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Vol. 3 No. 235 Decisions Released Dec. 13, 1995 STATE COURT CASES ADMINISTRATIVE LAW — FIREARMS 01-2-7311 In the Matter of Thomas Piteo, App. Div. (4 pp.) Order affirming the denial of applicant’s request for a firearms purchaser identification card is reversed and remanded to resolve whether or not he pled guilty to a N.Y. charge equivalent to drug possession. ATTORNEY/CLIENT — ENTIRE CONTROVERSY DOCTRINE 04-2-7312 Paul Neubauer, et al. v. Timothy Tuttle, Esq. v. Robert J. Mancinelli, Esq., et al., App. Div. (6 pp.) Since investors’ suit to recover deposit monies from condominium developer (although never adudicated on the merits due to developer’s bankruptcy) was inextricably intertwined with allegations against their attorney for dereliction in that transaction, their failure to join him in the earlier suit defeats this malpractice case under the entire controversy doctrine. CONTRACTS 11-2-7313 Maurizio Bertoli v. Raymond Chera, et al., App. Div. (6 pp.) In suit for balance due on a contract, judgment for defendant on counterclaim for damages was improper, since defendants should first have been compelled to pay the contract price. DEBTOR/CREDITOR 15-2-7314 Frank H. T. Ngo, et al. v. Marx Bros. Meats, Inc., et al., App. Div. (5 pp.) Judge properly dismissed plaintiffs’ action against individual defendants to recover loans they made to defendant corporations, since the facts did not warrant piercing of the corporate veil nor prove plaintiffs’ allegation that the corporations were the “alter egos” of the individuals. FAMILY LAW 20-2-7315 Edna Margarita Madrigal v. Fernando Enrique Madrigal, App. Div. (10 pp.) Judge properly evaluated the evidence and, applying the Holder criteria, found that wife’s reason for wanting to relocate to Florida with the children was bona fide, the “least detrimental alternative” and in the best interests of the children. 20-2-7316 Maria Karounos, etc. v. Peter Karounos, et al., App. Div. (6 pp.) Although the judge should not have appointed a third-party facilitator or awarded fees without specific reference to the authority under which that action was taken, the appointment of a “special counsellor” in this case is affirmed in view of the extraordinary and unique circumstances, including defendant’s mental condition. INSURANCE — VERBAL THRESHOLD 23-2-7317 Francis Dwyer, et al. v. Salvatore Alini, Jr., App. Div. (4 pp.) Summary judgment was properly granted to the defense, since there was a discrepancy in the testimony regarding plaintiff’s condition after a prior accident, and the medical reports did not contain the required comparative analysis of plaintiff’s condition after each accident. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7318 Dual Control Auto Driving School v. N.J. Dept. of Labor, App. Div. (3 pp.) The court affirmed the decision of the Commissioner of Labor — who ruled that driving instructors for customers of the plaintiff driving school are employees and not independent contractors for the purposes of the unemployment compensation law — since school failed to satisfy all three prongs of the “ABC” test for independent contractor status. MUNICIPAL LAW 30-2-7319 Twp. of South Orange Village, etc. v. Hartz Maplewood, Inc., etc., et al., App. Div. (6 pp.) Where a settlement agreement was entered into in land use litigation, which provided that the owner of a condominium complex located in Maplewood, but contiguous to lands the owner had in South Orange, would pay South Orange a sum each year equal to the salaries of a policeman and firefighter, because South Orange was concerned about the increased dangers of fire and crime to the surrounding South Orange residents posed by the condominium, such provision was void ab initio, and was properly invalidated. NEGLIGENCE — LATE NOTICE OF CLAIM 31-2-7320 Lori Nuzzi v. Waterford Owners Corp. v. Twp. of Cherry Hill, App. Div. (6 pp.) The judge properly denied plaintiff’s application for late filing of her notice of claim, since the late filing was not excused by her counsel’s exercise of reasonable diligence in trying to learn who owned or controlled the street on which she was injured in a fall into an open manhole, and, her appeal of the denial is untimely. REAL ESTATE — FORECLOSURE — DEFICIENCY JUDGMENTS 34-2-7321 National Westminster Bank, NJ, etc., et al. v. Richard M. Lella, et al., (14 pp.) Where Former mortgagor challenged as untimely a mortgage bank’s deficiency judgment against him, such challenge is denied, since the protection of the limitations period does not apply in cases, as here, where a commercial loan is made to build a one-family house in which the owner will not reside. TAXATION 35-5-7322 Salt and Light Company, Inc. v. Mt. Holly Twp., Tax Ct. (31 pp.) Municipality wrongfully revoked tax-exempt status of seven properties owned by taxpayer, since they are used for charitable purposes — to provide temporary housing and counselling services for the homeless — and the receipt of government support on a fee-for-service basis does not vitiate the charitable use under the facts of this case. 35-2-7323 Frederick Heinemeyer, et al. v. Twp. of Scotch Plains, App. Div. (20 pp.) (1) Tax Court’s modification of county tax board’s assessment — ordering that a greater amount of depreciation be used — is reversed, since the taxpayers failed to overcome the presumption of correctness attached to the board’s assessment, and (2) Tax Court’s denial of relief to taxpayers — for overassessment based on mistaken acreage — is also reversed, since this mistake clearly falls within the Correction of Errors statute, and relief for three tax years is ordered under that law. CRIMINAL LAW AND PROCEDURE — VICTIM-IMPACT STATEMENTS 14-3-7324 State v. Rasheed Muhammad, Law Div. (17 pp.) The recently-adopted victim-impact statement statute, N.J.S.A. 2C:11-3c(6) — which allows families of murder victims to testify as to the victim’s character and the impact of the murder on the victim’s family in the sentencing phase of a capital case — violates constitutional due process guarantees and is therefore unenforceable. [Available online in NJ Full-Text Decisions.] 14-1-7325 State v. Leo R. Jones, Supreme Ct. (22 pp.) Under the totality of circumstances in this case, the police officers acted in an objectively reasonable manner under the federal and state constitutions when they followed a fleeing subject of a valid arrest warrant into his apartment, despite the fact that the officers did not know the nature of the offense underlying the warrant. [Approved for Publication. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASE INSURANCE — HEALTH — EXPERIMENTAL PROCEDURES 23-7-7326 Joon Bahng, et al. v. Prudential Property & Casualty Ins. Co., U.S. Dist. Ct. (43 pp.) Insurance company’s determination that the proposed high dose chemotherapy/bone marrow transplant was experimental or investigational was not arbitrary or capricious, and therefore coverage under plaintiff’s group health insurance policy was properly denied, and summary judgment is granted to insurer. Editor’s Note: (** Changes have been made in McCarter & English document***) Several cases were misnumbered in yesterday’s Alert. DDS No. 23-2-7399 should have been numbered 23-2-7299. All subsequent cases, 7400 through 7410, should have been numbered 7300 through 7310. Today’s cases pick up at 7311. Please note the corrections when ordering. We apologize for the error.

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