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Vol. 4 No. 40 Decisions Released Feb. 29, 1996 STATE COURT CASES AGENCY AND PARTNERSHIP — BANKRUPTCY 02-2-8019 Albert D’Angelo, etc. v. Robert R. Hewitt, App. Div. (10 pp.) The trial judge correctly granted summary judgment to plaintiff dissolving his partnership with defendant, since N.J.S.A. 42:1-31(5) provided that the partnership was dissolved as a matter of law by the defendant’s bankruptcy, without regard to the partnership’s terms. ATTORNEYS — REFERRAL FEES 04-2-8020 Ravich, Koster, Tobin, et al. v. Elliot H. Gourvitz, App. Div. (19 pp. — includes dissent) The trial judge erred in finding that there was no legal authority to allow the payment of referral fees in matrimonial actions. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] CIVIL RIGHTS — MUNICIPAL LAW 46-1-8021 David Rivkin, et al. v. Dover Twp. Rent Leveling Bd., Supreme Ct. (45 pp.) Absent egregious misconduct that shocks the conscience in the sense of violating civilized norms of governance, or invidious discrimination on the part of a board member or board, so long as the state provides a plain, adequate and timely remedy to redress irregularities in the proceedings, a party aggrieved by the determinations of a municipal rent leveling board does not have a claim for relief under the federal Civil Rights Act, 42 U.S.C. 1983. [ Companion case to 46-1-8022 below. Approved for Publication. Available online in N.J. Full-Text Decisions.] CIVIL RIGHTS — TAXATION 46-1-8022 Gen. Motors Corp. v. City of Linden, et al., Supreme Ct. (24 pp.) State courts are prohibited from providing relief under 42 U.S.C. 1983 if state law provides an adequate remedy for relief from unconstitutional tax assessments; because New Jersey provides an adequate remedy, General Motors cannot maintain a Section 1983 action against the municipality regarding GM’s property tax assessments. [Companion case to 46-1-8021 above. Approved for Publication Available online in N.J. Full-Text Decisions.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-8023 L.A.T. v. S.T., App. Div. (2 pp.) When a dispute arose during parties’ separation process about the husband’s right to return to the marital premises to remove his belongings, after which the husband supposedly agreed not to return to the home to remove further items, a finding of harassment and entry of restraining order was appropriate when husband called the wife and stated he would “take anything (he) wanted and do anything (he) wanted, and that, if the wife got in the way, (he’d) take care of her, too.” FAMILY LAW — PENSIONS — PUBLIC EMPLOYEES 20-2-8024 Roberta Carol, etc. v. Norman Poppel, App. Div. (8 pp.) Where parties had agreed in their divorce judgment to an equal division of their public employee pensions under the mutually mistaken assumption that the Division of Pensions would enforce a qualified domestic relations order, and where wife proceeded with due diligence in moving for relief under R. 4:50 when the mistake was realized, judge properly granted her such relief. LANDLORD/TENANT — SECURITY DEPOSITS 27-2-8025 J.C. Mitchell v. First Real Estate Equities Inc., etc., App. Div. (6 pp.) Reversal is required of judge’s award of double damages to tenant — for landlord’s failure to refund the balance of tenant’s security deposit pursuant to N.J.S.A. 46:8-21.1 — since the judge used the wrong date for the “termination” of the lease for purposes of calculating the statutory 30-day period within which the refund had to be made. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] REAL ESTATE — CONDOMINIUMS 34-2-8026 Josef Billig, et al. v. Buckingham Towers Condominium Assn. I Inc., et al., App. Div. (17 pp.) A condominium association is subject to the rule of reasonableness in considering owners’ requests to make changes within their own units that affect, but not materially, significantly, or substantially, the common elements, and, since the association here acted unreasonably in withholding permission from the unit owners to proceed with their heating and air conditioning upgrade, the contrary judgment below is reversed. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] REAL ESTATE — FORECLOSURE 34-2-8027 Meridian Bank, a Corp. v. Am. Silent Majority Inc., et al., App. Div. (3 pp.) Since there was a material issue of fact presented by the mortgagor’s proofs as to whether there was an actual default in a Dec. 1, 1990, payment that commenced its delinquency, summary judgment striking its answer should not have been entered, and a final judgment of foreclosure is reversed. SECURITIES 50-2-8028 Leonard B. Greer, et al. v. N.J. Bureau of Securities, et al., App. Div. (22 pp.) In connection with the Bureau’s investigation of possible securities violations, (1) subpoenas issued against plaintiffs are enforceable without modification, and, (2) since the bureau did not willfully violate a sealing order, sanctions are reversed. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Tect Decisions.] TAXATION 35-5-8029 Rockaway 80 Assocs. v. Rockaway Twp., Tax Ct. (10 pp.) An added assessment imposed for a freeze year with respect to improvements completed after Oct.1 preceding the freeze year is not subject to the Freeze Act, which applies only to an assessment covered by the base year judgment. [Approved for publication.] 35-5-8030 Rainhold Holding Co. v. Freehold Twp., Tax Ct. (8 pp.) County tax board judgment that “sustained without prejudice” the 1993 assessment on the subject property was not a judgment involving valuation that carried the benefit of the Freeze Act for the 1995 tax year; the Freeze Act does not apply to a judgment that does not reflect value considerations. [Approved for publication. Available online in N.J. Full-Text Decisions.] 35-5-8031 Pipquarryco Inc. v. Hamburg Borough, Tax Ct. (6 pp.) Where attorney for taxpayer submitted an appraisal one day before the county tax board hearing and appeared at the hearing with the appraiser, requesting an adjournment, the county board improperly dismissed the appeal for failure to prosecute; taxpayer’s conduct was not deliberate and contemptuous, which would warrant a dismissal. [Approved for publication. Available online in N.J. Full-Text Decisions.] 35-5-8032 Bllum Ltd. Partnership v. Bloomfield Twp., Tax Ct. (4 pp.) The grounds for dismissal of a complaint set forth in N.J.S.A. 54:51A-1(c) are not exclusive, and defendant’s motion to dismiss taxpayer’s complaint for failure to pay taxes at the county board level is granted. [Approved for publication. Available online in N.J. Full-Text Decisions.] 35-2-8033 Badische Corp. (BASF) v. Town of Kearny, App. Div. (16 pp.) Tax Court’s review of assessment of plaintiff’s industrial property — on which its nonoperating chemical plant is located — is remanded for reconsideration of the court’s refusal to consider economic obsolescence and environmental contamination adjustments as valuation factors, and submission of proofs on allocating asbestos removal costs. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] TORTS — SEXUAL ABUSE — ANONYMOUS PLEADING 36-2-8034 T.S.R. v. J.C., et al.; H.W.H. Jr., et al. v. P.C.U.S.A., et al., App. Div. (29 pp. — includes dissent) Victim protection was the Legislature’s overriding concern in enacting N.J.S.A. 2A:61B-1, which requires that parties’ real names not be used in sexual abuse matters under the statute; therefore the alleged perpetrators are not entitled to anonymity under the statute, and the judge’s decision denying defendants such anonymity is affirmed. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] WORKERS’ COMPENSATION — SPECIAL EMPLOYEES 39-2-8035 Joan P. Kelly v. Geriatric and Med. Svcs. Inc., etc., App. Div. (13 pp.) The judge properly dismissed nurse’s slip and fall personal injury/negligence complaint against convalescent center, finding as a matter of law that, although she was employed by a nursing staffing service who sent her to the center, she was a “special employee” of the center under the Workers’ Compensation Act, which barred her from bringing the tort action against the center. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE — “DRUG KINGPIN” STATUTE 14-2-8036 State v. Steven Kadonsky, App. Div. (9 pp.) Defendant’s conviction under the “drug kingpin”statute — which deals with leaders of narcotics trafficking networks — is affirmed, and there is no merit to his contention that the act and its penalties are unconstitutional when applied to marijuana offenses, as opposed to cocaine and heroin offenses. [Approved for publication Feb. 29, 1996. Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES PRODUCT LIABILITY 32-7-8037 Edward Babilot, et al. v. Textron Inc., U.S. Dist. Ct. (5 pp.) In a case where plaintiff, a golf course groundskeeper, was injured when he fell out of a golf cart and sued defendant for negligent design of the cart’s handholds, denial is required of defendant’s motion for leave to file third party complaint against the golf course for spoilation of evidence as a result of the course’s disposing of the cart, since plaintiff’s case centers on a design defect, not a mechanical malfunction of this particular cart, and the availability of actual photographs of the cart’s handholds, as well as the ability to test other identical handholds, will enable defendant to prepare its case; the disposal of the cart has not prejudiced defendant, and the proposed amendment would be futile. CRIMINAL LAW AND PROCEDURE — VICTIMS’ RESTITUTION 14-8-8038 U.S.A. v. Richard Joseph Kones, Third Cir. (9 pp.) The district court correctly determined that it had no power to order restitution to appellant, because she was not a “victim” of defendant’s mail and insurance fraud scheme within the meaning of 18 U.S.C. 3663(a); the conduct which appellant alleges caused her harm — defendant’s provision of faulty medical services � is not conduct proscribed by the mail fraud statute, even though appellant alleges that the defendant’s malpractice contributed to the scheme by prolonging her treatment so that he could submit additional fraudulent claims for her.[Available online in 3rd Ciruit - Appellate Court.]

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