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Vol. 4 No. 128 – JULY 5, 1996 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — CONSTRUCTION 1-2-9487 Bill Williams v. Bureau of Homeowner Protection, App. Div. (11 pp.) State Division of Community Affairs commissioner’s decision requiring contractor to pay for a retaining wall to correct basement leakage is set aside because it was outside the scope of the arbitrated repairwork, which included only site grading and not wall construction; the commissioner had a duty to articulate factual findings as to why the original remediation plan would not suffice or at least be tried before undertaking the more costly retaining-wall project. EVIDENCE — PHYSICIAN/PATIENT — TORTS 19-2-9488 Nancy O’Connor v. Stephen D. Herring, App. Div. (4 pp.) N.J.R.E. 703 allows a chiropractor to testify about the opinion he has formed using the standards set forth in the musculoskeletal section of the American Medical Association’s guidebook even though he is not an AMA member, since he testified that chiropractors normally rely on those standards. FAMILY LAW 20 -2-9489 Vincent J. Jones, Jr. v. Barbara M. Jones, App. Div. (10 pp.) Where a settlement agreement included an anti-Lepis clause providing that alimony would not be modifiable unless the wife was denied all (not some) disability and workers’ compensation awards through no fault of her own, and where her workers’ compensation was terminated and child support was reduced because of the emancipation of one of two children, the wife is not entitled to increased alimony. LAND USE — VARIANCE 26-2-9490 Robert and Jean Curtis, et al. v. The Upper Township Zoning Bd. of Adjustment, et al., App. Div. (4 pp.) Trial court properly rejected the board’s finding that applicant had satisfied the negative criteria for bulk and use variances where property was to use an off-site septic system because the facts that the board of health immediately acted to initiate an ordinance prohibiting such a system coupled with the strenuous objection by the township governing body speaks to the issue of what was intended by the zoning plan and ordinance. MUNICIPAL LAW — UTILITIES 30-2-9491 Eastrich Multiple Investor Fund, L.P., et al. v. Mayor and Borough Council of Brooklawn, et al., App. Div. (12 pp.) Where a municipality ‘s monthly water charges discriminate in favor of a single-family residence and against multiunit apartment houses with respect to quarterly fees and gallonage allowances, and where the municipality has refused to apply the gallonage allowance to individual apartment units even if separate meters were installed, municipality must introduce specific evidence that there is a rational reason for the discrimination, and the conclusory affidavit of the public works director that it costs more to maintain a larger water pipe into an apartment building is an insufficient basis to grant summary judgment to the municipality. TAXATION — REAL PROPERTY 35-5-9492 Tamburelli Properties Ass’n v. Cresskill Borough, Tax Ct. (34 pp.) A golf-club building operated as a restaurant with catering constituted impermissible expansion of a nonconforming use when golf course was subdivided for one-family lots, requiring a use variance for continued use. Proof is insufficient to find that variance would be granted. Land under building is valued as unimproved residential lots with nominal value for restaurant building. Court also valued unimproved residential lots at stipulated value of improved lot less cost and time to improve. [Approved for publication] TORTS — LANDOWNER LIABILITY 36-2-9493 Maxyne Yablon, et al. v. Stafford Tire, Inc. t/a/ McManus Tire & Auto Center, et al., App. Div. (6 pp.) Commercial landowner is liable for pedestrian’s fall on grassy area between sidewalk and curb abutting his property even though owner did not exercise control over that area or participate in its construction. CRIMINAL LAW AND PROCEDURE 14-2-9494 State v. David Titus Hyde, App. Div. (11 pp.) Where defense was mental disease or defect, the prosecutor’s closing argument in which he cited defendant’s refusal to answer questions following Miranda rights as evidence that he knew what he was doing during the immediately preceding attack warrants reversal of the conviction even though defense counsel had not objected and had questioned the officer on defendant’s post-arrest statement. [Approved for publication] 14-2-9495 State v. Robert Solano, App. Div. (7 pp.) 1) Unauthorized practice of law is not a lesser included offense of contempt and therefore was properly not charged; 2) Court’s charge that defendant’s knowledge of a prior suspension order satisfied an element of contempt is upheld notwithstanding indictment’s reference to a disbarment order because either order prohibited him from the practice of law. FEDERAL COURT CASE CONTRACTS –COVENANTS NOT TO COMPETE 11-7-9496 Mansol Industries, Inc., d/b/a Elan Technology v. Jasjit Singh, U.S. Dist. ct. (15 pp.) Preliminary injunction is granted against former employee for violating a covenant not to compete in a separation agreement; industry is one peculiarly vulnerable to predatory pricing, and former employee did not refute plaintiff’s contention that its manner of production, pricing, and customer lists are trade secrets and proprietary information.

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