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Vol. 4, No. 245 — December 26, 1996 CRIMINAL LAW AND PROCEDURE – JURY INSTRUCTIONS 14-2-0872 State v. Rue, App. Div. (10 pp.) On the facts of this case, the trial judge’s ommision in the jury charge that in a homocide prosecution, even though the prinicipal has committed purposeful or knwoing murder, the accomplice can be found of a lesser offense involving recklessness was not erroneous. [Approved for publication Dec. 26, 1996.] CONDEMNATION 44-2-0873 Commissioner of Transportation v. Bayview, App. Div. (8 pp.) It must be determined, after a factual hearing, whether the moving of trail track, terminating the connection between two of ten railway bay doors to defendant’s property made a significant portion of defendant’s buidling useless for the handling of freight in the manner for which the building was designed such that a substantial destruction of the beneficial use of the building occurred. [Approved for publication Dec. 26, 1996.] WORKERS’ COMPENSATION 39-2-0874 Kertesz v. Korsh, App. Div. (13 pp.) Where petitioner, a sheetrocker by trade, was hired by respondent’s foreman, who told petitioner what to do, petitioner is an employee and thus entitled to recieve workers’ compensation benefits from respondent, underboth the “control” test and the “relative nature of the work” test. [Approved for publication Dec. 26, 1996.] REAL ESTATE – CIVIL PROCEDURE – ATTORNEYS 34-2-0875 Helmar v. Harsche, App. Div. (24 pp.) Where plaintiff- buyer sued defendant-realtors for actual fraud, consumer fraud and negligence by failing to inform her of code violations with respect to the building plaintiff purchased, and during discovery defendants concluded the plaintiff’s former attorney, who represented her at the closing, was a cause of plaintiff’s loss, the motion judge erred in denying defendant’s motion to join plaintiff’s former as a third-party defendant. [Approved for Publication Dec. 26, 1996.] AUTOMOBILES – INSURANCE 05-3-0876 Norica v. Liberty Mutual, App. Div. (7 pp.) A payment by the United States, a self-insurer, to settle plaintiff’s injury claims arising out of an accident with a vehicle owned by the United States, is a tacit admission that vicarious liability may exist and, therefore, the exclusion of the United States from the definition of uninsured vehicle under N.J.S.A. 17:28-1 applies. [Approved for publication Dec. 26, 1996.] WORKERS’ COMPENSATION 39-2-0877 Stephens v. Windsor Management, App. Div. (21 pp.) Petitioner’s claim for workers’ compensation benefits from the Second Injury Fund was properly dismissed because the permanent partial disability caused by the first accident did not manifest until after the second injury; the judge of compensation was not required to make separate findings of pernanent partial disability for each of the two accidents because N.J.S.A. 34:15-12(c) and Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321 (1984) apply only to permanent partial disability, whereas this case involves total permanent disability. CRIMINAL LAW AND PROCEDURE – JURY INSTRUCTIONS – INTOXICATION 14-2-0878 State v. Rivers, App. Div. (36 pp.) Where defendant was charged with purposely or knowingly causing decedent’s death, the trial judge erred when he instructed the jury that intoxication was a complete defense to both aggravated and reckless manslaughter; evidence of intoxication is admissible as a defense to murder to disprove that a defendnat acted purposely or knowinlgy, but not as a defense to manslaughter to show that a defendant was unaware of a risk of which he would have been aware had he been sober, and the error deprived defendant of the right to have the jury deliberate on the lesser charges of aggravated manslaughter and manslaughter. NEGLIGENCE 31-2-0879 Liardi v. Morales, App. Div. (4 pp.) Where plaintiff was injured while standing on his own property and one of the boards used in the remodelling of defendants home fell on plaintiff’s head, the jury’s verdict in favor of defendants was not against the weight of the evidence; although the trial court erred in allowing questions regarding plaintiff’s prior accident, the error was harmless. CIVIL PROCEDURE – FRIVOLOUS LITIGATION 07-2-0880 Kron v. Public Media, Inc., App. Div. (6 pp.) There is no indication of improper motive on the part of plaintiff in continuing with her lawsuit against defendant alleging termination of employement for age discrimination and for filing a workers’ compensation claim after she recieved a letter from defendant claiming that it is distinct from the co-defendant and that their relationship is in the nature of a joint venture, and the order granting attorneys’ fees to defendant for frivolous litigation is dismissed. TAXATION – EVIDENCE 32-2-0881 Gareeb v. Passaic, App. Div. (4 pp.) The trial court erred in accepting the measurements of plaintiff’s building, prepared by an architect, without requiring testimony from the architect, thus denying defendant the opportunty to cross-examine him with respect to the preparation of his drawings. INSURANCE – AUTOMOBILES 23-2-0882 Ciaramello v. Dalton, App. Div. (6 pp.) Plaintiff failed to present sufficient evidence of a serious injury from which a reasonable jury could conclude that she met the verbal threshold. CRIMINAL LAW AND PROCEDURE – IDENTIFICATION 14-2-0883 State v. Dubose, App. Div. (3 pp.) The police officer’s out-of-court identification of defendant from a group of photographs shortly after the officer purchased drugs from defendant was not improperly suggestive. EDUCATION – TEACHERS – CDS 16-2-0884 Palumbo v. Department of Education, App. Div. (3 pp.) The final decision of the State Board of Education disqualifying petitioner from employment in public schools pursuant to N.J.S.A. 18A:6-7.1 because of a prior drug conviction is affirmed. REAL ESTATE 34-2-0885 Kazuba v. Wozney, App. Div. (2 pp.) The summary judgment order is affirmed since the facts clearly demonstrate that the occupancy here was for residential purposes. LANDLORD/TENANT 27-2-0886 Clark v. Paruta, App. Div. (3 pp.) Since the landlord notified the tenant within thirty days of the termination of the lease that he was retaining the security deposit as payment for the final month’s rent, and the tenant consented, application of N.J.S.A. 46:8-21.1, providing for doubling of the deposit, is inappropriate. PUBLIC EMPLOYEES – INSURANCE 33-2-0887 In the matter of John W. Welch, App. Div. (3 pp.) Where decedent was advised that he was required to submit to a medical examination in order to obtain life insurance coverage under the Public Employees’ Retirement System, but he failed to do so for nine years, the decision of the Board of Trustees of the Public Employees’ Retirement System denying his widow’s request for life insurance proceeds is affirmed. CRIMINAL LAW AND PROCEDURE – IDENTIFICATIONS 14-2-0888 State v. Bogner, App. Div. (6 pp.) The distinctiveness of a defendant’s features is not a basis for finding that a fairly conducted indentification procedure violated a defendant’s rights, and here, the fact that defendant was the only one in the photographic array who had a boxer’s nose does not make the identification procedure impermissibly suggestive. — END — Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions

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