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Vol. 4, No. 207 — October 28, 1996 STATE COURT CASES FAMILY LAW 20-2-0376 Annette T. Senger v. Thomas L. Senger, App. Div. (4 pp.) The disputatious and contentious atmosphere between the parties precluded joint legal custody in the best interest of the children, and judge’s modification of joint custody provision of parties’ settlement agreement, awarding sole custody award to plaintiff, was proper. GOVERNMENT — NAME CHANGES 21-2-0377 In re Application of Rosa Linda Ferner to Assume the Name Koriander, Law Div. (16 pp.) Because the court finds no law in this state prohibiting the requested name change to a single name, and because the applicant has shown lawful reasons for her request, no one has interposed a substantial objection and finally, because applicant’s right to change her name as desired is not outweighed by a contrary public interest, name change is granted. [Approved for publication Oct. 22, 1996.] LABOR AND EMPLOYMENT — POLICE 25-2-0378 Lakewood Twp. P.B.A. Local #71, etc. v. Twp. of Lakewood, App. Div. (8 pp.) Because amended statute N.J.S.A. 40A:10-23.1 cured the illegality defense against the CBA health benefit provision for officers with less than 25 years service, defendant need not ratify the contract in order for it to become effective; under the CBA and N.J.S.A. 34:14A-5.3, defendant is required to continue the CBA terms until a new CBA becomes effective, and judge erroneously denied retired officer benefits. LANDLORD/TENANT — NEGLIGENCE 27-2-0379 Herbert Centrone v. Equitable Life d/b/a Seaview Square Mall, App. Div. (5 pp.) Mall landlord was properly granted summary judgment in case where employee of health club tenant was hit by a windowless door as it swung inward when pushed by a health club patron, since any defect in the design of the door was created by tenant, inasmuch as its architect was responsible for preparing the plans and specifications for the club. LAND USE — MOUNT LAUREL 26-3-0380 Toll Bros., Inc., etc. v. Twp. of West Windsor, etc., et al., Law Div. (143 pp.) (1) Marketability and demand for particular housing types, are factors that must be considered in determining whether a municipality has provided a realistic opportunity for the development of affordable housing. Appropriately sized and priced conventional single-family dwellings may provide an alternative to multi-family housing for the purpose of meeting housing demand to satisfy a municipality’s fair share requirement. (2) Defendant’s ordinances and policies regarding sewer financing and construction, which require inclusionary developers to “front-end” the costs of an oversized gravity-fed system, are factors that discourage inclusionary developers and diminish a realistic opportunity to develop inclusionary sites. (3) Inclusionary sites that require assemblage in order to comply with zoning ordinances and other municipal regulations should not be considered as sites providing a realistic opportunity for development of inclusionary housing. (4) Many of the sites zoned for inclusionary housing are so environmentally constrained or subject to open space or other requirements as to minimize their consideration as sites providing a realistic opportunity for development of inclusionary housing. (5) Where defendant received prior credit for inclusionary sites, and where so little inclusionary development has taken place over an extended period of time — here ten years — despite significant development of the single-family housing market, the burden of persuasion shifts to defendant to establish why previously approved sites have not been developed. (6) As a result of market demand factors, site factors and the terms of defendant’s ordinances and regulations, West Windsor’s inclusionary housing plan does not create a realistic opportunity for the development of its fair share of affordable housing, and West Windsor is thus not in compliance with the Mount Laurel mandate. [Decided October 16, 1996. Approved for publication Jun. 9, 1997, which opinion contains 86 pp.] TAXATION 35-5-0381 Prudential Ins. Co. of America v. Twp. of Parsippany-Troy Hills, Tax Ct. (16 pp.) Court calculates and reduces assessment of plaintiff’s property — on which is located the Parsippany Hotel. [Decided June 28, 1995.][Approved for publication.][Appellate Division affirmed this decision; see DDS No. 35-2-0115 in the Sept. 27, 1996 Alert.] 35-5-0382 Sea-Land Service, Inc. v. Dir., Div. of Taxation, Tax Ct. (9 pp.) Plaintiff was properly denied permission to offset its corporation business tax overpayments against CBT obligations of two related corporations which ultimately merged into plaintiff, since the deficiencies arose from the other pre-merger companies, and the overpayment was made by plaintiff. [Approved for publication.] UTILITIES — MUNICIPAL LIENS — LANDLORD/TENANT 37-2-0383 Sherwood Court v. Borough of South River, et al., App. Div. (16 pp.) Judge correctly determined that water-lien decisions were sound precedents in upholding the statutory lien authority for utility company to assess liens on apartment complex owned by plaintiff for utility bills unpaid by tenants. [Approved for publication Oct. 28, 1996.] WILLS, ESTATES AND TRUSTS — DOMICILE 38-2-0384 In the Matter of Joseph F. Lione, Deceased, App. Div. (17 pp.) Decedent’s mother had established by the proofs a presumption that decedent was domiciled in N.J. at the time of his death, and since wife failed to establish by her proofs that decedent had established — although he may have been in the process of establishing — a new domicile in Georgia, the presumption remains unrebutted. WILLS, ESTATES AND TRUSTS — HOLOGRAPHIC WILLS 38-4-0385 In the Matter of the Estate of Jeffrey A. Hand, Deceased, Chancery Div. (8 pp.) None of the reasons for requiring handwriting in a holographic will are adversely implicated by the use of hand printing or block lettering as distinguished from cursive, nor must the signature be in cursive. [Approved for publication Oct. 22, 1996.] FEDERAL COURT CASES DEBTOR/CREDITOR — FORECLOSURE 15-7-0386 Korea Exchange Bank v. Chung Duk Byun, et al., U.S. Dist. Ct. (14 pp.) Defendants, who gave deed in lieu of foreclosure to plaintiff bank, and entered into a settlement agreement with bank for shortfall note (which entitled them to remain in the property) never paid any portion of the note and bank is entitled to summary judgment thereon. Defendants’ counterclaim — alleging that bank acted in bad faith by selling the home for less than fair market value and by depriving defendant of the opportunity to negotiate with buyer and be able to repay note — fails as a matter of law since the transfer of property was unconditional and even if the bank had sold the property for a greater amount, the defendants would have no right to the excess proceeds. [Filed Oct. 15, 1996.] INSURANCE 23-7-0387 DNA Plant Technology Corp. v. Navigators Ins. Co., U.S. Dist. Ct. (7 pp.) In declaratory judgment action for insurance coverage arising out of the loss of plaintiff’s seeds, the court determines that plaintiff has the burden of proving where the loss occurred, and holds that plaintiff must prove that the seeds arrived in this country and were lost after arrival as a prerequisite to recovering both property losses and business interruption losses. [Entered Sept. 4, 1996.][For publication.] JURISDICTION 24-7-0388 John Vrettos v. Windsor Terrace Condominium Assoc., et al., U.S. Dist. Ct. (8 pp.) In three actions in which plaintiff litigates a “laundry list of perceived injustices committed against him by virtually everyone with whom he has come into contact in recent years” — including attorneys, the courts, a condominium association and dentists — the court dismisses the complaints sua sponte for lack of diversity and federal question jurisdiction. [Dated: Oct. 15, 1996.] NEGLIGENCE 31-7-0389 Anita DiBartolo v. U.S.A., U.S. Dist. Ct. (18 pp.) In a case where plaintiff fell while visiting the Statue of Liberty/Ellis Island National Monument and sues the federal government for negligence, the court grants summary judgment to the government, since the allegedly negligent acts recited in plaintiff’s complaint are encompassed by the discretionary function exception of the Federal Tort Claims Act, and the government is thereby immune from suit. [Filed Oct. 16, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The Family Law Section of the State Bar wants matrimonial practice exempt from the entire controversy doctrine’s reach into malpractice cases. But lawyers outside the practice area see no reason for the exemption. See page 1 of the Oct. 28 Law Journal.

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