applicant’s home functioned perfectly, despite the fact that the heat did not adequately reach the second level . PUBLIC EMPLOYEES 33-2-8230 In the Matter of William Pikolycky, App. Div. (4 pp.) Where the Department of Military and Veterans’ Affairs abolished petitioner’s position as Executive Assistant II at the New Jersey Veterans’ Memorial Home and demoted him in lieu of layoff to Executive Assistant IV in the department’s Trenton offices, the court properly upheld the department’s action since there was no evidence to support petitioner’s allegation that the action was motivated by a political conspiracy against him, or by any other motive other than a proper discretionary response to budget cuts. 33-2-8231 Piscataway Twp. Bd. of Educ. v. Piscataway Twp. Educ. Ass’n, et al., App. Div. (4 pp.) The arbitrator exceeded his authority in requiring the board of education to reemploy an improperly disciplined but untenured custodian in a different contract year, despite the expiration of the one-year term for which he had been employed, and the judge correctly limited the custodian’s recovery to back pay. REAL ESTATE 34-2-8232 Walter F. Bittner, et al. v. Michael Strizki, et al., App. Div. (15 pp.) In a suit arising from adjoining landowners’ consent order to construct drainage swale on defendant’s property, the trial judge’s finding that defendant violated the consent order is based on substantial evidence and is affirmed; however, there was insufficient evidence that defendant acted in bad faith or willfully, and the part of the order requiring defendant to pay counsel fees is stricken. TAXATION — CORRECTION OF ERRORS 35-2-8233 West Washington Realty v. Borough of Washington; East Washington Realty v. Borough of Washington, App. Div. (4 pp.) Tax Court correctly dismissed plaintiffs’ complaints brought under the correction of errors statute, N.J.S.A. 54:51A-7, since that statute is unavailable unless the correct assessment is readily inferable or subject to ready calculation, unlike these cases, where an exercise of judgment would have been required to calculate a modified assessment due to fire at the property. CRIMINAL LAW AND PROCEDURE 14-2-8234 State v. James M. Gagnon, App. Div. (4 pp.) There was insufficient evidence to support bus driver’s conviction of obstructing passage of other vehicles, and that conviction is reversed.

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