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Vol. 4, No. 200 — OCTOBER 17, 1996 STATE COURT CASES EDUCATION — TEACHERS — CHILD ABUSE 16-2-0280 In the Matter of J.M., App. Div. (3 pp.) While teacher — who was recovering from knee surgery and whose knee was bumped by student, causing excruciating pain — may have been guilty of assault when he grabbed the student around the neck, and pushed him backward, scolding him and causing only superficial injury to the student, teacher was wrongly determined to be guilty of child abuse, and determination is reversed. FAMILY LAW 20-2-0281 Kristine M. Richards v. Paul Richards, App. Div. (5 pp.) Although defendant lost his job, since he continued to live a high lifestyle, borrowing money from relatives, judge properly determined that defendant had not shown a change of circumstances justifying termination or modification of his support obligations. INSURANCE — UNDERINSURED MOTORIST BENEFITS 23-2-0282 Margaret Powell, etc. v. The Ohio Casualty Ins. Co., App. Div. (3 pp.) Trial court correctly held that insurer waived any defects in the service of process when it complied with an order entered in the matter by appointing an arbitrator and paying the costs imposed upon it by that order. INSURANCE — VERBAL THRESHOLD 23-2-0283 Karen Flick v. Emanuel Tocco, App. Div. (7 pp.) The plaintiff s medical reports of spasm over three years as well as spondylosis provided objective medical evidence from which a jury could reasonably find that plaintiff suffered a type 6, 7 or 8 injury as a result of the accident and that such permanent injury had a serious impact upon her life, and order dismissing case is reversed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION — TEACHERS 25-2-0284 Northfield City Bd. of Education v. Bd. of Review and Mary Smith, App. Div. (4 pp.) Teacher was entitled to unemployment during the summer recess because her full-time position was terminated in June, and, although she accepted offer to start part- time employment in fall at reduced salary and with fewer benefits, this did not constitute the type of employment which precluded benefits under N.J.S.A. 43:21-4(g)(1). 25-2-0285 Northfield City Bd. of Education v. Bd. of Review and Karen Schwanzer, App. Div. (5 pp.) Teacher was entitled to unemployment during the summer recess because her full-time position was terminated in June, and, although she accepted offer to start part-time employment in fall at reduced salary and with fewer benefits, this did not constitute the type of employment which precluded benefits under N.J.S.A. 43:21-4(g)(1). LABOR AND EMPLOYMENT — UNEMPLOYMENT BENEFITS — DISABILITY 25-2-0286 Lucy Cassiere v. Bd. of Review, App. Div. (5 pp.) Having concluded that appellant was aware of the denial of her unemployment claim and that she had not chosen to file an appeal, the Appeal Tribunal properly determined that appellant was not eligible for disability benefits under N.J.S.A. 43:21-4(f)(1) for injuries sustained after she had become voluntarily unemployed. LAND USE 26-2-0287 Gardner Oldsmobile Cadillac Pontiac, Inc. v. Planning Bd. of the Twp. of Stafford, et al., App. Div. (3 pp.) Although recitals of testimony do not ordinarily satisfy a planning board s statutory responsibility to make findings of fact, and although the board s findings here do little more than recite extensive testimony by defendant oil company s witnesses, under the unique circumstances of this case, the court appropriately categorized the recitals as findings of fact and conclusions thereon which supported the planning board s granting of site plan approval and bulk variances. PHYSICIAN/PATIENT 29-2-0288 Dora Nuzzolese, et al. v. Rafael Ramos, M.D., App. Div. (7 pp.) Judge did not err in proscribing plaintiffs use of the opinion evidence of experts consulted by the defendant in the absence of exceptional circumstances. CRIMINAL LAW AND PROCEDURE — DNA 14-2-0289 State v. Morey Marcus, App. Div. (34 pp.) (1) DNA analysis is generally accepted within the scientific community and the State established a proper foundation for the admission of its experts DNA analysis of bloodstains relevant to this case. (2) Trial court did not err in responding to jury s inquiry regarding the applicability of the death penalty to the case, nor did the State violate defendant s right to a speedy trial. [Approved for publication Oct. 17, 1996.] FEDERAL COURT CASES INSURANCE — TRANSFER OF VENUE 23-7-0290 The Market Transition Facility of N.J. v. David Twena, et al.,U.S. Dist. Ct. (14 pp.) In a declaratory judgment action — wherein insurer alleges that defendant insured fraudulently misrepresented his status as a bona fide resident of N.J. — since a substantial part of the events or omissions giving rise to the claim occurred in N.J., defendant s motion to transfer pursuant to 28 U.S.C. Section 1406(a) is denied, and, since a transfer would merely switch inconvenience factors from defendant to plaintiff, the transfer will not be allowed under Section 1404(a). [Filed Oct. 8, 1996.] JURISDICTION — REMAND 24-7-0291 Wayne DeCastro, et al. v. AWACS, Inc., etc., U.S. Dist. Ct. (15 pp.) A magistrate judge may order a remand to state court of a case removed to federal court and the Clerk s mailing of the certified copy of the magistrate s judge s order of remand to the state court deprives the federal court of jurisdiction to review the remand order. [Filed Oct. 10, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions NEXT WEEK IN THE … Class-action lawyers accuse a N.J.law firm of aiding in a securities scheme by a leasing and finance company that allegedly defrauded investors. The firm had vouched to the SEC that the company was a bonafide enterprise. See page 1 of the Oct. 21 Law Journal.

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