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VOL. 3 NO. 75 DECISIONS RELEASED APRIL 21, 1994 ATTORNEY/CLIENT 04-3-5465 Stuart Kohn, et al. v. Joseph P. Schiappa, et al., Law Div. (8 pp.) Since adoption is a noneconomic matter and plaintiffs cannot be awarded monetary damages that they otherwise would have recovered if their attorney was not negligent, and would therefore be left without a remedy if they could not assert and prove the mental anguish and distress purportedly caused by counsel’s wrongful disclosure of confidential information in adoption proceedings, they are entitled to pursue their emotional distress claim, and summary judgment is denied to attorney. [Approved for publication April 20, 1995.] CONTRACTS — ASSIGNMENTS 11-2-5466 Isaac Weber v. Theodore Failla, et al., App. Div. (6 pp.) An obligor of an assignee is entitled to set off a debt owed to him by the assignor where both the assignment and the assignor’s debt to the obligor derive from a single contract between the obligor and the assignor, and therefore summary judgment was improvidently granted to assignee. CONTRACTS — BIDDING 11-2-5467 Design Interior Group, Inc. v. Rowan College of New Jersey, et al., App. Div. (6 pp.) Dismissal of plaintiff’s complaint for damages based on the rejection of its bid to supply furniture to college was proper since bid was nonconforming, and a civil suit is not the proper forum for the plaintiff’s claims for fraud and bid-rigging. EVIDENCE 19-2-5468 Fernando Alvarez, et al. v. Edifa, Inc., et al., App. Div. (4 pp.) In a negligence case where plaintiff was injured jumping off a tavern stage in celebration during a soccer broadcast, the trial judge properly excluded from evidence a photograph showing people on the stage, despite tavern’s testimony that they did not allow patrons on the stage, since the photograph added little, if anything, to the testimony presented. FAMILY LAW 20-2-5469 Lorraine Murphy v. Terrence Murphy, App. Div. (15 pp.) Post-judgment divorce order changing joint custody to sole custody with wife, and allowing wife to relocate to Virgin Islands subject to specified visitation rights of husband, was proper since judge substantially complied with proper statutory standards of the best interest of the children and his decision was based on sufficient credible evidence, including history of spousal abuse, husband’s violation of restraining order, and the need for neutral places for visitation. 20-2-5470 Lorenzo DeVita v. Ludmilla DeVita, App. Div. (10 pp.) The trial judge erred in awarding husband $150,000 from the proceeds of the sale of a marital residence before dividing the balance, since, although that amount was contributed by the husband from the sale of his pre-marital home, his execution of a deed to the new home to himself and his wife as joint tenants by the entirety constituted a gift of the premarital funds, and proceeds should have been split equally. INSURANCE 23-2-5471 Allstate Ins. Co. v. Alfio Munafo, et al., App. Div. (5 pp.) Where brother of pizza parlor owner was injured in an auto accident while returning to the shop in the delivery van after a delivery, the van’s insurer is responsible for providing the brother with PIP benefits since the van was a “commercial vehicle” and not an “automobile.” INSURANCE — VERBAL THRESHOLD 23-2-5472 Walter Buzby v. Ndem U. Ndem, App. Div. (4 pp.) The motion judge erred in concluding that plaintiff did not meet the requirement of showing objective proof of disability under the verbal threshold since there was a showing of spasm one year after the accident and disc bulges were confirmed in an MRI, and discrepancies in doctors’ testimony was for the jury to reconcile. LAND USE — MT. LAUREL 26-2-5473 In the Matter of the Twp. of Denville, App. Div. (4 pp.) The Council on Affordable Housing’s order directing the township to transfer property to the housing authority, which does no more than fulfill the purpose of the acquisition that the township had already made and accomplish what it had already agreed to do, despite the invalidity of a residency provision, was a reasonable exercise of COAH’s enforcement powers and is affirmed. NEGLIGENCE 31-2-5474 Koickal Abraham v. Sussame Abraham, et al., App. Div. (7 pp.) Although commercial property owners are liable for negligent maintenance of abutting sidewalks, plaintiff’s action for injuries sustained on defendant’s property was properly dismissed since this rule does not apply to undeveloped, vacant land, even though it may be zoned “commercial. PUBLIC EMPLOYEES 33-2-5475 Nicholas D. Coratti v. Bd. of Trustees, PERS, App. Div. (9 pp.) Board decision denying plaintiff a change to a veteran’s retirement allowance from a service retirement allowance was proper since plaintiff did not qualify as a “veteran at the time of his retirement and since, without the credit for his military service, he did not meet the requirement of 20 years service to qualify for the change. REAL PROPERTY — CONTRACTS 34-2-5476 Ronald Patetta, et al. v. Larken Assoc., App. Div. (8 pp.) In purchasers’ suit for return of deposit, summary judgment was improperly granted to developer/seller on the basis that new home purchasers had defaulted in not submitting their mortgage application to developer, since it was clear that the developer was unwilling to grant the purchasers a mortgage unless they discharged their outstanding tax liens and judgments, which they could not do. TORTS 36-2-5477 Brian Grandison, et al. v. Radix Elementary School, et al., App. Div. (5 pp.) In an action for damages for injuries sustained by a child in a playground accident, the motion judge correctly granted defendants summary judgment since plaintiff failed to establish that child’s injury constituted a permanent loss of a bodily function, and therefore the complaint was barred by the Tort Claims Act. 36-2-5478 Daniel H. Wright, et al. v. Union County Utilities Authority, et al., App. Div. (7 pp.) Since plaintiff was without counsel for more than 90 days after the accident, and was unaware of a possible third party action or that he had to file notice against utilities authority within 90 days, and the case against the authority presented complex issues, the trial judge erred in finding that plaintiff failed to show “sufficient reasons for allowing the filing of a late notice of claim, especially since there was no showing that utilities authority would be prejudiced by late filing. 36-2-5479 Danielle Liautaud v. Nancy King, et al., App. Div. (13 pp.) Since dancer failed to establish a prima facie case showing that dance instructor’s conduct met the elevated threshold required to support the tort of “outrage, reversal of jury verdict in dancer’s favor is required. WORKERS’ COMPENSATION — TORTS 39-2-5480 Lynn McIntosh, et al. v. Patrolman John De Filippo, et al., App. Div. (11 pp.) (1) Where, under the terms of a cooperative agreement River Vale police officer provided emergency dispatch services to Old Tappan ambulance squad, the officer was a co-employee of a first-aid worker and the first-aid worker’s action against the officer for dog-bite injuries sustained at the scene to which she was dispatched (alleging that the oficer was negligent in not mentioning that biting dogs were at the scene) is barred by the fellow-employee tort immunity under the Workers’ Compensation Act, and summary judgment in officer’s favor was proper. (2) River Vale, however, was not entitled to immunity for the officer’s alleged negligence while he functioned as a special employee of another, and summary judgment for the township is reversed. CRIMINAL LAW AND PROCEDURE 14-2-5481 State v. Edward Haraz, App. Div. (12 pp.) Where prosecutor’s cross-examination of defendant was argumentative and compelled defendant to characterize the testimony of other witnesses, forcing the defendant to characterize them as liars, such questioning was improper and denied defendant a fair trial, requiring reversal of his convictions. 14-2-5482 State v. Leonard R. Avena, App. Div. (16 pp.) Although a judge cannot act as judge and advocate in the same case, since the judge here, in the absence of a municipal prosecutor, asked questions of witnesses, but did so in a fair and impartial manner, and did not act as a prosecutor or cross-examine witnesses, there was no error. 14-2-5483 State v. Joseph Perrotte, App. Div. (10 pp.) Since there were many inconsistencies in the prosecutor’s case, and the evidence was closely balanced, the error here, in admitting evidence of prior incidents with the inference that defendant was linked to those incidents, could have tipped the scales and was plain error requiring reversal. -

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