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Vol. 2, No. 22 DECISIONS ISSUED FEBRUARY 7, 1994 ATTORNEY/CLIENT — CIVIL PROCEDURE 04-2-2572 Traci Frayne et al. v. Carlton Hotel Associates et al., App. Div. (7 pp.) Trial court order dismissing complaint with prejudice, due to plaintiff’s discovery failures, was reversed — and the case remanded for an expedited case management conference — where it appeared that attorney-client problems plaintiffs perceived as to their first two attorneys may have overshadowed their concern for the litigation or clouded their judgment, and when the plaintiffs’ third attorney entered the case, the trial court should have permitted him an opportunity to effect a prompt completion of discovery. DEBTOR/CREDITOR 15-2-2573 Abraham Schlussel v. Emmanuel Roth Co. and Novtex Corp. and Daniel Bird, et al., App. Div. (28 pp.) Where assets of tenant Emmanuel Roth Co. were transferred to co-defendant Novtex Corp., trial court correctly held that Novtex Corp. did not owe plaintiff landlord rental proceeds after transfer of assets, since at the time of the transfer, plaintiff was not a creditor under the Uniform Commercial Code Bulk Transfer Act as to future rents. DEBTOR/CREDITOR – CONTRACTS 15-2-2574 Seventy-Three Land, Inc. v. Maxlar Partners, et al., App. Div. (8 pp.) Trial court properly determined that a contract creditor of a partnership cannot sue a partner individually, before the assets of the partnership are exhausted, since the Uniform Partnership Law distinguishes between tort creditors and contract creditors and sets forth that only tort creditors may proceed against partners individually without first exhausting the partnership assets. FAMILY LAW 20-2-2575 Judith A. Bogusz v. Donald H. Bogusz et al., App. Div. (4 pp.) Where defendant husband in divorce action was and still is incarcerated in federal prison on a drug conspiracy conviction, and where plaintiff would have been entitled to award of alimony but for defendant’s incarceration and the attendant reduction in his earning ability , equitable distribution scheme awarding wife the marital residence was not disproportionate, since the disproportion — if any — depended on the value of defendant’s asphalt business, which had not been proved. 20-2-2576 Dennis Bryant v. Christine White, App. Div. (7 pp.) Although there were procedural anomalies in the trial court’s refusal — in child custody proceedings — to permit plaintiff to call rebuttal witnesses or to make a summation, any error was harmless, since plaintiff did not seek an opportunity to submit rebuttal testimony in court after the defense rested, and plaintiff did not take advantage of post-judgment opportunity offered by the trial judge to present a written summation. 20-2-2577 Judith L. Salaga v. Mark S. Salaga, App. Div. (5 pp.) Trial judge properly applied Child Support Guidelines in pendente lite child support case where both parents had legal custody but wife had actual physical custody of the children and therefore the primary responsibility of attending to their needs. INSURANCE – AUTOMOBILES 23-2-2578 Lizette Arencibia v. Julian Rosas, et al., App. Div. (12 pp.) Plaintiff who sustained back and neck injuries in a car accident satisfied the verbal threshold by presenting (1) doctor’s reports that indicated a limited range of motion in her neck and X-rays that demonstrated a reduction in the curvature of the spine, and (2) by setting forth evidence that the injuries had curtailed her athletic ability and made it difficult for her to perform her job as a payroll clerk. LAND USE 26-2-2579 Theresa Wostbrock v. Walter C. Wostbrock, et al., App. Div. (15 pp.) Where the only access to plaintiff’s land was the use of an alleyway allowed by easement, which provided that it could only be used for entrance and exit to the property, trial court erred in holding that the plaintiff had a prescriptive easement to use the alleyway for parking vehicles, since the plaintiff failed to demonstrate that the use of the alleyway for parking the vehicles was a hostile use. PHYSICIAN/PATIENT 29-2-2580 Shirley Goodheart et al. v. Sherwood A. Baxt, (7 pp. incl. dissent) Trial court did not abuse its discretion by denying defendant surgeon’s motion to dismiss medical malpractice complaint, since plaintiff established that failure to answer interrogatories was due to exceptional circumstances within the meaning of R. 4:23-59(a) — namely, her difficulty in obtaining an expert, problems with her continued treatment, defendant’s peculiar knowledge of the facts, and the recent vintage of the case which made an early trial date improbable. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-2581 Joan C. Niemczyk, et al. v. John E. Sudol, M.C. and Joseph Boodin, M.D. and Ellen Dorey, R.N., et al., App. Div. (13 pp.) In a medical malpractice action, trial court’s exclusion of patient’s expert testimony because the expert intended to rely on the opinion of others as to causation was harmless error, since (1) the patient offered two other experts who testified as to causation and (2) patient’s counsel failed to object to comments made by the respective doctors’ attorneys during summation. PUBLIC EMPLOYEES 33-2-2582 In the Matter of Marveinia Kitchen and the Department of Law and Public Safety, App. Div. (8 pp.) Where worker following the incorrect advice of the department chose the wrong layoff options during department reorganization, which choice delayed her promotion for six months, department properly determined that the worker was not entitled to back-pay entitlements, since the department’s incorrect advice was not given in bad faith, and once department learned of the error, it took immediate steps to rectify the situation. REAL ESTATE – CONTRACTS 34-2-2583 Kate High v. Tectonic Inspection Co. and Robert Wisniewski and Emanuel Papamanolis and Tina Papamanolis, App. Div. (8 pp.) Where shortly after purchasing the home, property owner’s septic tank overflowed, damaging the home and furnishings, trial court properly held that a home inspector has a duty to determine whether a particular property is serviced by city sewerage or a private septic system, since inspector’s lack of disclosure deprived the property owner of the opportunity to have the septic system inspected, and the deficiency corrected, before the closing. CRIMINAL LAW AND PROCEDURE 14-2-2584 State v. Richard Alicea, App. Div. (5 pp.) Although it was error for trial judge to inform the jury that defendant’s alleged co-conspirator had pleaded guilty to conspiracy and distribution of heroin, error was harmless since defendant’s counsel told jury of the guilty plea during his opening statement and then inferred the co-conspirator’s guilt in his closing statement, and jury must be presumed to have followed judge’s curative instruction.

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