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Vol. 2, No. 70 DECISIONS ISSUED APRIL 22, 1994 BANKING – CONTRACTS – CIVIL PROCEDURE 06-2-3113 James H. Hunter, on behalf of himself and all others similarly situated v. Greenwood Trust Co. App. Div. (17 pp.) Where plaintiff/credit cardholder sued defendant/credit-card issuer, claiming the late fees that he was charged when he did not pay the minimum monthly payment timely violated N.J.S.A. 66:8-2 and -19, and N.J.S.A. 17:16C-50 and -54, trial court properly dismissed plaintiff’s complaint, since the National Bank Act preempted plaintiff’s state claims. 06-2-3114 Marc Sherman, on behalf of himself and all others similarly situated v. Citibank (South Dakota), N.A., App. Div. (17 pp.) Where plaintiff/credit cardholder sued defendant/credit-card issuer claiming that the double late fees he was charged for not paying minimum monthly payments timely violated N.J.S.A. 66:8-2 and -19, and N.J.S.A. 17:16C-50 and -54, trial court properly dismissed plaintiff’s complaint, since the National Bank Act preempted plaintiff’s state claims. FAMILY LAW 20-2-3115 Janice Swierczek v. Paul Swierczek, App. Div. (6 pp.) Where husband — who acknowledged service of equitable distribution agreement, but did not file any opposition and neither he nor counsel appeared at hearing — opposed wife’s garnishment proceedings for failure to pay alimony and sought to vacate final divorce judgment, trial court properly dismissed husband’s motion but modified divorce judgment pursuant to husband’s request, since even though husband sat on his rights, divorce judgment could be modified to ensure that everything was done properly. FAMILY LAW – REAL ESTATE – CONTRACTS 20-2-3116 Maria Conforti v. George Guliadis, App. Div. (6 pp.) Where pursuant to separation agreement husband received real estate in which family-run business was located, and wife received business and agreed to pay husband monthly rent, trial court properly dismissed wife’s complaint to reform lease provision that permitted husband to sell building free of lease, provided that wife would have first refusal option for an unspecified period of time, since (1) clause was specifically bargained for, and (2) husband and wife and their respective attorneys participated in its drafting. GOVERNMENT 21-2-3117 Warnock Automotive Group, Inc. v. State of New Jersey, Dep’t of the Treasury, General Serv. Admin., Div. of Purchase and Property, App. Div. (6 pp.) Where plaintiff — who was a successful bidder for most of the trucks and vans the state was purchasing under a contract — protested award of some purchases to other bidders, court held that even though division properly dismissed plaintiff’s complaint, it erred in not holding a hearing to determine if Meadowlands Ford, also a successful bidder, was one of the franchise dealers that the Legislature specifically wanted to exclude from direct competition with other franchise dealers in the state, under N.J.S.A. 56:10-8, since plaintiff’s objection constituted a prima facie case of an illegal practice. INSURANCE 23-2-3118 Robert Ruales v. James J. Nicoletti and The Market Transition Facility of New Jersey (MTF), et al., App. Div. (7 pp.) Where plaintiff/insured paid defendant/insurance agent-broker for insurance coverage on a Mazda MPV, and during a lapse in coverage — because broker gave insured incorrect papers — plaintiff’s van was vandalized and MTF refused to cover the damage, trial court properly (1) granted plaintiff’s summary-judgment motion against broker, since the broker failed to process timely a new application or give any notification to the insurer about the new van, and (2) dismissed claim against MTF because, since there was no coverage, the MTF was not liable for the loss. INSURANCE – AUTOMOBILES 23-2-3119 Sheline Snowden v. Passaic, Clifton Dri-Ur-Self/Hertz Rent a Car, Inc., et al., App. Div. (6 pp.) Where plaintiff injured her back in an automobile accident, trial court erred in dismissing plaintiff’s complaint for failure to meet verbal-threshold criteria, since (1) muscle spasms and regular documented pain occurring three years after the accident clearly met the objective credible medical-evidence standard, and (2) plaintiff’s difficulty in sitting, bending and lifting and performing her daily activities, which was supported by credible evidence, met the serious impact standard. LANDLORD/TENANT – CONTRACTS 27-2-3120 Inmar Assocs., Inc. v. Tiffany Professional Prods., Inc. and Arthur Yale, App. Div. (10 pp.) Where defendant Yale guarantied defendant lessee’s six-year-lease agreement with plaintiff lessor, which lessee breached after one-and-a-half years, and plaintiff lessor sued defendant lessee and defendant Yale for damages, trial court erred in limiting amount of attorneys’s fees that defendant Yale had to pay on the basis that to award the full amount would be like assessing a penalty against defendant Yale for litigating the matter, since a full award was just implementation of the parties’ original agreement about allocating costs and expenses. WORKERS’ COMPENSATION 39-2-3121 Edward Smith v. Frank L. Painting Co., et al., and X-Sel, Inc., App. Div. (9 pp.) Where plaintiff painter injured his back when he fell on stairs, while first working for defendant Frank L. Painting Co. and his back ailment became worse when he subsequently worked for defendant X-Sel, Inc., of which plaintiff was president, workers’ compensation judge correctly determined that Frank L. Painting Co.’s motion to implead X-Sel, Inc. was timely filed, since N.J.S.A. 34:15-51 — which requires that petition be filed within two years after the date on which the accident occurred — did not apply, because there was no single occurrence that aggravated plaintiff’s condition, but only sporadic work activity which gradually worsened his injury. CRIMINAL LAW AND PROCEDURE 14-2-3122 State v. Renard Dugue, App. Div. (5 pp.) Where defendant was convicted of aggravated assault on a police officer, trial court erred in not allowing the jury to consider the issue of simple assault under N.J.S.A. 2C:12-1a, since the only distinction between the offense of simple assault and that of aggravated assault is the status of the victim, not the injuries inflicted upon the victim. 14-2-3123 State v. Julio Fuentes, App. Div. (5 pp.) Where Pretrial Intervention Director and prosecutor both approved defendant’s PTI application, after he was convicted of possessing cocaine worth about $60, trial court erred in denying defendant’s PTI application, since judge did not hold that prosecutor’s approval of defendant’s PTI application was a patent and gross abuse of discretion, the grounds upon which a judge can overrule a PTI determination. 14-2-3124 State v. Charles Philipone, App. Div. (7 pp.) Where defendant was convicted of second-degree robbery and fourth-degree contempt for violating a restraining order protecting his former girlfriend, trial court erred in not charging defendant with the separate offenses of theft and assault as lesser-included offenses, since facts warranted that they be charged as lesser-included offenses, which was further supported by trial judge’s statement that robbery charge did “not truly reflect what the situation was.”

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