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Vol. 3 No. 248 Decisions Released Jan. 3, 1996 STATE COURT CASES ADMINISTRATIVE LAW — STATE POLICE 01-2-7462 Div. of State Police v. Mark Jiras, App. Div. (9 pp.) While state trooper does not dispute that he wrongfully manhandled a prisoner he was directed to transport, he is entitled to reconsideration of the penalty providing that he be terminated, since the record is inadequate to sustain the administrative law judge’s appraisal of the trooper’s psyche and suitability for continued service in light of his otherwise unblemished 15-year record. AUTOMOBILES — LEMON LAW 05-2-7463 Olga De Jesus v. B.L.C. Motor Car Corp., etc., App. Div. (3 pp.) Used-car dealer was correctly required to take back a defective vehicle and refund the purchase price to plaintiff; since the Lemon Law does not apply to used cars, dealer’s contentions that plaintiff failed to send notices required by that law are without merit. FAMILY LAW 20-2-7464 Regina Bailey v. Lawrence R. Bailey, Jr., App. Div. (5 pp.) Where divorce judgment provided that husband had to contribute to mortgage and taxes on the marital premises either until the emancipation of the children or until they were attending college and not living at home, he was entitled to cease such payments when the son came to live with him and the daughter went away to college, and the judge erred in ordering him to pay all mortgage arrearages and back taxes on the marital residence. 20-2-7465 Demetrius A. Young v. Thomas H. Young, App. Div. (6 pp.) The trial judge correctly denied husband’s motion to enforce a settlement agreement negotiated by the parties’ attorneys, since wife refused to sign the consent order presented to her, and she was not bound by her attorney’s assent in negotiations unless he had actual authority to so bind her; on remand, the husband is entitled to a hearing on the issue of whether such actual authority existed. LABOR AND EMPLOYMENT — HANDICAP DISCRIMINATION 25-2-7466 J. Raymond Malloy v. Johnson & Johnson Consumer Products, Inc., et al., App. Div. (13 pp.) (1) Jury properly concluded that plaintiff’s depression was a handicap within the meaning of the Law Against Discrimination and that such handicap was a determinative factor in his firing by his supervisor, justifying an award for lost wages and benefits, and the trial judge was correct in denying defendants’ motion for judgment notwithstanding the verdict. (2) Since there was no evidence that employer ratified the wrongful act of plaintiff’s supervisor, who was not an employee high in authority, denial of punitive damages against employer was also correct, notwithstanding the fact that employer provided a defense for the supervisor. MUNICIPAL LAW 30-2-7467 Joan Guidi v. City Of Atlantic City, App. Div. (4 pp.) Where plaintiff, who was charged with nuisance for feeding pigeons, challenged the ordinance, motion judge should not have granted summary judgment to defendant, since the ordinance is vague and overbroad and does not point to objective facts that would lead a reasonable person to realize that his or her conduct was a violation of the ordinance, and the feeding of pigeons and other birds in a seaside community is a common enough problem that this conduct, if undesirable, should be specifically prohibited by ordinance. [Approved for publication Jan. 3, 1995. Available online in NJ Full-Text Decisions.] NEGLIGENCE 31-2-7468 David Hernandez v. Ford Motor Co., et al., App. Div. (3 pp.) In a case where plaintiff was injured when he jumped off a loading dock at defendant’s warehouse, judge correctly granted summary judgment to the defendant, since defendant had responsibly blocked off the staircase nearest the plaintiff due to ice forming from a water main break, and there were other steps a bit further away that plaintiff could have used but chose not to. PUBLIC RECORDS — PRIVILEGE 52-2-7469 Hernan Hernandez, Jr., etc., et al. v. Twp. of North Bergen, et al., App. Div. (5 pp.) Since a claim of privilege requires a judge to balance the competing interests involved, and articulation of the reasons for disclosure or non-disclosure is necessary for a fair resolution of the case, the judge should not have ordered defendants to turn over an internal investigation report regarding plaintiff’s decedent without making findings of fact and conclusions of law. CRIMINAL LAW AND PROCEDURE 14-2-7470 State v. Willie Arroyo, App. Div. (7 pp.) Since the trial judge failed to adequately explain to the jury the relationship between self-defense and the intent element of the second-degree weapons charge, defendant’s conviction on that charge is reversed. CRIMINAL LAW AND PROCEDURE — FORFEITURE OF WEAPONS 14-2-7471 In the Matter of the Forfeiture of Certain Weapons Belonging to Jordan Bozinovski, App. Div. (3 pp.) The evidence was more than ample to support trial judge’s factual findings and conclusion that defendant’s continued possession of firearms or firearms purchaser identification card would not be in the best interest of public safety, health or welfare as a result of two incidents of domestic violence, notwithstanding the fact that both instances may have been triggered by defendant’s wife and neither involved the use of firearms. FEDERAL COURT CASES BANKRUPTCY — FRANCHISES 42-6-7472 In re: Egyptian Bros. Donut, Inc., Debtor; In re: Alfajr Corp., Debtor, U.S. Bankruptcy Ct. (13 pp.) Neither the debtors nor their trustees can assume or revive franchise agreements or leases which were terminated pre-petition because of material defaults, and the debtors’ argument that the terminations should be avoided as “transfers” is without merit. CIVIL RIGHTS — CORRECTIONS 46-7-7473 Larry Stuart Sandler v. Audry Della Russo, et al., U.S. Dist. Ct. (7 pp.) Prisoner’s claim that he was denied adequate medical care — alleging that injuries he suffered in a suicide attempt while incarcerated were as a direct result of prison doctor’s decision to stop all medication — is dismissed, since prisoner has only shown that he disagreed with the doctor’s decision to discontinue the medication, not that the doctor acted with the “deliberate indifference” required to prove deprivation of medical treatment. CIVIL RIGHTS — CRIMINAL 46-7-7474 Ruben Benitez v. Jersey City Police Dept., et al., U.S. Dist. Ct. (7 pp.) County — relying on a case dealing with governmental “negligence”– has failed to meet its burden to persuade the court to dismiss plaintiff’s case, since plaintiff does not allege negligence but governmental abuse of power and deprivation of protected liberty interests when he was denied the right to make a phone call and obtain a lawyer upon his arrest. INSURANCE — SPILL ACT COVERAGE 23-7-7475 Caldwell Trucking PRP Group v. Spaulding Composites Co., Inc., et al., U.S. Dist. Ct. (9 pp.) Where plaintiff seeks contribution from defendant and its insurers for past and future toxic site clean up costs, and court had previously dismissed the complaint against other insurers because the Spill Act does not authorize a direct action against such insurers, motion of N.J. Property Liability Insurance Guaranty Association, as conservator for one of the insurers in liquidation, is granted by applying the law of the case, and the court need not reach its other arguments. (For prior opinion, see DDS No. 23-7-6195 in the July 19, 1995 Alert.)

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