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Vol. 4, No. 208 — October 29, 1996 STATE COURT CASES ENVIRONMENT — WETLANDS 17-2-0390 In re Freshwater Wetlands Permit Nos. 1024, etc., et al., App. Div. (5 pp.) Owners of land adjacent to property owned by applicant (who was granted wetlands permits and waivers) have no statutory right to a hearing, nor do they have constitutionally protected proprietary interest in the matter entitling them to a hearing on their objections to the granting of the permits. FAIR HOUSING 41-3-0391 Southport Development Group, Inc., etc., et al. v. Twp. of Wall, et al., Law Div. (25 pp.) Municipal development fees ordinance is found to be valid, and plaintiffs’ claims pale before the overriding public policy concern to achieve realistic housing opportunities for low and moderate income individuals, as required by constitutional mandate. [Approved for publication Oct. 22, 1996.] INSURANCE 23-2-0392 Allstate Ins. Co. v. Back & Neck Center of Brick, etc., App. Div. (5 pp.) Examination under oath of injured party was not a prerequisite to recovery by assignee who provided medical services to that party, where injured party could not be found and in the absence of any evidence of fraud. INSURANCE — COMITY 23-2-0393 Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., et al., App. Div. (13 pp.) In coverage action dealing with excess insurance policies and asbestos claims, since there is no reason to suspect that the rights of the N.J. claimants will not be fully protected regardless of the outcome of the coverage issues, the court affirms the dismissal of N.J. litigation on comity grounds, in favor of a more comprehensive Connecticut action involving the same parties, the same insurance policies and the same issues. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0394 Gianfranco R. Pace v. Bd. of Review, App. Div. (4 pp.) Despite former electrical engineer’s contention that he was willing to take a job and was “available for work,” Appeal Tribunal correctly concluded that he was devoting his full time efforts to his new bagel business, and disqualified him for unemployment benefits due to his unavailability for work. 25-2-0395 Theresa Liland v. Bd. of Review, etc., App. Div. (2 pp.) Applicant’s child care reasons for not returning to her job at the end of her maternity leave were wholly personal and unrelated to her work, and she was properly disqualified from receipt of benefits. LAND USE 26-2-0396 Forge Pond-Mazdabrook Conservation Coalition, Inc. v. The Twp. of Parsippany-Troy Hills, et al. v. Town Council of the Twp. of Parsippany Troy-Hills, et al., App. Div. (12 pp.) In a challenge wherein plaintiff alleged that COAH ordinance and Developers Contribution Agreement were void due to a conflict of interest arising from the relationship between certain township council and planning board members and one of the developers, trial court correctly dismissed those counts of plaintiff’s complaint in lieu of prerogative writs because a new, untainted ordinance, was adopted before the matter was tried, thereby purging itself of any conflict. NEGLIGENCE — RAILROADS 31-2-0397 Anna Cecilia Calvo, etc. v. Robert L. Drucker, et al., App. Div. (2 pp.) Trial court correctly dismissed complaint because there was a lack of evidence to create a jury question whether the warning bell at the crossing had functioned at the time of the collision and because there was no genuine issue of fact on the issue of when defendant first saw plaintiff’s decedent’s vehicle. PHYSICIAN/PATIENT — NURSES 29-2-0398 Anne M. Greenley, etc. v. Edison Estates Rehabilitation and Convalescent Center, etc., et al., App. Div. (5 pp.) Evidence supports verdict of no cause against nurse’s aide and convalescent center in death of 83-year old stroke victim from eye complications, and plaintiff’s claims of error are without merit. CRIMINAL LAW AND PROCEDURE 14-2-0399 State v. Tracy D. Plummer, App. Div. (6 pp.) While the Law Division judge correctly concluded that the officers’ search of defendant, however cursory and unintrusive, exceeded the scope of a permissible frisk for weapons, the judge erred in suppressing evidence seized by the police in the warrantless search because the search can nevertheless be sustained if incident to a valid arrest, and the judge failed to give sufficient deference to the experience of the officers, which gave them probable cause to arrest. 14-2-0400 State v. Henry J. Ledbetter, App. Div. (4 pp.) Court’s refusal to charge resisting arrest as a lesser included offense of assault was reversible error. FEDERAL COURT CASES CIVIL RIGHTS 46-7-0401 Frank Sacco, et al. v. The State of New York, et al., U.S. Dist. Ct. (13 pp.) Court dismisses third of plaintiffs’ Section 1983 suits — alleging that defendants violated their civil rights by interfering with the plaintiffs’ unpermitted operation of a landfill and then with subsequent enforcement and contempt proceedings — since the action is barred by the statute of limitations and collateral estoppel. [Filed Oct. 16, 1996.] INTELLECTUAL PROPERTY 53-7-0402 Automatic Tool & Connector Co., Inc., et al. v. Amphenol Corp., U.S. Dist. Ct. (15 pp.) Analyzing all of the public and private factors required to consider defendant’s motion to transfer venue of trademark infringement action, the court finds none of the factors dispositive except for the fact that N.J., plaintiff’s chosen forum, is the plaintiff’s home and the place where the allegedly infringing goods were sold, and as such, this district has a central relationship to the facts underlying the claims, mandating the denial of the motion to transfer. [Filed Oct. 16, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A year ago, plaintiffs’ attorneys were grousing about a new law requiring malpractice plaintiffs to file affidavits of merit, and defense attorneys were hailing its usefulness as a discovery tool. Now, the tables have turned. See page 1 of the Oct. 28 Law Journal.

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