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VOL. 2, NO. 94 DECISIONS RELEASED MAY 26, 1994 ATTORNEY/CLIENT – NEGLIGENCE 04-2-3378 Henry Melloul v. Myra T. Peterson and Stern, Steiger, Croland, Tanenbaum & Schielke, P.A., App. Div. (8 pp.) Trial court properly dismissed client’s legal malpractice complaint for failure to obtain an expert witness, since the client could not prove malpractice in the handling of his divorce without expert testimony. DEBTOR/CREDITOR 15-2-3379 Great Falls Bank v. Joseph Pardo and Frank Paparatto et al., App. Div. (7 pp.) Summary judgment was properly granted to lender in suit on promissory note, since lender had no independent obligation to scrutinize relationship of the joint venturers who were signatories to the note, and allegations that one of the co-signers did not understand English and was induced by the others to sign on to the obligation was not a genuine issue of fact material to the outcome. FAMILY LAW 20-2-3380 Morris County Bd. of Social Servs. v. Ralph Gellar, App. Div. (4 pp.) Trial court erred in denying father’s petition to reduce his child support obligation, since fact that father was receiving food stamps and public assistance demonstrated changed circumstances. INSURANCE – HEALTH 23-2-3381 Elizabeth A. Langdale v. Mut. Benefit Life Ins. Co., App. Div. (6 pp.) Where insured brought suit against insurer for disability benefits, trial court erred in granting insurer’s summary judgment motion, since a question of fact existed as to whether the insured satisfied the policy’s “good health” requirement. INSURANCE – ALCOHOLIC BEVERAGES 23-2-3382 In the Matter of the Application of Licensed Beverage Ins. Exch. for an Exemption from Payment of Assessments Paid Pursuant to N.J.S.A. 17:30A-8a(9), State Insurance Commissioner properly upheld Fair Automobile Insurance Reform Act assessments upon an insurance exchange — which was a member of the state Property-Liability Insurance Guarantee Association (PLIGA) — since statutory provisions clearly support treating an exchange in the same manner as an insurer. JURISDICTION – CONTRACTS 24-2-3383 Regulation Serv. Inc. v. Eversharp Delivery Inc, et al., and Best Consultant Servs., App. Div. (5 pp.) New York corporation that accepted a contractual obligation to provide accounting services to a New Jersey enterprise created a continuing “obligation” between the two entities which is sufficient to support in personam jurisdiction, and trial court erred in dismissing the complaint for lack of minimum contacts. MUNICIPAL LAW 30-2-3384 Energy Consortium, Inc. v. Aerodyne-Redmond Envtl. and Garfield Bd. of Educ., App. Div. (7 pp.) Where plaintiff and defendant submitted the lowest public bids to board of education for heating renovations to schools but proposed different heating systems, and where board awarded the contract to the defendant because it preferred defendant’s system, trial court erred in setting aside the award of a contract to defendant and ordering the board to re-bid the project, since plaintiff — an unsuccessful bidder — had no standing to challenge the validity of the bid specifications after the bids were opened. MUNICIPAL LAW – LANDLORD/TENANT 30-2-3385 Pleasant Summit Partners and Northfield Assocs. v. Mayor and Township Council of the Township of West Orange, App. Div. (7 pp.) Trial court properly upheld constitutionality of a town ordinance requiring landlords receiving municipally provided garbage collection service to give their tenants a monthly-rental credit, since as to existing tenancies it is rationally related to a legitimate public purpose. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3386 Edward R. Reynolds v. Gail Gress , R.N., et al. and West Jersey Health Systems, et al., App. Div. (14 pp.) Where wrongful death suit claiming medical malpractice named fictitious defendants, trial court properly dismissed complaint against defendants whose names were added after the two year statute-of- limitations, since the patient’s counsel knew the names of the parties long before two years had passed but did not amend the complaint in compliance with the fictitious-defendant rule, R. 4:26-4. 29-2-3387 Sharon Tarsitano v. Dr. Thomas Rocereto, et al., App. Div. (8 pp.) Trial court properly permitted the jury in a medical malpractice suit to consider the patient’s claim of fear of future medical complications, without supporting medical evidence and without a showing of present physical or mental manifestations, since neither is required for a fear-of-future-illness claim. PRODUCT LIABILITY 32-2-3388 Gerard Sterling and Mariella Stella v. T.B. Woods & Sons Co., et al., App. Div. (12 pp.) Where plaintiff’s leg was seriously injured when a mixing-machine coupling manufactured by defendant shattered, but plaintiff’s expert’s net opinion failed to demonstrate its liability, and where trial court gave plaintiff’s counsel time to amend his proofs and to sue other coupling manufacturers but counsel did neither, court properly dismissed the complaint with prejudice. CRIMINAL LAW AND PROCEDURE 14-2-3389 State v. Brando Kahn and William Nickel, App. Div. (7 pp.) Where defendants, both municipal code enforcement officials, were convicted of theft by deception for operating pyramid schemes outside of their employment, trial court erred in striking prosecutor’s conditions for defendants’ admission into a Pretrial Intervention Program (PTI) — such as resigning from their positions and payment to drug and alcohol programs — since these are appropriate factors upon which the prosecutor may condition PTI admission. CRIMINAL LAW AND PROCEDURE – CONSTITUTIONAL LAW 14-1-3390 State v. David Mortimer, Supreme Ct. (29 pp.) Where defendant pled guilty to fourth-degree harassment when he and two juveniles spray-painted ethnic slurs on a garage door and vandalized a house owned by a Pakistani family, trial court erred in dismissing the complaint on the same constitutional grounds as the U.S. Supreme Court decision in R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992), since New Jersey statute only proscribes harassing conduct, which is not protected by the U.S. Constitution. 14-1-3391 State v. Steven D. Vawter and David J. Kearns, Supreme Court (36 pp.) Where defendants spray-painted ethnic slurs on a synagogue and satanic symbols on a Catholic church, trial court erred in not dismissing the indictments under N.J.S.A. 2C:33-10 and -11, since based on the U.S. Supreme Court holding in R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) the statutory sections regulate expression and thus violate the First and Fourteenth Amendments.

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