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Vol. 2, No. 24 DECISIONS ISSUED FEBRUARY 9, 1994 ARBITRATION AND MEDIATION 03-2-2602 Phyllis T. Mazza v. Arthur J. Del Pizzo, App. Div. (5 pp.) Where defendant’s request for adjournment of arbitration was denied and defendant and counsel did not appear at proceeding, trial court erred in failing to vacate the arbitration award, since the arbitrators were guilty of misconduct in not postponing the hearing. DEBTOR/CREDITOR – BANKING 15-2-2603 Chase Manhattan Financial Services, Inc. v. Herman Epstein and Roberta C. Epstein, et al., and Rebeil Consulting Corp., et al., App. Div. (5 pp.) Where second mortgagee’s counsel recorded second mortgage 15 months after it was issued and after first mortgagee brought foreclosure action, Chancery Division properly dismissed second mortgagee’s action against its counsel, when trial judge found that the law firm was merely negligent and did not harm second mortgagee; even if the second mortgage was timely filed, second mortgagee would not have received any payment because no proceeds were left after first mortgagee was satisfied. FAIR HOUSING 41-2-2604 Borough of Alpine v. New Jersey Council on Affordable Housing, App. Div. (9 pp.) Where borough wanted its affordable housing obligation reduced to zero units because golf course supposedly was not “suitable” for construction of affordable housing since the course’s club membership had no intention of selling its land, council properly refused borough’s application, since the golf course property was “vacant land” as defined in the regulations and as a result was suitable for inclusion in calculating the borough’s fair-share obligation. INSURANCE – AUTOMOBILE 23-2-2605 Rhett Krobatsch, et al. v. Joseph Mendoker, Liberty Mutual Insurance Co., et al., App. Div. (9 pp.) Trial court erred in determining that the insurer had breached its fiduciary duty to insured in failing to properly advise them about increased UM/UIM coverage, since absent any specific request for coverage or additional information insurer had satisfied its duty under the New Jersey Full Insurance Act by mailing the insurance buyer’s guide to insured. INSURANCE – CIVIL PROCEDURE 23-2-2606 Canal Insurance Co. v. F.W. Clukey Trucking Co., App. Div. (3 pp.) Where, in order to protect privileged information, insurer requested that trial court perform an in camera inspection of claims file to ascertain if there was any further information to which insured was entitled under notice to produce, trial court erred in dismissing insurer’s declaratory judgment complaint, since insurer is entitled to have trial court determine if notice to produce is overbroad. NEGLIGENCE 31-2-2607 Gerald Daus and Carol Ann Daus v. Jake Marble and Dane Marble v. Travelers Insurance Co., App. Div. (13 pp.) Where co-employee’s 11-year-old son, who had visited worksite numerous times when co-employee baby-sat for him, operated a forklift at the worksite, and knocked down a stack of pallets striking and injuring employee Daus, trial court erred in dismissing claims against co-employee, since it was questionable whether co-employee’s babysitting his son on the job was work-related activity that would make him personally immune from suit under the fellow-servant rule. PHYSICIAN/ PATIENT – EVIDENCE 29-2-2608 Robert Bundy v. William K. Lee, M.D., App. Div. (8 pp.) Where patient’s medical expert was a Ph.D. professor of medical ethics who testified that defendant doctor was required under the duty of informed consent to tell a patient who could not afford necessary heart-related surgery that the patient could undergo the surgery at a certain hospital for little or no cost, the professor of medical ethics was a qualified expert, since he had sufficient knowledge of the professional standard relating to the trial issue to permit him to offer an opinion. 29-2-2609 William C. Smith v. Francis J. Pizzi, M.D., App. Div (11 pp.) Where decedent plaintiff sought a new trial only for damages and a judgment n.o.v. because defendant’s medical expert allegedly offered a “net opinion” as dealt with under Evid. R. 56(2), trial court properly denied plaintiff’s post-trial motions, since defendant’s doctor was qualified to offer an opinion concerning the proximate cause of plaintiff’s death because the bases for his opinion relating to plaintiff’s lack of symptoms was data obtained from plaintiff’s hospital records. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-2610 Griselda Suazo Scott and Robert Scott v. Richard H. Bodner, M.D., et al., App. Div. (20 pp.) Where plaintiff’s case was presented in a highly confrontational manner–for example, plaintiff’s counsel would resume a prejudicial line of questioning with a witness that the judge had just ruled improper, creating a hostile relationship between the trial judge and plaintiff’s counsel–trial judge erred in not declaring a mistrial, since the entire trial contained evidence that clouded the propriety of the jury’s decision. TORTS 36-2-2611 Robert Fontanella and Eileen Fontanella v. Michael Granata, Roseway Liquors, et al., App. Div. (4 pp.) Where defendant Granata, who had been drinking and acting boisterous for two hours before he struck plaintiff as plaintiff entered defendant tavern, trial court properly held that the tavern owner was partially liable for failing to use proper care to protect plaintiff-business invitee, since it was reasonably foreseeable that third-party Granata might assault a tavern invitee.

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