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Vol. 4 No. 44 Decisions Released March 6, 1996 STATE COURT CASES ADMINISTRATIVE LAW — PLUMBERS — COSTS OF SUIT 01-2-8082 Deborah T. Poritz, etc., et al. v. Arnold Stang, etc., App. Div. (6 pp.) After plumber was found to have engaged in the unlicensed practice of plumbing and was fined, he was also properly assessed “costs” which included investigative fees, as such fees are within the broad, inclusive interpretation of N.J.S.A. 45:1-25. [Approved for publication March 6, 1996. Available online in N.J. Full-Text Decisions. ] ATTORNEYS — PARTNERSHIP AGREEMENTS — ARBITRATION 04-1-8083 Stanley Weiss, et al. v. Carpenter, Bennett & Morrissey, et al., Supreme Ct. (41 pp.) Provisions in a law firm’s partnership agreement that withhold the right to receive distribution of a partner’s capital account only from a partner who withdrew from the firm for any reason other than death, permanent disability, attainment of age 65, or appointment to the judiciary, violate RPC 5.6; arbitrator’s decision that those provisions are, therefore, unenforceable, is affirmed. [Companion case to 04-1-8084 below. Approved for Publication. Available online in N.J. Full-Text Decisions. ] 04-1-8084 Garrett M. Heher v. Smith, Stratton, Wise, et al., Supreme Ct. (20 pp.) An arbitration provision in a law firm agreement is enforceable even if the dispute in question implicates the clear mandate of public policy underlying RPC 5.6, as long as the arbitrator’s decision is subjected to an enhanced level of judicial review in order to afford appropriate relief from an arbitration award which obviously violates a clear mandate of public policy. [Companion case to 04-1-8083 above. Approved for Publication. Available online in N.J. Full-Text Decisions. ] DEBTOR/CREDITOR 15-2-8085 Rinaldi Transp. Co., Inc. v. Rae F. Rinaldi, App. Div. (4 pp.) Although trial judge was correct when she noted that a guaranty is discharged if the underlying debt is paid by the debtor, there is a material issue of fact as to who paid off the debt in this case, such that the guaranty might not be discharged, and the matter is remanded. EDUCATION — DISABLED PERSONS 16-2-8086 R.W. v. N.J. Div. of Developmental Disabilities, App. Div. (13 pp.) The record does not support the director’s decision that developmentally disabled petitioner’s placement in small residential unit of North Princeton Developmental Center is appropriate, and the director was unduly influenced by budgetary considerations, therefore the state is ordered to continue to pay for petitioner’s current placement at Bancroft, where the program maximizes his potential in the least restrictive environment. FAMILY LAW 20-2-8087 Arthur J. Russo v. Deborah N. Russo, App. Div. (3 pp.) Although the court affirms the trial judge’s valuation of the plaintiff’s law practice, it reverses and remands the judge’s allocation of responsibility for certain loans incurred by plaintiff, since the record is inadequate to support the judge’s conclusions as to the amounts and existence of the loans or the purposes to which they were put. FAMILY LAW — REHABILITATIVE ALIMONY 20-2-8088 Ann Weimer, etc. v. Richard Weimer, App. Div. (2 pp.) Where plaintiff could not obtain her nursing degree within the two-year period contemplated by the parties at the time of divorce due to circumstances beyond her control, an extension of rehabilitative alimony was proper. 20-2-8089 Sandra A. Milner v. Edward S. Milner, App. Div. (9 pp.) Since the wife, while receiving rehabilitative alimony, tried but was unsuccessful in obtaining the kind of employment required for her economic self-sufficiency which the parties anticipated at the time of divorce, she properly established a change of circumstances which would justify the continuation of the alimony beyond the original termination date, and, since there is no reasonable likelihood that plaintiff will be able to achieve such self-sufficiency, conversion of her rehabilitative alimony to permanent alimony is justified. [Approved for publication March 6, 1996. Available online in N.J. Full-Text Decisions. ] FAMILY LAW — DOMESTIC VIOLENCE 20-4-8090 Tara Carfagno v. Kevin Carfagno, Chancery Div. (16 pp.) The court sets forth a framework of legal analysis that may be followed when faced with a defendant’s application to dissolve a final restraining order issued under the Domestic Violence Act, and, after considering the victim’s lack of consent, the victim’s subjective and objective continuing fear of defendant, and the fact that defendant twice previously violated the restraining order, the court denies defendant’s request to dissolve the order. [Approved for publication March 6, 1996. Available online in N.J. Full-Text Decisions. ] HEALTH — COMMITMENT 22-2-8091 In the Matter of the Commitment of J.W., App. Div. (16 pp.) N.J.S.A. The trial judge erred in holding that N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.2 operate to exclude mentally ill persons — who are either incompetent to stand trial or not guilty by reason of insanity — from admission to community residences, and such discrimination may not take place without a careful, individualized consideration of the particular facts justifying their exclusion. [Approved for publication March 6, 1996. Available online in N.J. Full-Text Decisions. ] INSURANCE — P.I.P. — SUBROGATION 23-2-8092 Universal Underwriters Ins. Co., etc. v. Allstate Ins. Co., App. Div. (4 pp.) In subrogation action after an automobile accident, where tortfeasor’s liability carrier paid injured victim the full “per person” $15,000 policy limit, and victim’s PIP carrier then sought another $15,000 from liability carrier contending it was a “second claimant” with an independent reimbursement right, such an action is improper, and liability carrier should have been granted relief. PRODUCT LIABILITY 32-2-8093 Ercel Collins, et al. v. Graham Architectural Prods., etc., et al., App. Div. (6 pp.) Although it is undisputed that the window manufactured and installed by the defendants was not operating properly when it fell on plaintiff’s hands and injured her, plaintiffs failed to show that the window was in this condition at the time of its manufacture and/or installation, and the trial judge correctly concluded that their expert’s report holding the manufacturer liable was a net opinion. PUBLIC EMPLOYEES 33-2-8094 In the Matter of Virginia Harris, App. Div. (12 pp.) Cottage training supervisor at center for the developmentally disabled was improperly terminated, since the record does not contain sufficient credible evidence to support the factual determination that supervisor struck one of the residents, and the testimony of another resident, upon which the ALJ and the Merit System Board relied, was of marginal competence. PUBLIC EMPLOYEES — ACCIDENTAL DISABILITY BENEFITS 33-2-8095 Jeffrey W. Thorne v. The Bd. of Trustees, PERS, App. Div. (5 pp.) Former municipal environmental health coordinator was erroneously denied accidental disability benefits when he fell from a sandy embankment that gave way beneath him as he was conducting an on-site inspection in the course of his duties, since the enbankment’s collapse the requirement that the injury be caused by a totally unexpected and traumatic event, involving a “great rush of force or uncontrollable power.” CRIMINAL LAW AND PROCEDURE — EXCITED UTTERANCES 14-2-8096 State v. Jocelyn Reese; State v. Kevin Redd, App. Div. (7 pp.) Defendants’ convictions are affirmed, and their allegation that the judge erred in admitting excited utterances of eyewitnesses because the police officer summarized what the witnesses said, thereby tainting the evidence with his own bias, are without merit; N.J.R.E. 803(c)(2) does not require that excited utterances, in order to be admissible as hearsay rule exceptions, must be reported in the witnesses’ exact words. [Approved for publication March 6, 1996. Available online in N.J. Full-Text Decisions. ] Editor’s Note: The following supplements a case summarized in yesterday’s Alert: 31-2-8072 500 Brunswick Avenue Corp. v. Wells Fargo Alarm Svcs., et al.; Twin County Grocers v. Wells Fargo Alarm Svcs., et al., App. Div. (9 pp.) (1) Consumer Fraud Act claim by warehouse owner against fire alarm company was barred because commercial entities may not recover purely economic losses, essentially contractual in nature, through tort claims. (2) CFA claim against fire alarm company by third party that stored goods in warehouse pursuant to agreement with tenant was barred, because a violation of the act must be premised upon a representation to the person making the claim.

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