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SUPREME COURT Ryan v. Holy Trinity Evangelical Lutheran Church (A-116/117-01, decided February 11, 2003). Holy Trinity is entitled to charitable immunity, pursuant to N.J.S.A. 2A:53A-7 to -11, because it is a nonprofit entity, it is organized exclusively for religious purposes, and at the time of the accident, it was promoting its objectives in respect of plaintiff, who was a beneficiary thereof. Because the Mothers’ Center is organized exclusively for educational purposes, no further financial analysis is required. [Digested at page 64.] Richard Lindquist v. City of Jersey City Fire Department (A-84-01, decided February 11, 2003). (This is a companion case to Dennis Culbert v. City of Jersey City, A-92-01.) Richard Lindquist’s employment as a fireman with the Jersey City Fire Department caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers’ Compensation Act. [Digested at page 76.] Dennis Culbert v. City of Jersey City (A-92-01, decided February 11, 2003). (This is a companion case to Lindquist v. City of Jersey City Fire Department, A-84-01.) Dennis Culbert’s employment as a fireman for more than 30 years caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers’ Compensation Act. [Digested at page 78.] SUPERIOR COURT, APPELLATE DIVISION John J. Swick Jr. and Deborah Swick v. The New York Times Company et al (A-2988-01T5, decided February 7, 2003 — Amended opinion released February 13, 2003). We affirm the dismissal of plaintiff’s claim against defendants, The New York Times, for negligent spoliation of evidence. Applying traditional negligence principles, plaintiff’s prior dismissal of his complaint against the other defendants in his product-liability action because he could not establish a prima facie case against them, prevented him from proving that the Times‘ conduct in failing to preserve the machine proximately caused any injury to him. The manufacturer was defunct and had declared bankruptcy. Moreover, plaintiff failed to attempt to locate and examine the machine after the Times informed him that it had been sold to a company in the Philippines. [Digested at page 74.] Jenevieve Casinelli v. Wilfredo Manglapus (A-4960-01T2, decided February 7, 2003). In a verbal-threshold case governed by the Automobile Insurance Cost Reduction Act, where a plaintiff fails to file the required physician certification within the time prescribed by N.J.S.A. 39:6A-8(a) and the two-year statute-of-limitations period set forth in N.J.S.A. 2A:14-2 has run at the time defendant files a motion to dismiss, if the plaintiff is able to establish the requisite elements to demonstrate “substantial compliance” with the procedural requirement that a physician certification be timely filed, then the harsh consequences of a dismissal with prejudice can be equitably avoided. We reach this conclusion because failure to strictly comply with the time requirements for filing a physician certification does not go to the heart of the cause of action as defined by the Legislature. See Watts v. Camaligan, 344 N.J. Super. 453, 462-68 (App. Div. 2000). Although the fact that the applicable statute of limitations may have expired at the time defendant moved for dismissal does not preclude a substantial-compliance analysis, as a prerequisite for consideration of application of the doctrine of substantial compliance, the plaintiff must have filed a physician certification that, except for being untimely, otherwise meets the requirements contained in N.J.S.A. 39:6A-8(a). [Digested at page 54.] State of New Jersey v. Richard Overton (A-4827-00T3, decided February 7, 2003). A person who is sleepwalking cannot be convicted of child endangerment or child abuse if his actions occurred while he was in that state. In summation, the prosecutor misstated the law when he told the jury it could find defendant guilty of these offenses based solely on his act of going to bed naked with no lock on the bedroom door, with young children sleeping in the house, knowing he had a propensity to sleepwalk. Such conduct could, at best, constitute recklessness. We find plain error and reverse defendant’s convictions and remand for a new trial. [Digested at page 53.] State of New Jersey v. James McIlhenny (A-4561-00T4, decided February 7, 2003). Held on defendant’s post-conviction relief petition that nondisclosure to plea judge of alleged exculpatory evidence prior to entry of a plea of guilty to murder did not constitute ineffective assistance of counsel. Further held that defendant’s second PCR was procedurally barred by R. 3:22-4 and R. 3:22-12 in the absence of any persuasive showing of violation of constitutional rights or injustice. Lonnie I. Clarke Sr. v. Township of Mount Laurel et al (A-1116-01T3, decided February 7, 2003). We reverse the grant of summary judgment in favor of defendants. There was a genuine issue of material fact, whether in light of the general orders prescribing the proper course of action when faced with hostage, barricade or sniper situations, the police officer’s decision to establish a perimeter inside the house rather than outside, resulting in the shooting death of the victim, was a willful violation of a known standing order, to overcome the good-faith immunity from liability in the executive or enforcement of any law under N.J.S.A. 59:3-3. [Digested at page 75.] Angela DiStefano v. Wayne Greenstone, Esq., et al (A-1098-01T2, decided February 7, 2003). This case presents the problem of how to deal with the “dual contingency” fee aspect of a malpractice claim against an attorney who has mishandled a personal-injury action. Here, defendants Wayne Greenstone and Greenstone & Greenstone (defendant or Greenstone), original counsel for plaintiff, Angela DiStefano, did not timely pursue plaintiff’s claim and the statute of limitations barred her personal-injury action. The plaintiff’s malpractice claim against defendants was partially settled for $90,000, representing compensatory damages, leaving for adjudication the disposition of the contingent-fee aspect of her damages for legal malpractice. We now follow the expression of our Supreme Court in Saffer v. Willoughby, 143 N.J. 256 (1996), as we understand it, and rule that plaintiff is entitled to recover the entire $90,000 without reduction for the original one-third contingent fee, or $30,000, and is also entitled to recover as consequential damages in the malpractice case against Greenstone her agreed-on fee with her present attorney, now pursuing this action, also one-third of the total recovery or $30,000. Although this process leads to a duplicate recovery, we glean this result from the principles expressed by the Supreme Court in Saffer and follow its lead. Leonard Strulowitz, O.D., et al v. Jodi Brudno, O.D., et al (A-667-01T5, decided February 10, 2003). A person has standing to enforce a key-man type disability policy when that person pays the premiums, is named as the insured, and will ultimately benefit from payment of the proceeds. It is not determinative to the contrary that the insured is not designated in the policy as the owner or the loss payee. On the facts presented, the insured also qualifies as a third-party beneficiary of the policy. State of New Jersey v. Javier J. Lozada (A-2295-01T4, decided February 13, 2003). Where a defendant is charged with third-degree stalking, N.J.S.A. 2C:12-10c, based on violation of a domestic-violence restraining order, and is also charged, by reason of that conduct, with fourth-degree contempt of a domestic-violence restraining order, N.J.S.A. 2C:29-9b, severed sequential trials are required in which defendant is first tried on the basic stalking offense and then, if found guilty, immediately tried by the same jury of the contempt charge and the circumstance elevating the stalking crime from fourth degree to third degree. The recommendation of the Model Criminal Charge Committee to that effect is endorsed. Martin B. Judge v. Blackfin Yacht Corporation et al (A-1662-01T3 and A-2815-01T3, decided February 13, 2003). Under the Consumer Fraud Act, N.J.S.A. 56:8-1 to 8-116, when a purchaser contracts to purchase a special order item from a vendor, the vendor has no duty to disclose the bankruptcy of the supplier of the special order item to the purchaser unless (1) the vendor knows of the bankruptcy; and (2) the vendor knows there is a reasonably foreseeable risk that the supplier will not be able to deliver the product to the purchaser’s specifications. Carol Debell v. Board of Trustees, Public Employees Retirement System (PERS) (A-1012-01T1, decided February 13, 2003). 1) New Jersey’s public employees’ pension forfeiture statute, N.J.S.A. 43:1-3, does not violate the double jeopardy provision of the New Jersey Constitution, art. I, � 11. 2) New Jersey’s public employees’ pension forfeiture statute, N.J.S.A. 43:1-3, is not pre-empted by the vesting requirements of the Internal Revenue Code, 26 U.S.C.A. � 411(e)(2). State of New Jersey v. Anthony Hester (A-6316-01T5, decided February 13, 2003). Defendant should be found guilty or enter a guilty plea before consideration is given to imposition of “special probation” incident to a drug court program under N.J.S.A. 2C:35-14 a and c. There are certain offenses and offenders who are ineligible for the program. N.J.S.A. 2C:35-14 a, b. In addition, defendants convicted of certain offenses cannot be placed on “special probation” over the prosecutor’s objection, which objection cannot be overruled except on a finding of “a gross and patent abuse of prosecutorial discretion.” N.J.S.A. 2C:35-14c. The standard used for review of the denial of pretrial intervention program applications is applicable in this setting. Where the defendant is placed in the program over the prosecutor’s objection, the state has the right to appeal, and the sentence is stayed pending appeal. In the absence of any issues being raised, we do not discuss the impact of participation and credits pending appeal and in the event of reversal.

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