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Vol. 4 No. 114 – JUNE 14, 1996 STATE COURT CASES ADMINISTRATIVE LAW — REALTORS 01-2-9230 N.J. Real Estate Comm’n v. Ronald Cervelli, App. Div. (4 pp.) Plaintiff’s decision to revoke respondent’s real estate broker’s license and salesman’s license was not arbitrary nor capricious where respondent made material misrepresentations in his license applications and demonstrated unworthiness, bad faith and dishonesty. ARBITRATION AND MEDIATION 03-2-9231 City of Newark v. Fraternal Order of Police, etc., et al., App. Div. (8 pp.) Arbitrator did not exceed his authority in health care coverage dispute between the city and police and fire officers’ unions, and his conclusion that city had unilaterally changed its health care program and thus had breached its obligation to maintain the negotiated benefit coverage in the parties’ agreements is affirmed. ATTORNEY/CLIENT — ENTIRE CONTROVERSY 04-2-9232 Roy F. Sutton v. George L. Seltzer, Esq., et al., App. Div. (4 pp.) Plaintiff was required to assert his malpractice claims against his attorney in the underlying contested estate litigation for which he had retained the attorney, and his failure to do so bars his current action under the entire controversy doctrine. DEBTOR/CREDITOR 15-2-9233 Salvatore J. Avena, et al. v. Carmine Franco, et al., App. Div. (8 pp.) Applying Pennsylvania law to this action on promissory notes, the judge correctly held that creditors did not waive their rights to accelerate by merely retaining installment payments proffered by debtors. EDUCATION 16-2-9234 Pineland Learning Center Inc., et al. v. State Bd. of Educ., et al., App. Div. (5 pp.) The state Department of Education had the right to verify private-school costs for handicapped students through the audit it conducted, irrespective of the effective date of N.J.S.A. 6:20-4.11 — which authorizes a “full scope audit” — since the failure of the school to provide certain documentation gave the department no other choice in light of its responsibility for assuring the fiscal and operational integrity of private schools supported in whole or in part by public monies. EVIDENCE — WORKERS’ COMPENSATION — PRIVILEGE 19-2-9235 Marc Liebeskind v. Prudential Ins. Co. of Am., et al., App. Div. (7 pp.) In a workers’ compensation case for injuries allegedly caused by airborne workplace pollutants, where plaintiff sought production of certain records from building owners and managers, the judge erred in holding that the documents did not have to be disclosed since they were covered by the attorney-client privilege, since not all of the documents produced in camera by defendants are clearly privileged, and matter is remanded. FAMILY LAW 20-2-9236 Cynthia A. Marshall v. Eugene J. Marshall, App. Div. (17 pp.) Judge erred in modifying custody arrangement and making defendant the primary custodial parent under the divorce judgment, relying too heavily on the speculative possibility that plaintiff would resume her relationship with her incarcerated boyfriend upon his future release from prison, and failing to consider other factors required under N.J.S.A. 9:2-4. 20-2-9237 Donald MacPherson v. Phyllis MacPherson, App. Div. (6 pp.) Judge properly exercised his equitable powers in determining that husband was not entitled to suspend his alimony payments to wife as a result of her alleged cohabitation with another man, interpreting the “anti-Lepis” clause in the parties’ agreement as a waiver of claims for modification of alimony based upon a financial change in circumstances. LAND USE 26-2-9238 Anthony Aguanno, et al. v Zoning Bd. of Adj. of the City of Englewood, App. Div. (4 pp.) Board acted reasonably in denying plaintiffs’ variance application to change the use of their residence property into an entirely professional office property. 26-2-9239 Ivan Cater v. Twp. of Lawrence Bd. of Adjustment, App. Div. (2 pp.) Where zoning board had denied plaintiff’s application for a use variance for a bait and tackle shop, but granted his variance for a retail vegetable and flower shop, court properly granted board a restraining order against plaintiff when he tried to give away bait and tackle free with the sale of flowers. NEGLIGENCE — CLERGY MALPRACTICE 31-2-9240 F.G. v. Rev. Alex MacDonell, etc., et al., App. Div. (17 pp.) The trial judge erred in dismissing plaintiff’s case on the ground that no cause of action exists for clergy malpractice; the court finds that there is no impenetrable barrier to establishing a standard of care applicable to a clergyman in the context of the allegation that the clergyman used his counseling position to sexually exploit the counselee-plaintiff. Whether plaintiff can establish an applicable standard, show that clergyman breached it, and prove damages are all proof issues that cannot be determined on a motion for judgment on the pleadings, and matter is remanded. [Approved for publication Jun. 14, 1996.] TAXATION 35-2-9241 Central National-Gottesman Inc. v. Director, Div. of Taxation, App. Div. (7 pp.) Since taxpayer showed, by clear and cogent evidence, that there was a lack of functional integration, centralization of management and economies of scale between its investment division and forest products division, Tax Court properly concluded that the two divisions could not be considered a “unitary business” for state corporate tax purposes. [Approved for publication Jun. 14, 1996.] WORKERS’ COMPENSATION 39-2-9242 Lucious Reese v. Manville Sales Inc., App. Div. (6 pp.) Although the court affirms judge’s conclusion that employer failed to sustain its burden of establishing a quantifiable loss attributable to petitioner’s smoking and therefore was not entitled to a credit for such a loss, the judge failed to address respondent’s arguments regarding the petition’s timeliness, and matter must be remanded for examination of that issue. 39-2-9243 Gene Carpenter v. Sears Roebuck & Co., et al., App. Div. (7 pp.) Record supports judge’s findings that petitioner had elected to stop working as in-home repairman, that he was not unemployable, and that the record showed only limited evidence of orthopedic disability, and award is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-9244 State v. Michael J. Pugliese, App. Div. (16 pp.) Trial judge committed reversible error in charging jury that defendant could be found guilty of attempted murder if he acted “knowingly” when only a “purposeful” intent will suffice. Reversible error also was found in judge’s charge on attempted aggravated assault. 14-2-9245 State v. Restituto Martinez-Carbonell, et al., App. Div. (10 pp.) Defendants are entitled to an evidentiary hearing at which they can attempt to adduce the proofs to support their claims that, but for constitutionally ineffective assistance of counsel, they would not have pleaded guilty without first moving to suppress, and matter is remanded. CRIMINAL LAW AND PROCEDURE — SEARCH AND SEIZURE 14-2-9246 State v. Shawn Smith, App. Div. (17 pp.) Trial judge properly concluded that the detention and search of defendant was proper because the police had probable cause to arrest defendant based on reliable informant information, and the search was reasonably incident to that arrest; the search of a friend’s apartment and the seizure of the drugs was not unconstitutional since the record supports the judge’s finding that the friend voluntarily consented to the search. [Approved for publication Jun. 14, 1996.] —END— A Daily Reporter of New Jersey Court Decisions

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