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Vol. 4 No. 97 – May 21, 1996 STATE COURT CASES ALCOHOLIC BEVERAGES 47-2-8970 Burke s Tavern, et al. v. State of N.J., et al., App. Div. (6 pp.) Lower court correctly dismissed tavern keepers action for a declaratory judgment challenging the constitutionality of Chapter 370 of the Laws of 1991, amending N.J.S.A. 33:1-40.3 to except cities of the first class from the permission otherwise granted for the sale of wine and malt alcoholic beverages for off-premises consumption during hours which on-premises consumption is permitted. CIVIL PROCEDURE — FULL FAITH AND CREDIT 07-2-8971 The Fontana Group Inc., etc. v. Mack Auto Imports Inc., etc., App. Div. (4 pp.) Inasmuch as the defendant had consented to the jurisdiction of the Arizona courts by contract, it was obligated to challenge the effect of the entry of summary judgment against it in that forum, and, since it did not, trial court correctly afforded the judgment full faith and credit and entered judgment in this state. ENVIRONMENT 17-2-8972 N.J. Dep’t of Envt l. Protection, etc. v. Mt. Bethel Humus Co. Inc., App. Div. (13 pp.) DEP s decision to require defendant to submit a mitigation plan and restore a portion of its property to its original condition is reversed and remanded, since more fact-finding is necessary as to the amount of humus harvested from the disputed area prior to the effective date of the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1. 17-2-8973 In re CAFRA permit No. 87-0959-5 issued to Gateway Assoc., App. Div. (24 pp.) Court reverses major modification of Coastal Area Facility Review Act permit development plans, since the Department of Environmental Protection did not have the power to waive its bay island corridor policy in the absence of a regulation authorizing such a waiver and establishing appropriate standards to guide the agency s decision to grant such modification. [Approved for publication May 21, 1996.] HEALTH — CERTIFICATES OF NEED 22-2-8974 Mercer Medical Ctr., et al. v. Leonard Fishman, etc., et al., App. Div. (30 pp.) Final decision of health commissioner, which awarded a certificate of need to Hamilton Hospital for a new obstetrics service, conformed with controlling statutory and regulatory law, and competitors argument that the application was procedurally defective is without merit. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-8975 Keith David Mills, et al. v. Mkt. Transition Facility, etc., App. Div. (4 pp.) Uninsured motorist coverage in the insured s policy was limited to a spouse, relative or family member and the intentions of the insured and her divorced husband to remarry did not bring him within the coverage provisions of her policy. LABOR/EMPLOYMENT — DRUG TESTING 25-2-8976 N.J. Transit PBA Local 304 v. N.J. Transit Corp., App. Div. (37 pp.) Summary judgment was properly entered in favor of defendant corporation upholding the constitutionality of the random drug and alcohol testing of its policemen who carry firearms for security purposes. [Approved for publication May 21, 1996.] PARENT/CHILD — ADOPTION 28-2-8977 In the Matter of the Adoption of M., etc., App. Div. (5 pp.) Plaintiff s complaint to adopt a minor child was properly dismissed since she had no standing to bring the action. PRODUCT LIABILITY 32-2-8978 Arsenio Vega v. Standard Machinery Co., etc., et al., App. Div. (9 pp.) Plaintiff s employer s predecessor was not a designer or manufacturer of an allegedly defective machine, nor was it a supplier or seller by virtue of its merger with the employer, and thus the employer, as successor in interest, is not liable to employee other than for workers compensation benefits. [Approved for publication May 21, 1996.] PUBLIC EMPLOYEES 33-2-8979 Greta Singletary v. Bergen Pines County Hosp., App. Div. (6 pp.) Although food service worker had disciplinary problems during her working test period, the decision of the Merit System Board to extend the test period — and not to terminate the employee as recommended by the ALJ — was appropriate in light of the worker s absence on approved medical leave during the original test period . 33-2-8980 Frederick W. Silbon Jr. v. State of N.J., etc., et al., App. Div. (2 pp.) Where police officer was attempting to secure a fire extinguisher in his patrol car s trunk, and where the officer felt his back snap when the extinguisher hit the trunk lid, the officer did not involuntarily meet with a physical object or some other external matter and was not the victim of a great rush or force or power that he himself did not bring into motion, and he therefore was properly denied accidental disability retirement benefits. WILLS, TRUST AND ESTATES — ENTIRE CONTROVERSY 38-2-8981 In the Matter of the Estate of John Soltesz, Deceased, App. Div. (5 pp.) Plaintiffs claims against their deceased stepmother for proceeds of their father s profit- sharing plan are barred by the entire controversy doctrine because of their failure to raise the claims — known to them earlier — in prior litigation they had brought after his death seeking to void conveyances he had made after a stroke. CRIMINAL LAW AND PROCEDURE 14-2-8982 State v. Allan Tuttle, App. Div. (20 pp.) The trial judge erred in denying defendant s motion for a judgment of acquittal on his kidnapping charge since defendant s confinement of victim was only incidental to the underlying offenses of robbery, attempted aggravated sexual assault and aggravated criminal sexual contact. CRIMINAL LAW/PROCEDURE — CORPORATE OFFICERS 14-2-8983 State v. John R. Paone, App. Div. (5 pp.) Corporate president was properly found guilty of failing to remit corporation s unemployment insurance contributions, and order directing him to make restitution for the corporate debt was appropriate, since the Legislature intended that corporate officers who criminally defraud public trust funds pay back the funds. [Approved for publication May 21, 1996.] CRIMINAL LAW/PROCEDURE — D.W.I. 14-2-8984 State v. John J. Kerkowski III, App. Div. (7 pp.) The credible evidence supports the finding that officer had probable cause to arrest defendant for DWI, and state also met its burden of proof in showing that the breathalyzer equipment was in proper working order, and that the operator was qualified to administer, and properly administered, the test.

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