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Vol. 5, No. 20 — January 30, 1997 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — DENTISTS 01-2-1170 I/M/O Adoption of an Amendment to N.J.A.C. 13:30-8.1, etc., App. Div. (11 pp.) Adoption of two amendments to administrative code, increasing dentists’ and other dental health professionals’ registration fees for the 1993-5 and 1995-7 biennial periods, is affirmed over the objection of the N.J. Dental Assn. ALCOHOLIC BEVERAGES — DRAM SHOP ACT 47-2-1171 Ackley v. The Cedarwood Tavern, App. Div. (8 pp.) Since plaintiff failed to prove that tavern’s negligent service of alcohol to her was a proximate cause of her accident, judge correctly dismissed suit against tavern at the end of plaintiff’s case. CIVIL PROCEDURE 07-2-1172 Sebco Corp. v. Hwang, et al., App. Div. (7 pp.) Plaintiff’s case was correctly dismissed with prejudice where plaintiff had been cautioned that substitution of new counsel would not be an excuse for further adjournment requests, and then inexplicably failed to get new counsel when its first choice was disqualified. CORRECTIONS — PAROLE 13-2-1173 Waldron v. N.J. Parole Bd., App. Div. (6 pp.) Parole Bd. established by a preponderance of the evidence that there was a substantial likelihood that inmate would commit a crime if released on parole at the time of his application, based on psychological report and inmate’s lack of individual counseling, therefore denial of parole and imposition of the 24-month future eligibility term is affirmed. FAMILY LAW — CUSTODY — OUT-OF-STATE RELOCATION 20-2-1174 Horswell v. Horswell, App. Div. (11 pp.) Although the judge correctly found that defendant’s move to Arkansas did have an adverse impact on plaintiff’s visitation rights, there was no analysis of the positive benefits of that move, including the childrens’ bonding with other relatives, becoming established in school, the wife’s ability to find work and receive support from her family, etc., and there was further no support for the finding that defendant did not have a sincere, good faith reason for the move; matter must be remanded for further consideration. [Approved for publication Jan. 30, 1997.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-1175 B.M. v. P.M., App. Div. (4 pp.) Although judge made no credibility findings, his reference to photographs showing wife’s bruises indicates that he believed wife’s testimony that husband had caused the bruises, and disbelieved husband’s assertion that there had been no physical violence; physical violence by one spouse against another resulting in observable bruises supports the judge’s finding of domestic violence, and restraining order is affirmed. GOVERNMENT — REGULATION OF PRIVATE WELLS 21-2-1176 N.J. Well Water Assn., Inc., etc., et al. v. Borough of Monmouth Beach, etc., et al., App. Div. (6 pp.) Judge properly held that both the DEPE and the Dept. of Community Affairs had concurrent jurisdiction over well drilling and pump installation in N.J., and that municipal electrical subcode official had jurisdiction to inspect the well installed by plaintiff. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-1177 Langdon v. Bd. of Review, et al., App. Div. (4 pp.) Employee was properly denied benefits for leaving work voluntarily without good cause attributable to the work, and his testimony that he left for health reasons is rejected since doctor did not advise him to leave; evidence supports Tribunal’s conclusion that employee left because of conflict with a co-worker, but these conflicts were not sufficient that employee was forced to resign, nor were the working conditions intolerable. PHYSICIAN/PATIENT 29-2-1178 Arroliga, etc. v. Saul, et al., App. Div. (7 pp.) Jury properly found that one doctor had failed to diagnose decedent’s cervical cancer properly, and that deviation produced injury during her life. Jury also properly found that the same doctor, and others, deviated from accepted medical practice once the cancer was diagnosed and treated, causing the patient’s death. PUBLIC EMPLOYEES 33-2-1179 I/M/O Police Employees of North Jersey District Water Supply Commn., etc., App. Div. (6 pp.) Board of Trustees of the Police and Firemen’s Retirement System properly concluded that the North Jersey District Water Supply Commission’s Watershed Police are subject to mandatory enrollment as members of the PFRS because the “constabulary” is a “law enforcement unit” as defined and empowered under the applicable statutes. PUBLIC EMPLOYEES — POLICE — ACCIDENTAL DISABILITY RETIREMENT 33-2-1180 Chippendale v. State Police Retirement System, App. Div. (9 pp.) Police officer was correctly disqualified for accidental disability retirement, despite his permanent disability due to migraine headaches, because the headaches were not proven to be the direct result of a traumatic event within the contemplation of the statute. REAL ESTATE — MODEL HOMES — NEW HOME WARRANTIES — LIMITATIONS 34-2-1181 Ingraham v. Trowbridge Bldrs.; Dept. of Community Affairs, Intervenor, App. Div. (16 pp.) The court invalidates N.J.A.C. 5:25-1.3 — which provides that the New Home Warranty begins to run on the issuance of a temporary certificate of occupancy — since the effect of enforcing this provision would mean that the plaintiff, as purchaser of a model home on which the temporary c.o. had been issued two years before his purchase, did not have the benefit of the protections meant by the Legislature in enacting the warranty law. [Approved for publication Jan. 30, 1997.] REAL ESTATE — PETS — CONDOMINIUMS 34-2-1182 Eleven Eleven River Plaza, Inc., etc.v. Agiman, App. Div. (2 pp.) Evidence supports finding that condo unit owners did not have actual notice of no-pet rule prior to taking occupancy with their elderly dog, and, even if they had, trial judge properly exercised his equitable authority and allowed dog to stay due to condo association’s retained power to grant exemptions from the no-pet rule, in view of the dog’s age and infirmity, and in view of the fact that the dog was not a nuisance. TORTS — MALICIOUS PROSECUTION 36-2-1183 Lopez, et al. v. Seaman Furniture Co., Inc., App. Div. (6 pp.) In view of the evidence adduced at trial regarding the frequency of good faith errors by drivers in loading “extra” furniture, there is no doubt that the jury was justified in concluding that employer defendant was premature in bringing criminal charges against plaintiffs, and malicious prosecution awards are affirmed. CRIMINAL LAW AND PROCEDURE — RESTITUTION 14-2-1184 State v. Corpi, App. Div. (10 pp.) Plea which was made partially conditional on restitution was not void under constitutional or other public policy principles, but the sentence must be modified to delete the amount of restitution ordered therein because there was no finding regarding defendant’s ability to pay. [Approved for publication Jan. 30, 1997.] ??

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