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STATE COURT CASES ADMINISTRATIVE LAW – FIREARMS PURCHASER IDENTIFICATION CARDS 01-2-8014 I/M/O Appeal of . . . Fennell, etc., App. Div. (per curiam) (6 pp.) There is ample support in the record for the trial judge’s conclusion that appellant knowingly provided false information on his firearms identification card application – answering “no” to two questions regarding psychiatric treatment when he had been treated by emergency psychiatric personnel summoned by police on three occasions – to justify the denial of his application. CIVIL PROCEDURE – VACATING DEFAULT JUDGMENT 07-2-8015 Ezekwo v. Sanchez, App. Div. (per curiam) (7 pp.) In this case for damages sustained by the plaintiff by way of lost tenants and rental income due to defendant’s installation of a defective boiler, the court erred in denying defendant’s motion to dismiss the default judgment entered against him, where the court had agreed to delay assigning the case to a judge pending defense counsel’s return from a matter in municipal court. The ultimate sanction of dismissal or suppression of a defense is to be sparingly employed. It is entirely evident from the status of the case as “ready hold” that the judge acted precipitously when he chose not to await the return of defense counsel. FAMILY LAW – CHILD SUPPORT 20-2-8016 Ascolese v. Ascolese, App. Div. (per curiam) (10 pp.) The judge erred in using the shared parenting worksheet in calculating child support, admitting that he was not certain of how much time the children had spent with both parents. He arrived at the total number of overnights spent with plaintiff was by averaging the amount of time each party claimed to have spent with the children, and admitted that he was only venturing a guess. Moreover, the judge made assumptions in considering whether to apply a teenage adjustment. On remand, the trial judge should make additional findings of fact and conclusions of law in reconsidering the award. FAMILY LAW – CHILD SUPPORT – COLLEGE EXPENSES � EMANCIPATION 20-2-8017 Leotsakos v. Leotsakos, App. Div. (per curiam) (9 pp.) The Family Part judge correctly denied the defendant-mother’s motion seeking to require the plaintiff-father to reimburse their son for a $10,000 student loan, but erred in excusing plaintiff from complying with the parties’ interspousal agreement that obligated him to contribute to the son’s college expenses. He erroneously found that the son’s two-year delay in returning to college after initially leaving and seeking full-time employment relieved plaintiff of his obligation. Such a break is not uncommon; and, at the very least, the judge should have analyzed the Newburgh factors as they applied to the parties’ circumstances before effectively negating a provision of the parties’ marital agreement. FAMILY LAW – ENFORCEMENT OF SETTLEMENT 20-2-8018 Lowy v. Lowy, App. Div. (per curiam) (11 pp.) The trial judge, on remand for a determination respecting the enforceability of the rabbinical decision, justifiably rejected the defendant’s application to set aside the parties’ settlement and awarded counsel fees to the plaintiff, finding that the parties had agreed that plaintiff would pay defendant $118,000 and defendant was required to convey his interest in the former marital property to plaintiff in accordance with the rabbinical decision. FAMILY LAW – EQUITABLE DISTRIBUTION – DEBT – ALIMONY 20-2-8019 Fandel v. Fandel, App. Div. (per curiam) (11 pp.) In light of the multiple adverse credibility findings made by the trial judge against the defendant-husband, it is clear that he did not meet his burden of proving that the parties’ shore house was immune from equitable distribution. The evidence was more than adequate to support the judge’s ultimate conclusion that the house, as distinct from the land, was subject to distribution. As to alimony, the judge properly considered all the statutory factors in her calculation of the award to plaintiff. Finally, with respect to the allocation of debts due to the defendant’s mother, it was entirely equitable to make the wife’s repayment of her share of those loans conditioned upon the sale of two other properties in which she had an equitable interest, because neither property was in her name and her interest in the net equity could have been held hostage indefinitely. Burdening her with repayment when the assets could not be ordered liquidated would be clearly unfair. INSURANCE – UNINSURED MOTORIST COVERAGE � PRODUCT LIABILITY – AUTOMOBILES – CRASHWORTHINESS 23-2-8020 Commercial Ins. Co. of Newark v. Steiger, etc., et al., App. Div. (Rodriguez, P.J.A.D.) (13 pp.) The decedent perished in a one-car collision, and his estate sued the vehicle’s manufacturer, alleging that the vehicle was not “crash worthy.” After the products liability suit was settled, the estate filed an uninsured motorist claim, alleging that the accident was caused by a “phantom” vehicle. The plaintiff-UM insurer filed a declaratory judgment action to preclude the UM claim on several grounds. The court holds that the estate is not barred from pursuing a UM claim based on the doctrines of judicial estoppel, which applies when a party has convinced a court to accept its position; however, the doctrine does not apply here because a settlement does not imply endorsement of a party’s position by the court. The court also holds that the settlement of the products liability claim without the consent of the UM insurer does not bar the UM claim because the products liability defendant is neither an uninsured motorist nor the owner of an uninsured vehicle. Lastly, the court holds that, in order to avoid a double recovery, the UM insurer is entitled to a credit for the amount of the products liability settlement. [Approved for publication.] LABOR AND EMPLOYMENT – UNEMPLOYMENT COMPENSATION 25-2-8021 Swindell v. Bd. of Review, etc., et al., App. Div. (per curiam) (4 pp.) Rejecting the claimant’s interpretation of N.J.S.A. 43:21-60(a), the panel finds that the claimant was justly denied additional unemployment benefits where she was terminated because another employee was uncomfortable with her. Both statutory causes of termination, whether by layoff or otherwise, are conjunctive with the statutory requirement of substantial reduction of employment at the worksite. NEGLIGENCE – DOG BITES – AUTOMOBILE INSURANCE COVERAGE 31-2-8022 Mayer, et ux. v. Avery, et al., App. Div. (per curiam) (5 pp.) The plaintiff was bitten by defendant’s dog, when the animal escaped from defendant’s parked car in a store parking lot, as defendant opened the door to enter the vehicle. The appellate court rejects the appeal of the defendant’s automobile insurance carrier from a ruling that found that plaintiff’s injuries resulted from defendant’s use of the automobile to transport the dog. Therefore, the defendant was entitled to coverage for the accident. PUBLIC EMPLOYEES – DISCIPLINE 33-2-8023 I/M/O Fox, etc., App. Div. (per curiam) (4 pp.) The appellant, a firefighter, was properly suspended indefinitely pending the disposition of criminal charges against him for tax fraud and evasion. Firefighters hold an extremely visible position of trust, and any disregard for the law is unacceptable in the context of a parliamentary organization in which the ability to follow orders is crucial to saving lives. PUBLIC EMPLOYEES – TERMINATION 33-2-8024 Czarnecki v. Merit System Board, et al., App. Div. (per curiam) (13 pp.) The court affirms the Board’s determination that the City of Trenton did not violate the L.A.D. when it terminated appellant’s employment as a fire captain, because appellant’s permanent disability, resulting from a series of work-related accidents, rendered him unable to discharge the essential functions of the position. The administrative position assigned to him as a temporary accommodation for his disabilities did not obligate the City to continue to employ him in that capacity. REAL ESTATE – NEW HOMES – CONSUMER FRAUD – MISREPRESENTATION OF SQUARE FOOTAGE � AGENCY 34-2-8025 Cook, et ux. v. McPherson, et al., App. Div. (per curiam) (25 pp.) The plaintiffs successfully sued defendant for various defects in the new home he constructed for them, but received a far lower award than they sought. The primary issue on appeal is the trial judge’s failure to charge the jury, as requested by plaintiffs, that the defendant would be liable under the Consumer Fraud Act for misrepresentations as to the square footage of the living space made by the realtors, his agents, in the listing agreement. While the panel concurs with plaintiffs that, theoretically, defendant could be liable under the CFA for misrepresentations by the realtors on the MLS listing, it refuses to set aside the verdict on this basis because of the procedural manner in which this charge issue unfolded. Recognizing the incomplete nature of the CFA jury instructions, the panel does not regard its omission of the agency issue as plain error. Plaintiffs’ counsel did not object to the judge’s charge and the agency question, which the court had asked counsel to research, was simply dropped. There was also no direct proof of who was responsible for the square footage figure used in the listing, or how the number had been calculated. The 17% disparity is substantial, but not unconscionable. The jury, in fact, did find defendant personally responsible for the discrepancy and determined that he had breached the contract because of that misrepresentation. They awarded plaintiff $64,000 as compensation for the error, an amount that does not signal manifest injustice, notwithstanding plaintiffs’ inability to also collect treble damages and attorney’s fees under the CFA. Thus, there is no necessity for a retrial under the circumstances. TORTS – TORT CLAIMS ACT – PARKS – SLEIGH RIDING � FENCING 36-2-8026 Colletti, et vir. v. County of Monmouth, et al., App. Div. (per curiam) (15 pp.) The plaintiff was injured in a public park while watching her children sleigh ride, when a ten-year-old girl’s sled crashed through a plastic mesh fence behind which plaintiff was standing, causing plaintiff severe injuries. The County put the fence up to divide two sledding areas, and for observers. Although the panel agrees with the trial judge’s conclusion that plaintiff’s expert’s report was a net opinion � as it cited no fencing standards and was purely speculative � it does not agree with the judge’s determination that plaintiff’s complaint had to be dismissed in the absence of the expert opinion. The evidence, presented in a light most favorable to plaintiff, presented jury questions as to whether the placement of the walkway between the fences was a dangerous condition on defendants’ property, and whether defendants’ conduct was palpably unreasonable. WILLS, ESTATES AND TRUSTS – WILL CONTESTS – COUNSEL FEES 38-2-8027 I/M/O Estate of Addevensky, etc., App. Div. (per curiam) (7 pp.) Following trial, the Chancery judge aptly found that a confidential relationship existed between appellant – the decedent’s niece and sole beneficiary under the propounded will – and the testator, and that suspicious circumstances existed surrounding execution of the will; however, he found in favor of appellant on the issues of testamentary capacity and undue influence and admitted the will to probate. The appellate panel affirms the judge’s award of counsel fees to the challenger – the putative son of the decedent – as well as the judge’s determination to defer the issue of the son’s parenthood and consequent standing. Although appellant raised a question that the son was not the real child of the decedent, she was on his birth certificate as the mother and had held him out to be her son during her lifetime. The judge correctly noted that, if the will was upheld in appellant’s favor – as it was – there would be no need to waste judicial resources on a question which had no meaning. CRIMINAL LAW AND PROCEDURE – KIDNAPPING � SENTENCING 14-2-8028 State v. Lopez, App. Div. (Kestin, P.J.A.D.) (13 pp.) The mandatory minimum sentence requirement in the last paragraph of N.J.S.A. 2C:13-1c(2) for certain categories of kidnapping, 25 years without parole, is not amenable to a sentence downgrade under N.J.S.A. 2C:44-1f(2). [Approved for publication.] CRIMINAL LAW AND PROCEDURE – SEXUALLY VIOLENT PREDATOR ACT 14-2-8029 I/M/O Civil Commitment of J.M.B., etc., App. Div. (Collester, J.A.D.) (38 pp.) Appellant, who was civilly committed under the Sexually Violent Predator Act, appealed his initial commitment, alleging he was wrongfully committed because none of his convictions was a sexually violent offense as defined by N.J.S.A. 30:4-27.26. The Court holds that subsection (b) is a catchall provision permitting the psychiatric experts and the court to consider the factual circumstances of the offenses in making the determination of whether the committee committed sexually violent offenses and was a sexual predator under the Act. [Approved for publication.] � -Susan M. Clapp, Esq., Editor

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