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Vol. 4 No. 22 Decisions Released Feb. 2, 1996 STATE COURT CASES CONDEMNATION 44-2-7757 State, by the Comm’r of Transp. v. Fred Weiswasser, et al., App. Div. (23 pp.) (1) Since the state may not require a condemnee to accept substitute real estate or its comparable value as compensation for condemned property, the trial judge did not err in prohibiting the state from introducing evidence that it had purchased land adjacent to defendants’ and had offered that land to defendants as partial compensation. (2) The loss of visibility to the remainder of defendant’s property after condemnation is compensable, and the trial judge correctly admitted evidence concerning damages attributable to such loss. [Approved for publication Feb. 2, 1996. Available online in NJ Full-Text Decisions. ] CONSTITUTIONAL LAW — ABORTION PROTESTS — INJUNCTIONS 10-2-7758 Options v. Michael Lawson, et al, App. Div. (15 pp.) In light of the health and safety interests involved in defendants’ protests at women’s health clinic, there was sufficient reason to issue and continue temporary and interlocutory injunctions to prevent obstruction of vehicles entering the driveway, to limit picketing, and to impose reasonable volume restraints; however, in light of the gravity of the restraints against expressive conduct, defendants should have been given a plenary hearing before the injunction was made permanent. [Approved for publication Feb. 2, 1996. Available online in NJ Full-Text Decisions.] FAMILY LAW — PATERNITY 20-2-7759 B.J.R. v. J.A., App. Div. (3 pp.) Although the trial judge correctly ruled that plaintiff’s paternity suit against defendant was not precluded by the entire controversy doctrine when it was not raised as an issue in plaintiff’s divorce from her husband, and although the judge implicitly found that defendant was the father of the child, since the judge failed to make an actual paternity adjudication, the matter is remanded. INSURANCE — VERBAL THRESHOLD 23-2-7760 Nancy Markiewitcz v. Franklin Stromberg, et al., App. Div. (5 pp.) While spasm is an objective form of evidence of injury, since plaintiff’s doctor’s findings of spasm did not show that it continued for any significant length of time, the findings were not sufficient to establish injury under the verbal threshold. 23-2-7761 Dianna L. Gilluly v. June M. Cavall, et al, App. Div. (4 pp.) Since plaintiff’s chiropractor failed to perform a test to confirm plaintiff’s injury, and did not opine that plaintiff was incapable of returning to work, plaintiff’s case did not meet the verbal threshold for a “Type 9 injury,” despite the fact that she did not work for more than four months following the accident. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7762 John P. Dennis v. Bd. of Review, etc., App. Div. (4 pp.) When an employer allegedly questioned the validity of employee’s back injury and an argument ensued, after which employee quit, he was properly denied benefits for leaving work without good cause attributable to the work. 25-2-7763 Bridget M. Airey v. Bd. of Review, App. Div. (5 pp.) Benefits were properly denied employee, since the record suggests that the employee was overly sensitive to her supervisor’s legitimate demands and that the employment environment did not nearly approach the “Dickensian” atmosphere which has been held to support a finding of good cause for leaving employment. 25-2-7764 Stuart E. Jerris v. Bd. of Review, etc., et al., App. Div. (4 pp.) Although plaintiff suffered depression and anxiety after a negative performance evaluation, the supervisor’s criticisms were not unreasonable, and since the plaintiff’s psychologist’s opinion — that the plaintiff’s stress was due to job conditions — was a net opinion, plaintiff was correctly held ineligible for benefits. 25-2-7765 Joseph J. Heumann v. Bd. of Review, et al., App. Div. (5 pp.) Since evidence showed that employee had not demonstrated that he had no other alternative, but “opted” to take his company’s offer of early retirement, he was properly denied unemployment compensation benefits. LANDLORD/TENANT — PUBLIC HOUSING 27-2-7766 Housing Auth. of the City of Newark v. Carol Raindrop, App. Div. (12 pp.) Housing authority’s noncompliance with federal requirements governing lease termination notices given in terminating defendant’s tenancy deprived the trial court of jurisdiction over the dispossess action, and the judgment for possession is vacated; therefore, the court need not reach the judge’s determination that New Jersey’s summary dispossess statute imposes strict liability on a tenant for her son’s drug-related criminal conduct. [Approved for publication Feb. 2, 1996. Available online in NJ Full-Text Documents.] NEGLIGENCE — CHARITABLE IMMUNITY 31-2-7767 Gloria Perone, et al. v. Church of the Holy Trinity, et al., App. Div. (4 pp.) Based on the charitable immunity doctrine, trial court properly granted cemetery summary judgment in case alleging negligent burial site maintenance and, since plaintiffs’ breach-of-contract claim merely is a recasting of their negligence assertions, dismissal of this claim was also proper. NEGLIGENCE — INDEPENDENT CONTRACTORS 31-2-7768 Dorivaldo Lopes, et al. v. Graca Rustic Contractors Inc, et al., App. Div. (4 pp.) Dismissal was proper on a roof worker’s suit for injuries he sustained when he fell through a paper-covered hole intended for a skylight against the commercial property’s owner, since the property owner reasonably could assume that the independent roofing contractor it hired was competent to install skylights, and the hiring of a competent contractor insulates the owner from responsibility for worker’s injuries. REAL ESTATE 34-2-7769 Thomas Swangin, et al v. James Thomas, et al., App. Div. (7 pp.) The trial court was correct in its conclusion that it was not reasonably foreseeable that homeowners’ contractor would rely upon surveyors sketch plan to determine the actual location of the end of sewer and water lines, since the sketch plan was prepared at a time when the homeowners did not even own the lot, and was drawn for an entirely different purpose. WORKERS’ COMPENSATION 39-2-7770 John Yaviliak v. Twin County Grocers Inc. v. Second Injury Fund, App. Div. (20 pp.) Based upon evidence presented the compensation judge properly found that, although temporary and permanent partial disability benefits were appropriate, the major portion of petitioner’s psychiatric disability was as a result of a predisposition not related to his employment, and he was not entitled to permanent total disability, and therefore not entitled to Second Injury Fund benefits. 39-2-7771 James Foga v. Burlington County Juvenile Detention Ctr., App. Div. (5 pp.) Where petitioner, a detention officer, fell and injured himself during the course of a basketball game between residents and detention officers, he was properly denied compensation benefits because injuries due to recreational or social activities are excluded from coverage, and petitioner has not shown that the basketball game falls under any of the exceptions to that rule. CRIMINAL LAW AND PROCEDURE 14-2-7772 State v. Tashan Johnson, App. Div. (10 pp.) Reversal is mandated because the judge (1) failed to instruct the jury on the mental state needed to sustain a conviction for attempted aggravated assault, (2) never cured his failure to instruct on the legal meaning of “attempt,” and (3) failed to instruct the jury on the need for a finding of unlawful purpose in possessing a weapon to sustain the charge of unlawful possession of a weapon, which permitted the jury to presume that it could convict on its own notion of “unlawfulness.” CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-2-7773 In the Matter of Registrant I.A., etc, App. Div. (4 pp.) It was error for the prosecutor to use the victim from registrant’s prior lewdness offense — which did not require registration under registration and community notification laws –in order to classify registrant as a high risk. CRIMINAL LAW AND PROCEDURE — REASONABLE DOUBT 14-2-7774 State v. Michael J. Malia, App. Div. (13 pp.) (1) Officer plainly had probable cause to believe that a crime had been committed, based on furtive movements of defendant and an alcohol odor emanating from vehicle’s interior, and, therefore, the officer was justified in asking the driver and defendant to exit the vehicle and in searching the vehicle. (2) Although the use of the words “moral certainty” in the charge did not dilute the defendant’s right to be found guilty beyond a reasonable doubt, the court disapproves of the use of those words in defining “reasonable doubt” and strongly suggests that trial courts not augment the model charge in any way. [Approved for publication Feb. 2, 1996. Available in NJ Full-Text Decisions.] Additional state opinion approved for publication: 39-2-5210 N.J. Mfrs. Ins. Co., etc. v. Joseph Oat Corp., etc., et al. [Available in NJ Full-Text Decisions.] FEDERAL COURT CASES COMMERCE 08-7-7775 Alcorp Agriservices Inc., etc. v. Agro Marketing Int’l. Ltd., et al., U.S. Dist. Ct. (23 pp.) In a suit for payment for fruit shipped, plaintiff’s motion for default judgment against defendant is granted, notwithstanding plaintiff’s settlement with the defendant’s assignee, since, although defendant filed an assignment for the benefit of its creditors, it could not properly assign the fruit sale proceeds stemming from its contract with plaintiff because it held those proceeds in a fiduciary capacity for the plaintiff’s benefit. INSURANCE 23-7-7776 M.A. Aziz Agency, et al. v. Atl. Mut. Ins. Co., et al., U.S. Dist. Ct. (12 pp.) Dismissal is required of insurance agent’s claims against New Jersey insurance commissioner and state Department of Insurance — in a suit alleging wrongful termination from the Producer Assignment Program — since a federal cause of action cannot be maintained against either a state or its agencies without its express consent, which is lacking here, and the agent’s argument that the New Jersey Tort Claims Act expressly waives sovereign immunity is without merit. PRODUCT LIABILITY 32-7-7777 Peter DePalma, et al. v. Rentcor, et al., U.S. Dist. Ct. (5 pp.) In third-party indemnification action against backhoe manufacturer by company that rented the backhoe to plaintiff — who was injured in a tip-over accident — summary judgment cannot be granted, since there are disputed issues of fact as to whether manufacturer affixed a warning sticker to the backhoe, and whether warnings given were inadequate. REAL ESTATE — LOAN DEFAULTS — RENT RECEIVERS 34-7-7778 Greater N.Y. Sav. Bank v. Plaza 12 Assocs., etc, et al., U.S. Dist. Ct. (4 pp.) Lender’s motion for appointment of a rent receiver is granted, not simply because there was a contractual provision for such appointment upon mortgage default — since such provisions have been held to usurp judicial function — but because the record shows that the property’s taxes and sewer charges are not being paid, and equity dictates that such appointment is necessary for the mortgagee’s protection. CRIMINAL LAW — R.I.C.O. — CIVIL FORFEITURE 14-7-7779 U.S.A. v. One (1) 1989 Chevrolet Silverado 2500, Pick-Up Truck, etc, U.S. Dist. Ct. (6 pp.) Where petitioner made no effort to acknowledge his ownership of the vehicle to be forfeited, or to join in the action until one year and four months after it is clear that he had notice of the forfeiture proceeding, his motion to be joined in the action as true owner of the vehicle is denied.

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