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Vol. 2, No. 67 DECISIONS ISSUED APRIL 19, 1994 DEBTOR/CREDITOR 15-2-3085 Diane M. Fliegel, et al., v. Vincent Sheeran and Dallas Sheeran and Chase Manhattan Personal Financial Servs. Inc., et al., App. Div. (8 pp.) Where defendants personally owed plaintiff money, and defendants, as principals in joint venture, owned land that plaintiff tried to sell at sheriff’s sale, chancery court properly dismissed plaintiff’s lien, since pursuant to N.J.S.A. 42:1-8, specific property of a joint venture is immune from a judgment lien to satisfy the debt of a joint-venture member. 15-2-3086 Midlantic National Bank/North v. Kenneth F. O’Connor, et al. and KFO Assoc., App. Div. (11 pp.) Where plaintiff bank sued defendant debtors, in corporate capacity and individually, for balance due on two promissory notes, trial court properly dismissed complaint against debtors individually, since the continuing guaranty was orally modified so that debtors were not individually liable. 15-2-3087 Suburban Mortgage Assocs. Inc v. New Community Urban Renewal Corp., App. Div. (5 pp.) Where plaintiff, mortgage servicing agent, sued defendant debtor for back fees on mortgage that defendant had obtained to build a nursing home in Newark, trial court properly dismissed debtor’s counterclaim that broker had breached its fiduciary duty by not putting reserve fund in an interest-bearing account, since broker adhered to escrow account guidelines, which did not require that funds had to be placed in an interest-bearing account. ENVIRONMENT – TORTS – LABOR AND EMPLOYMENT 17-2-3088 Josephine Smith v. Jersey Central Power & Light, et al., and Raymark Indus., et al., App. Div. (9 pp.) Where plaintiff died from asbestos-related illness from on-the-job exposure, trial court properly held that worksite defendants had no duty to monitor air quality and that, even if they had, there was no evidence to show that worksite environments contained unacceptable levels of asbestos dust, since plaintiff had failed to show that worksite defendants were aware of danger imposed by asbestos while plaintiff was working at the respective facilities. FAMILY LAW – PARENT/CHILD 20-2-3089 In the Matter of the Guardianship of D.M.M., M.K.G. and A.E.G., App. Div. (9 pp. incl. concurrence) Where, in considering the termination of parental rights, there were recurring problems of violence between parents, drug and alcohol abuse and mother had AIDS, trial court properly (1) took into account that the mother had AIDS, since it was not the sole reason, but a factor to be considered because the mother would not be able to properly care for the children, (2) decided that it was in the best interest of the children to maintain some contact with their mother, since all parties agreed. LABOR AND EMPLOYMENT 25-2-3090 Pamela D. Galster v. Bd. of Review, Dep’t of Labor, App. Div. (4 pp.) Where, during a disagreement between plaintiff employee and supervisor, employee stated that she was giving her verbal resignation, but she later stated that she did not want to resign, and employer determined that person with employee’s attitude should not work for company, department erred in determining that employee voluntarily quit, since evidence supported that employee withdrew her resignation and she was fired from company. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3091 Daniel H. Tuckman, et al. v. Michael Brown, M.D., et al. and “Unknown” Deblois, M.D., et al., App. Div. (6 pp.) Where plaintiffs sued defendant doctors for medical malpractice for failure to diagnose testicular torsion, trial judge properly determined that jury was not tainted by then President Bush’s televised statements that there were too many frivolous medical malpractice cases, since jurors stated that president’s remark would not affect their ability to be impartial. WORKERS’ COMPENSATION 39-2-3092 Debi Israel v. Acme Markets, Inc., App. Div. (13 pp.) Where plaintiff employee was asked to commute from Passaic to Staten Island and she told supervisor that the increased driving aggravated a pre-existing knee condition where she could not walk or drive, workers’ compensation judge erred in determining that the employee travel constituted a “special mission ” and was remanded, since the record did not contain sufficient information for the judge to make a proper determination. 39-2-3093 Virginia Schmitt v. Mayfair Supermarkets, Inc., App. Div. (7 pp.) Where plaintiff employee while lifting and moving heavy food boxes in defendant’s deli department suffered right and left inguinal hernias on separate occasions, and she experienced severe pain after the second, workers’ compensation judge erred in holding that her condition was not a permanent disability under N.J.S.A. 34:15-36, since doctor’s testimony demonstrated that a work-related injury had occurred. CRIMINAL LAW AND PROCEDURE 14-2-3094 State v. Tori M. Nobles, App. Div. (8 pp.) Where defendant was convicted of second-degree possession of a weapon for an unlawful purpose, trial court properly did not charge jury with N.J.S.A. 2C:39-5c as a lesser-included offense of N.J.S.A. 2C:39-4a, since (1) the crime did not meet the requirements set forth in State v. Ingram, 98 N.J. 489, 500 (1985), to be a lesser-included offense, and (2) a judge is not required to search the record to see if a combination of the facts could sustain a lesser-included charge. 14-2-3095 State v. Mohammed A. Oudeh, App. Div. (7 pp.) Where defendant was indicted for second-degree reckless manslaughter and two counts of fourth-degree reckless assault by auto, and two weeks later defendant in a pro se municipal court appearance pled guilty to reckless driving, trial court erred in dismissing the indictment when court held that double jeopardy barred the reckless manslaughter prosecution because reckless driving is a lesser-included offense of reckless manslaughter, since the record was incomplete to determine whether defendant had actual knowledge of the indictment when he pled guilty, if this were the case defendant could not claim double jeopardy.

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