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Vol. 2, No. 43 DECISIONS ISSUED MARCH 15, 1994 CIVIL PROCEDURE 07-2-2838 Barbara M. Stein and David Stein v. Tony’s Brookside Pub et al., App. Div. (4 pp.) Where defendants’ notice of rejection of arbitration award and demand for trial de novo were timely filed with the court with appropriate fee, but service on plaintiff’s attorney was seven days late, there was substantial compliance with R. 4:21A-6, and trial judge erred in confirming the award. COMMERCIAL TRANSACTIONS 08-1-2839 Maplewood Bank and Trust Company v. Sears, Roebuck and Co. et al., Sup. Ct. (1 pp.) Priority given to installer of fixtures in real property as a purchase money security interest holder under the New Jersey Commercial Code does not apply to the proceeds of a judicial sale of the property instituted by a purchase money mortgagee. [625 N.J. Super. 25 (1993) affirmed.] CONTRACTS 11-2-2840 Philip S. Kurnit v. David V. Habif et al., App. Div. (3 pp.) Patient who was told to arrive at medical facility at 6:00 p.m. had no contractual right to be seen at 6:00 p.m. or within a short time thereafter, absent proof that time was of the essence in the agreement. FAMILY LAW 20-2-2841 Paul R. Melletz v. Elsa W. Melletz, App. Div. (13 pp.) Anti-cohabitation provision in settlement agreement, incorporated into final judgment of divorce, purporting to suspend husband’s alimony obligation during any period of time in which “the wife cohabits with a male unrelated to her by blood or marriage” is unenforceable, since payor spouse may not — through loss or suspension of statutory alimony — control the social activities of the payee, but where parties bargained for the clause, they must be given an opportunity to renegotiate the agreement or to submit the matter for adjudication. INSURANCE 23-2-2842 Rutgers Casualty Insurance Company v. Chris Vassas, App. Div. (5 pp.) In insurer’s action for declaratory judgment that it had no obligation to provide underinsured motorists coverage, trial judge should have granted insurer’s motion for summary judgment under holding of Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988), since motion to confirm an arbitration award and entry of judgment against underinsured tortfeasor precludes subrogation claim to the same extent as a release. INSURANCE AUTOMOBILES 23-3-2843 Lisa Stackhouse, et al. v. Talley, et al., Law Div. (22 pp.) In automobile injury trial, judge determined that plaintiffs did not meet verbal threshold requirements, since (1) first plaintiff’s medical records indicated that she only sustained soft tissue injuries and her personal life was not significantly affected (2) second plaintiff’s medical records revealed that she sustained only minor back injuries and (3) third plaintiff’s medical records contained no objective proof of serious injury, he did not miss any time from school, and he continued to work at a job which required heavy lifting. MUNICIPAL LAW ENVIRONMENT 30-2-2844 Riverdale Quarry Co., Inc. v. NJDEPE, App. Div. (8 pp.) Quarry company applying for exemption from Freshwater Welands Protection Act may bring declaratory judgment action in Superior Court to prove that municipality had a site plan application approved before the effective date of the act, where copies of planning board minutes and site plans were alleged to be lost. PHYSICIAN/PATIENT 29-2-2845 Susan Turk v. Pineland Associates, Inc., et al., App. Div. (10 pp.). Expert testimony required, even in res ipsa case, to establish causation, deviation from accepted medical practice, and lack of informed consent, where physician left sutures inside body. WORKERS’COMPENSATION 39-02-2846 Michael R. Mekenian v. Fair Haven Board of Education, App. Div. (16 pp.). Award for partial permanent neurological disability remanded to judge of compensation for further findings of fact and conclusions of law, where physician’s opinion was not based on evidence, no medical testimony addressed patient’s primary neurological complaint, and judge’s decision was conclusory.

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