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Vol. 2, No. 54 DECISIONS ISSUED MARCH 30, 1994 ATTORNEY/CLIENT – CIVIL PROCEDURE 04-2-2959 Fausto Piedra v. Baldecchi Co. and Schianoe, App. Div. (4 pp.) Where plaintiff’s counsel did not move to reinstate complaint for almost a year after it was dismissed for lack of prosecution, trial court erred in not reinstating complaint, (1) since plaintiff was entirely blameless, (2) and employee of attorney’s office inadvertently had closed the file, and counsel moved to reinstate the complaint immediately upon learning it had been dismissed. 04-2-2960 Ruth Depinho v. City of Newark, et al., App. Div. (3 pp.) Where first counsel — retained to represent plaintiff in her lawsuit for injuries sustained when she fell on a sidewalk in Newark — informed plaintiff that he could not represent her because of a conflict of interest, and she obtained new counsel, trial court properly dismissed complaint filed after statute of limitations had run, since record did not support a finding of sufficient reasons to allow plaintiff to file out of time. CIVIL RIGHTS – CIVIL PROCEDURE 46-2-2961 Ellen E. Young v. Peter L. Klausener and Wolf Haldenstein Adler Freeman & Herz, App. Div. (9 pp.) Where plaintiff’s suit for sexual harassment filed in the federal district court in New York was dismissed because the statute of limitations had run, and plaintiff filed same suit in New Jersey under LAD, trial court properly dismissed complaint, since earlier dismissal operated as an adjudication on the merits. CONTRACTS – REAL ESTATE 11-3-2962 John Jackson and Tracey Jackson v. Manasquan Savings Bank, Law Div. (14 pp.) Where plaintiffs sued for breach of contract when — even though they were the highest bidders for real estate at a Sheriff’s sale — defendant bank agreed to sell property to other bidder, trial court properly held that no contract existed between plaintiff and defendant for property sale since (1) advertisement that bank placed in newspaper was not an offer, but was just an invitation to public to inquire as to property purchase and (2) no writing existed memorializing agreement terms. [Approved for publication on March 28, 1994.] INSURANCE – CIVIL PROCEDURE 23-3-2963 Alex Moslimani and Deborah Jean Moslimani v. Union Valley Corp, et al., Law Div. (6 pp.) Plaintiff creditors were entitled to information on funds available from defendant debtor’s general liability policy, after bankruptcy court in Chapter 11 proceeding ruled that creditors’ potential recovery was limited to proceeds available from debtor’s insurance policy, since information sought was not confidential and was needed for settlement process. [Approved for publication March 28, 1994.] INSURANCE – AUTOMOBILES 23-3-2964 Liberty Mut. Ins. Co. v. Selective Ins. Co., Law Div. (8 pp.) Where driver was seriously injured when his car collided with a commercial vehicle that had excess coverage, trial court properly held that an excess carrier is liable as an “insurer” under N.J.S.A. 39:6a-9.1 when the primary carrier exhausts its limits. [Approved for publication March 28, 1994; Appellate Division decision was previously reported in Feb. 28, 1994 Alert.] LANDLORD/TENANT 27-2-2965 Donna Dickinson v. Kathleen Kennedy, App. Div. (4 pp.) Where defendant-sublessee leased one-half of house from plaintiff-sublessor, and sublessee deducted money from her rental share because she was not able to use garage for storage as provided in sublease agreement, and she gave notice that she would be moving out by November 1, (1) trial court properly held that sublessee owed sublessor money for back rent, since sublessee did not move out until November 15, and (2) judge properly reduced amount sublessee owed, since judge found that sublessee was not allowed to use garage storage area. LAND USE 26-2-2966 Hovsons, Inc. v. The Zoning Board of Adjustment of Brick Township and Lions Head South Ass’n Inc., Township of Lakewood, App. Div. (10 pp.) Trial judge improperly overturned board’s denial of plaintiff’s application for a use variance to build a nursing home in a residential zone in Brick Township, since (1) board’s decision was not arbitrary or capricious and (2) trial judge cannot substitute his judgment for that of the board. REAL ESTATE 34-2-2967 American Mortgage Banking, v. Roy Hackenberg and Royal Appraisal Services, Inc., App. Div. (10 pp.) Where defendant’s overstated house appraisal caused plaintiff monetary losses in connection with mortgage loan given in reliance on defendant’s appraisal, trial court properly held that sufficient proof existed to establish that defendant’s appraisal was negligently done, since, even absent expert testimony, admission of Federal Home Loan Bank appraisal standards established standard of care that defendant breached. WORKERS’ COMPENSATION 39-2-2968 Charles Green v. Custodis-Hamon and Commissioner of Labor, et al., App. Div. (21 pp.) Where plaintiff-employee’s widow sued defendant employer for exposure to toxic substances which caused plaintiff’s death, and employee had worked for several companies, workers’ compensation judge erred in awarding total disability against employer, since employee failed to prove that his disease was related to an appreciable degree to his occupational exposure while working for that particular employer. CRIMINAL LAW AND PROCEDURE 14-2-2969 State v. Patricia S. Peters, App. Div. (5 pp.) Where defendant was convicted for driving while under the influence in municipal court, even though trial court erred when it failed to enter a judgment of conviction and when it stayed execution of penalties, appellate court from a review of the record held that there was sufficient evidence in record to support DWI conviction and penalties.

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