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Vol. 2, No. 126 Decisions Released July 13, 1994 AUTOMOBILES 05-2-3745 Colleen Brennan v. Gertrude Fortgang and Meldon v. Stultz III, App. Div. (3 pp.) Verbal threshold does not apply to 19-year-old plaintiff because at the time of the accident she did not own an automobile, and though she lived with a parent who did own an automobile, parent had allowed his policy to lapse; even though auto insurance is mandatory, law does not treat parent as if he had maintained a policy and not elected against the verbal threshold. 05-2-3746 Richard C. Tietjen v. Carie A. Bajkowski, et al., App. Div. (4 pp.). Summary judgment against plaintiff reversed pursuant to Oswin on the basis of expert’s report of chronic spasm and corroborating loss of cervical and lumbar lordosis, from which a jury could conclude satisfaction of threshold under types 6,7, or 8. CIVIL PROCEDURE 07-2-3747 Trump’s Castle Associates v. Joseph Tallone, et. al, App. Div. (8 pp.). Where non-party casino was subpoenaed by plaintiff, a competitive casino, to provide its marketing techniques and customer procurement methods to be used as discovery in lawsuit against former employee of both casinos, trial court should have taken testimony in camera concerning whether information should be protected as “trade secrets.” 07-2-3748 500 Columbia Turnpike Ass’ts v. John P. Haselmann, et al., App. Div. (8 pp.). Once any party requests a jury trial, trial by jury can be dispensed with only by consent of all the parties or their counsel, pursuant to R. 4:35-1(d), whether or not those parties originally sought a jury trial. CONTRACTS 11-2-3749 Martinez Sun Electric, Inc. v. Housing Authority of the City of Newark, App. Div. (10 pp.) Low bidder for contract to perform electrical work for Housing Authority, whose bid was eventually rejected for failure to secure adequate bonding, was not entitled to return of that portion of its deposit which constituted the additional cost of awarding the contract to the second lowest bidder. DEBTOR/CREDITOR 15-2-3750 Midlantic National Bank v. Kiddie Craft, Inc. et al., App. Div. (8 pp.) Settlement agreement, memorialized in consent judgment in suit for repayment of loan, was not subject to collateral attack in subsequent proceedings to enforce the repayment schedule, absent clear and convincing evidence of fraud or other compelling circumstances. ENVIRONMENT — LAND USE 17-2-3751 Samuel Masucci, Jr. t/a American Road High Tech Park v. Department of Environmental Protection and Energy, App. Div. (22 pp.) Developer’s request for exemption from permit requirements of Freshwater Wetlands Protection Act was properly denied, despite the fact that predecessor-in-interest had obtained municipality’s subdivision approval as to a portion of the property within its borders before the effective date of the statute, since statute only exempts projects that have received prior approval from all local authorities having jurisdiction. NEGLIGENCE 31-2-3752 Steven Hatala and Delores Hatala v. Barclay-Brand Corp. et al., App. Div. (8 pp.) Suit against contractor hired to service as-needed a lift truck plaintiff operated at his work site was ordinary negligence case, not one in which the contractor was seen as having a special duty, and trial court therefore properly excluded expert testimony concerning the machine’s safety. TORTS 36-2-3753 Boyle Transportation Corp., t/a Boyle Limousine Service, et al. v. New Jersey Bell Telephone Co., Inc. et al., App. Div. (7 pp.) In suit in Chancery Division for negligent performance of contractual duties, trial judge in awarding damages should have attempted to make plaintiff whole by considering lost profits as well as actual losses suffered. 36-2-3754 John Jugan v. Stuart Friedman, M.D. et al., App. Div. (22 pp.) In suit by plaintiff to collect judgement for punitive damages awarded in prior medical malpractice case, (1) plaintiff is entitled to satisfy claim out of insurance policy acquired by means of assets which were fraudulently conveyed by defendant but (2) plaintiff is not entitled to punitive damages other than those for the original tort, since not every fraudulent transfer warrants punitive damages. CRIMINAL LAW AND PROCEDURE 14-2-3755 State v. Julio Berrios, App. Div. (6 pp.). Sentence which included restitution set aside because presentence report gave no indication of defendant’s ability to pay; without any evidence from any other source that defendant could pay and without according defendant a right to be heard about such evidence, restitution cannot be ordered. 14-2-3756 State v. Ramon Feliciano, App. Div. (10 pp.). A building on school property used to store school desks and for the offices of the school’s director of food services and other school employees is “school property used for school purposes” under the meaning of NJSA 2C:35-7. 14-2-3757 State v. Antwine Johnson, App. Div. (5 pp.). Police who heard shots in early morning hours in inner-city neighborhood and who located two isolated persons within 20-30 seconds within reasonable proximity of shots, had reasonable suspicion to pat down defendant and during that patdown, having found a can designed to conceal objects, was justified in opening the can. 14-2-3758 State v.Peter Molinaro, App. Div. (11 pp.). DWI conviction affirmed; policeman had reasonable suspicion to stop defendant’s white Pontiac convertible one-quarter of a mile from where another police officer had reported seeing two autos make wide right hand turns onto a highway, one of which was a white Pontiac convertible, which crossed the median line and drove 200 feet partially in the oncoming lane. 14-1-3759 State v. Rafael Valenzuela, Sup. Ct. (22 pp.) Trial court abused its discretion in discharging a juror as being unable to continue deliberations, since it can be implied from the record that the juror’s problems related not only to personal circumstances but to factors arising from interactions with other jurors. 14-2-3760 State v. Darryl Welch, App. Div. (12 pp.) Defendant is entitled to an instruction on any recognized theory of defense however tenuous, regardless of whether it is inconsistent with defendant’s theory that he did not participate in the crimes at all; conviction reversed for failure of trial judge to give duress instruction.

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