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Vol. 2, No. 51 DECISIONS ISSUED MARCH 25, 1994 CONTRACTS 11-2-2926 Gillcott, Inc. et al. v. Robert Gilligan and Andrea Gilligan, et al., App. Div. (10 pp.) Where pollution-control equipment had to be installed at gas station that plaintiff leased from defendants, and defendants had obtained money from oil company for installation of equipment, trial court properly awarded plaintiff money for value of pollution-control equipment in a breach-of-contract suit, since by advancing the money for equipment installation, plaintiff conferred a benefit upon defendant duplicating benefit defendant had received from oil company. DEBTOR/CREDITOR 15-2-2927 Citizens First National Bank of New Jersey v. Knickerbocker Village Assocs., et al., App. Div. (12 pp.) Where defendant-land owners, holding a mortgage, sold land to defendant-Knickerbocker, which took a loan from plaintiff- bank on which it defaulted, and land owner’s mortgage was made subordinate to bank’s loan, trial court properly held that bank was not a joint venturer with Knickerbocker and therefore not entitled to priority, since bank loan agreement stated that bank and Knickerbocker had no relationship but as creditor-debtor. GOVERNMENT – CONTRACTS 21-2-2928 John Anzalone v. Westech Gear Corp and “John Doe,” et al., App. Div. (21 pp.)(Petrella, P.J.A.D.) Where plaintiff, a civilian who worked for the U.S. Navy, lost his left arm when he grabbed onto a moving wire to break his fall, and defendant-corporation had designed the equipment, trial judge erroneously applied the “contractor defense,” since the government specifications did not include safety specifications, which were totally left to defendant’s discretion. INSURANCE 23-2-2929 Timothy P. Heim, et al., v. Ivan F. Wolpaw, et al., and General Accident Ins. Co., App. Div. (6 pp.)(Brody, P.J.A.D.) Trial judge erred in awarding prejudgment interest from beginning of action until judgment was awarded, since amount awarded should only have been calculated from beginning of action until insurer deposited policy limits in court and offered it to insureds in settlement of the claims against insureds. 23-2-2930 Karanne Wolpaw v. General Accident Ins. Co. v. Parker, McCay & Criscuolo, App. Div. (11 pp.)(Brody, P.J.A.D.) (1) Trial court properly held that defendant-insurer wrongfully assigned defendant-law firm to represent all three insureds, since their interests as defendants were in conflict, but (2) trial court erred in holding that insurer was liable for the entire negligence-action judgment for improperly assigning counsel, since defendant’s liability should have been limited to the portion of plaintiff’s actual loss attributable to the breach. INSURANCE – CIVIL PROCEDURE 23-2-2931 Mark J. Molz and Susan Molz, et al., v. Jefferson Ins. Co. of New York, App. Div. (7 pp.) Where defendant never answered plaintiffs’ complaint, and default judgment was entered, trial court properly denied insurer’s motion to vacate default judgment, since insurer’s careless handling of legal correspondence and complaints served upon it was not excusable neglect. PUBLIC EMPLOYEES 33-2-2932 In the Matter of Elmer Brogel, Russell Hull, and Leo Azzaro v. County of Mercer, Dep’t of Public Works, App. Div. (6 pp.) Where three employees regularly collected pay for hours they did not work, Merit System Board went beyond the scope of its authority, where even though employees’ actions amounted to criminal conduct, board mitigated employees’ punishment because others at one time had been guilty of the same criminal conduct and since at least one supervisor had either condoned the conduct or abetted it. TORTS 36-2-2933 Shawn McMiller v. The Estate of Shantell Thompson, et al., App. Div. (4 pp.) Where plaintiff went to his sister-in-laws’ home to visit, and while trying to break up a fight he was seriously injured, trial court properly dismissed his complaint against sister-in-law, since he was a social guest, and a host has no duty of disclosure where the guest knows or has reason to know of the condition and the risk involved. CRIMINAL LAW AND PROCEDURE 14-2-2934 State v. John Earl Anderson, App. Div. (8 pp.) Where defendant was convicted of theft and his wife was convicted of receiving stolen property, trial court erred in allowing jury to consider evidence not admitted at trial, in finding defendant guilty. 14-2-2935 State v. Manuel Izaguirre, App. Div. (8 pp.)(Kestin, J.A.D.) Where two weeks after defendant’s murder conviction, court reporter’s trial notes were lost, and attorneys and judge reconstructed trial notes, trial court properly denied defendant’s motion for a new trial, since reconstruction of trial notes through prompt diligence of trial judge and attorneys complied with due process requirements.

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