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STATE COURT CASES CONTRACTS 11-2-2652 Hughes v. Valvano, etc., et al., App. Div. (4 pp.) In a case involving a home improvement contract, (1) the judge properly found that, notwithstanding that the plaintiffs’ complaint had been dismissed, since the parties continued to engage in discovery, defendant suffered no prejudice from the delay in plaintiffs’ moving to restore the complaint almost one and a half years later, and (2) since the jury essentially awarded plaintiffs the full amount of the contract price, a reasonable inference was created that the jury found defendant’s work had no value, therefore, to the extent there was any error in the jury charge as defendant contends, it was harmless. 11-2-2653 Trachtenberg v. Jersey City Rehabilitation Therapy, Inc., etc., et al. v. Trachtenberg, et al., App. Div. (12 pp.) Judge properly held that sellers of physical therapy practice breached the contract by not having disclosed their knowledge of an impending regulation adversely affecting the fee structure for services covered by PIP benefits, even though the regulation was not effective until after the closing date, although there was no actionable fraud involved in the conduct of the sellers. However, the judge erred in his award of damages, which must be recalculated; although the judge properly utilized the benefit of the bargain rule, he improperly relied on expert accounting advice, and should have used the value of the business which the buyer himself had placed on it in reaching the purchase agreement. CORRECTIONS — WORKERS’ COMPENSATION 13-2-2654 Mattson v. State, Dept. of Corrections, etc., et al., App. Div. (6 pp.) Where corrections officer was attacked in the prison by another corrections officer, the court properly held that workers’ compensation was the exclusive remedy available to the victim and dismissed the State on summary judgment; respondeat superior did not apply in this case, since the State had no knowledge that the attacking officer would harm plaintiff or that an attack was imminent. ENVIRONMENT 17-2-2655 Swanson, et al. v. The N.J. D.E.P., et al., App. Div. (13 pp.) D.E.P. followed proper procedures and regulatory standards in granting developer certification under N.J.S.A. 58:11- 25.1 to construct 70 domestic wells to service individual residential dwellings in the developer’s subdivision, over the objections of adjoining property owners. Objectors’correspondence and submissions had been considered, and objectors were not entitled to a public hearing. EVIDENCE 19-2-2656 Olcott v. Kaji, et al., App. Div. (6 pp.) Testimony of plaintiff’s accident reconstruction expert was erroneously excluded as a net opinion, since it had a sufficient basis for consideration by the jury, and, since it is admissible, a factual question is created for the jury concerning automobile driver’s negligence, and the summary judgment granted to the defendant driver is reversed. FAMILY LAW 20-2-2657 Dorrell v. Borgese, et al., App. Div. (7 pp.) The ambiguities in R. 5:5-4 concerning the timing of the filing of motions regarding the “status of children” had the clear capacity to confuse the defendant, even if he had been represented by counsel, and the court reverses post-judgment order increasing defendant’s child support obligation on plaintiff’s motion, allowing defendant to have his day in court to address plaintiff’s application. INSURANCE — U.I.M. COVERAGE 23-2-2658 Maimone v. Liberty Mutual Ins. Co. v. IFA Ins. Co., App. Div. (9pp.) Since the injured plaintiff’s UIM recourse is defined by his own policy, and that policy defines UIM coverage as being governed by the “other insurance” clause of the policy, the “other insurance” provision of IFA’s policy (insuring the plaintiff’s own vehicle) renders the UIM coverage of Liberty Mutual’s policy (insuring the host vehicle) primary and IFA’s UIM coverage excess. [Approved for publication Jun. 24, 1997.] 23-2-2659 Ohio Casualty Ins. Co. v. Cappetti, App. Div. (6 pp.) Under the totality of the circumstances, and given the course of conduct by the insurer, which, after Longworth notification, never asserted any right to subrogation and constantly relied on the fact that there was no UIM exposure because it did not think that the verbal threshold was pierced, and at no time notified the defendant that the release should not be signed and never specifically notified the defendant of an intent to protect its subrogation rights, the judge correctly found that defendant could recover UIM benefits. LAND USE 26-2-2660 Berger, et al. v. Zoning Bd. of Adjustment of…South Brunswick, et al., App. Div. (23 pp.) (1) Judge incorrectly vacated the granting of a use variance for nursery school on the ground that the chairman of the zoning board was disqualified from participating in the variance hearing because of his membership in an unrelated church which supported the application; the court finds the potential conflict of interest too remote. (2) The board’s substantive determination to grant the application of an inherently beneficial use was neither arbitrary, capricious nor unreasonable, and is affirmed. NEGLIGENCE — ADDITUR 31-2-2661 Mikhail v. Davis, et al., App. Div. (6 pp.) Judge correctly analyzed the evidence and found that the $5,000 award for plaintiff’s personal injuries was “excessively low” and would “shock the conscience under all the circumstances,” and his granting of a $35,000 additur is affirmed. PARENT/CHILD 28-2-2662 I/M/O the Guardianship of M.J.G., et al., App. Div. (15 pp.) (1) Judge properly applied the statutory criteria and terminated natural mother’s parental rights to two of her children, finding, inter alia, that she had a long-term drug problem she was unable or unwilling to conquer, that her lifestyle was transient and unstable, and involved criminal activity, and that she had failed to comply with DYFS requirements for two of her other children, causing them to be placed with her mother; the mother had had five years to comply with attempts to help her, and had failed to make the necessary changes in her life. (2) Judge specifically questioned witnesses and considered the mother’s Battered Woman Syndrome and factored it into his decision in terminating her parental rights. (3) Judge’s former law firm’s relationship with mother’s step-mother’s corporation did not require his disqualification from presiding over the termination matter. PARTNERSHIP — PROOF OF SERVICE 02-2-2663 Wohlegmuth, et al. v. 560 Ocean Club, et al., App. Div. (13 pp.) Order denying vacation of default judgment on individual defendant is reversed, since service on this defendant and the partnership defendant was improperly made on secretary employed by partnership (for which defendant claims he was simply a part-time bookkeeper and accountant). Rules do not provide for an affirmative duty on the part of a party who was improperly served to take any protective action, however, it is possible in this matter that the defendant’s conduct after actually being notified of the action (albeit through defective service), may estop him from challenging the service. As there are factual issues regarding estoppel, waiver and laches, as well as plaintiff’s attorney’s alleged promises to dismiss the individual defendant or vacate the judgment against him, matter is remanded to Law Division for further proceedings. [Approved for publication Jun. 24, 1997.] PHYSICIAN/PATIENT (Fast Facts Order #7195) 29-2-2664 Orrico v. The Estate of Cricco, et al., App. Div. (5 pp.) Summary judgment was properly granted to doctors in this case for plaintiff’s failure to produce an expert report corroborating her malpractice claims; even though a piece of metal was found in plaintiff’s leg twenty-two years after varicose vein-stripping surgery, res ipsa loquitur did not apply, as there was no proof that the metal object had been left there during the surgery, or even that the presence of the object was the cause of plaintiff’s problems, rather than phlebitis or some other condition. TORTS — DEFAMATION 36-2-2665 Langford v. Murphy, et al., App. Div. (10 pp.) Summary judgment is affirmed in favor of all defendants in this defamation and false light case — involving the mysterious disappearance and eventual resurfacing of one of the plaintiffs — since, in this matter of public interest, the plaintiffs failed to prove either actual malice, or that the statements made by the prosecutor in his press conference about the case were made with a reckless disregard for the truth or falsity of the statements. FEDERAL COURT CASE CONTRACTS — SETTLEMENT AGREEMENTS 11-7-2666 Intl. Capital Markets Group, Inc. v. Susca, et al., U.S. Dist Ct. (15 pp.) In a case where plaintiff had allegedly agreed to dismiss the financially-troubled defendant if (1) defendant provided information concerning the background of his relationship with the other defendants in the case and (2) provided information that, although not assetless, he did not have the wherewithal to make a “substantial contribution” in the event plaintiff were to be successful in this collection litigation, the court grants plaintiff’s “motion to enforce settlement” — actually a motion to dismiss on the grounds that the matter has been settled — finding that the plaintiff acted in bad faith in continuing over the course of almost a year after the agreement was reached to raise the standards for defendant’s compliance, and that plaintiff is also barred by principles of equitable estoppel from refusing to dismiss the case. [Filed Jun. 18, 1997.] DAILY DECISION ALERT

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