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STATE COURT CASES

AUTOMOBILES — NEGLIGENCE — “SHY AWAY” THEORY

05-2-6562 Edwards, et ux. v. Jones, et al., App. Div. (per curiam) (9 pp.) The panel affirms the $3.1 million plaintiff’s verdict against the defendant police officer and his municipal employer, for an automobile accident which arose when defendant Jones “shied away” in his truck from the police’s officer’s vehicle parked on the shoulder of the road, and hit the plaintiff’s vehicle coming from the other direction; the issue of the officer’s negligence was properly submitted to the jury, which was capable of understanding the “shy away” theory based upon their own experience and without expert testimony, to determine whether the officer’s conduct was a proximate cause of the accident.

CIVIL PROCEDURE — VACATING DEFAULT JUDGMENT

07-2-6563 Bayside Chrysler Plymouth Jeep Eagle, Inc. v. Ma, et ux., App. Div. (per curiam) (6 pp.) Agreeing with defendants that service by mail upon them was defective, the court reverses the trial judge’s denial of defendants’ motion to vacate the default judgment entered against them in this collection action on a retail installment sales contract for a vehicle plaintiffs purchased from plaintiff.

CIVIL PROCEDURE — VOLUNTARY DISMISSALS

07-2-6564 Brunick, et ux. v. Judd Assocs., L.P., et al., etc., App. Div. (per curiam) (11 pp.) In this action alleging defects in the construction of plaintiffs’ new home, the trial court mistakenly exercised its discretion in denying plaintiffs’ motion to amend their complaint or alternatively, to dismiss their action without prejudice, because events which were not reasonably foreseeable occurred late in the litigation process which necessitated the amendment or the dismissal, and the granting of either form of relief would not have resulted in prejudice to the adverse parties.

FAMILY LAW — ALIMONY — COHABITATION

20-2-6565 Saslow v. Saslow, App. Div. (per curiam) (4 pp.) The Family Part judge correctly construed the controlling principles set forth in Konzelman, and denied the defendant — former husband’s motion to terminate or reduce his alimony obligation to his former wife, finding that the defendant had failed to prove plaintiff’s alleged cohabitation with another.

FAMILY LAW — VACATING JUDGMENTS

20-2-6566 Fue v. Fue, App. Div. (per curiam) (5 pp.) The trial judge, on remand, thoughtfully considered the merits of defendant’s motion seeking reconsideration of an order granting relief to plaintiff; the motion for vacation of the judgment based on any of the six specified grounds should only be granted sparingly, and the court found no proof of mistake, inadvertence, surprise or excusable neglect, and no new or unique evidence on the defendant’s arguments on the issues of waiver and laches.

INSURANCE — VERBAL THRESHOLD

23-2-6567 Fay, et ux. v. Academy Bus Lines, Inc., et al., App. Div. (per curiam) (3 pp.) Plaintiff’s personal injury case was justly dismissed for failure to surmount the verbal threshold’s “serious impact” prong, where she only missed one day from work after the accident, was able to resume most of her normal gym activities, and only stopped going to the gym when she became pregnant, thereafter delivering a healthy baby without any complications associated with the accident.

INSURANCE — VERBAL THRESHOLD

23-2-6568 Cherian v. Corres, et al., App. Div. (per curiam) (6 pp.) The motion judge accurately found that, although plaintiff met the first prong of the Oswin test, objectively demonstrating a qualifying injury, she failed to meet the second, “serious impact” prong, and, thus, failed to meet the verbal threshold; despite her complaints, plaintiff was able to perform routine activities in her daily life and was not deprived of the physical ability to continue any social activities that had been a significant part of her way of life.

LANDLORD/TENANT — EMOTIONAL DISTRESS

27-2-6569 Agcaoili v. Wiersielis, App. Div. (per curiam) (3 pp.) The court dismisses, as interlocutory, the appeal of the plaintiff in this matter arising out of an unsuccessful landlord/tenant action filed by defendant, wherein plaintiff seeks over $1 million in damages and medical expenses for physical, mental and emotional stress; plaintiff’s complaint had been dismissed without prejudice for failure to make discovery, and there are pending motions below — plaintiff’s to amend the complaint and defendant to have the complaint dismissed with prejudice.

LAND USE — VARIANCES — “HARDSHIP” REQUIREMENTS

26-2-6570 Duffy v. Upper Twp. Zoning Bd. of Adj., App. Div. (per curiam) (14 pp.) The Law Division judge erred in overturning the defendant Zoning Board’s denial of a residential construction variance to plaintiff, which denial had been based on the fact that the nineteen-lot property plaintiff was contracted to purchase did not front on an improved road; the Board found that plaintiff did not provide sufficient evidence of an unnecessary hardship; and the judge erroneously concluded that there was a significant distinction between planning and zoning variances in analyzing the “hardship” standard, inappropriately focusing on the use of the terms “unnecessary” and “undue”; moreover, the judge wrongly substituted her own judgment for that of the Board.

PARENT/CHILD — ADOPTION — TERMINATION OF PARENTAL RIGHTS

28-2-6571 I/M/O Adoption of a Minor Child by Meyer, et ux., App. Div. (per curiam) (13 pp.) The panel affirms the termination of appellant’s rights to his six-year old daughter, and her simultaneous adoption by her paternal aunt and uncle, with whom she has lived since she was six months old; appellant has a criminal history and drug abuse problem, and had no relationship with the child outside of supervised visitation, which appellant objected to and, therefore, ceased attending.

PARENT/CHILD — TERMINATION OF RIGHTS

28-2-6572 State of N.J. D.Y.F.S. v. W.T.; I/M/O Guardianship of M.S.B., a Minor; one other caption, App. Div. (per curiam) (7 pp.) On remand for more specific findings, the trial judge aptly rendered those findings, and terminated appellants’ rights to their three-and-one-half year-old special needs, developmentally-delayed son; the child was born addicted to opiates because of the mother’s drug use, and was placed in foster care two months after his birth, when he was released from the hospital; the foster mother, to whom he is bonded, wishes to adopt him; and the court rejects appellants’ contention that DYFS did not make reasonable efforts to find alternatives to the termination of their rights.

PARENT/CHILD — TERMINATION OF RIGHTS

28-2-6573 N.J. D.Y.F.S. v. T.M.; I/M/O Guardianship of D.M.M., a Minor, App. Div. (per curiam) (27 pp.) The panel affirms the termination of appellant’s rights to her oldest son, now nine years old, based on a record which included appellant’s long history with DYFS, personality disorders which “severely impaired” her ability to parent, the removal and placement elsewhere of her other three children, and the lack of appellant’s success at bettering her situation despite a vast array of services proffered to her.

PHYSICIAN/PATIENT — INCREASED RISK OF HARM

29-2-6574 Covelli v. Levant, et al., App. Div. (per curiam) (9 pp.) The appellate court reverses the judgment of no cause for action entered following an adverse jury verdict in this medical malpractice action, arising out of the defendant’s failure to properly diagnose and treat the 74-year old plaintiff’s high blood pressure and kidney disease, and allegedly resulting in the ultimate loss of plaintiff’s kidney; the court finds that the trial judge did not instruct the jury properly on the concept of increased risk of harm in light of plaintiff’s pre-existing condition; although his instructions complied with the model jury charge as it existed at the time, the instructions did not include the more detailed explication of the concept of “substantial factor” which the Court announced in Reynolds some months before this trial, and, clearly, neither the court nor the parties had the benefit of the additional analysis set forth in Verdicchio; reversed and remanded for further proceedings.

CRIMINAL LAW AND PROCEDURE — “NO-KNOCK” ENTRY — PROBABLE CAUSE FOR SEARCH WARRANTS

14-1-6575 State v. Jones, Supreme Ct. (Zazzali, J.) (44 pp.) (1) The police officer’s affidavit detailing the controlled purchases of cocaine from persons with prior drug-related arrests and convictions established probable cause for the issuance of a search warrant, even where the confidential informant who supplied the initial tip was of unknown reliability. (2) The suspect’s seven-year-old arrest for assault against a police officer and a weapons-related crime justified the warrant’s “no-knock” provision. [Companion case to 14-1-6576 below.]

CRIMINAL LAW AND PROCEDURE — “NO-KNOCK” WARRANTS

14-1-6576 State v. Sanchez, Supreme Ct. (per curiam) (7 pp.) Under the totality of the circumstances in this case, the police articulated a reasonable, particularized suspicion of a danger to officer safety sufficient to justify the issuance of the no-knock warrant. [Companion case to 14-1-6575 above.]

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