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VOL. 2, NO. 92 DECISIONS RELEASED MAY 24, 1994 COMMERCIAL TRANSACTIONS 08-2-3345 Barry Gehring and Lewis Morey v. Dorothy Dieffenbach et al., App. Div. (15 pp.) Where investor purchased stock in closely held retail corporation subject to side agreements providing that corporation would be debt-free as of the closing date and that investor would be held harmless from additional taxes and other assessments on the business, investor was entitled to indemnification for all undiscovered liabilities incurred before that date. CONTRACTS 11-3-3346 Saxon Contr. & Management Corp. v. Masterclean of N. Carolina, Inc., and First Indem. of Am. Ins. Co., Law Div. (5 pp.) Where plaintiff general contractor sued defendant subcontractor for contract breach, trial court held that contract-termination clause violated public policy, since it permitted the subcontractor, the defaulting party, to profit from its breach, and discouraged the general contractor from minimizing its losses. [Approved for publication May 23, 1994.] EVIDENCE – ALCOHOLIC BEVERAGES – AUTOMOBILES 19-2-3347 Alfred Mason v. Nicholas Vetro and William Mason, et al., App. Div. (7 pp.) Where two brothers and a friend, who had been drinking, were injured in a multiple-vehicle accident, a question existed as to which brother was operating a motorcycle involved in the accident, trial court properly allowed the jury during an expert’s direct examination to hear the deposition statements of the friend and a nonparty-eyewitness about the motorcycle operator, even though neither testified at trial, since both had been deposed, and plaintiff’s counsel never made an application to exclude any reading of the depositions to the jury, under N.J.R.E. 403. FAMILY LAW 20-4-3348 In the Matter of the Guardianship of T.M.B. and R.C.B., Ch. Div. (15 pp.) Foster parents, who cared for children since infancy pursuant to foster-care agreements with the Division of Youth and Family Services, did not establish a basis for standing to seek termination of the natural parents’ rights or to seek guardianship or custody of the children, since by statute DYFS has sole authority to seek such relief.[Approved for publication May 23, 1994.] 20-1-3349 In the Matter of the Guardianship of G.S., III, a minor, et al., Supreme Ct. (19 pp.) Where an indigent parent appeals from his or her termination of parental rights, the parent has the right to obtain trial transcripts at public expense when the transcripts are necessary to the appeal; but in this case, where the question of paying costs was at issue, appellate court properly held that where the Public Defender is not statutorily mandated to defend, the Division of Youth and Family Services is responsible for the defense costs, unless there is an alternative source of funds. 20-1-3350 New Jersey Div. of Youth and Family Servs.(DYFS) v. E.B. and D.W., Supreme Ct. (16 pp.) Where DYFS would pay only $700, its usual fee, toward parents’ psychological evaluations conducted by a court-appointed outside expert, prior to a scheduled child-abuse and neglect Title 9 hearing, and Legal Services petitioned the court to have the outside expert used, trial court erred in ordering Legal Services to pay the balance, since in Title 9 child-abuse and neglect actions, the Public Defender’s Office must pay the costs of ancillary services in cases that the office is statutorily mandated to defend, even when the indigent is represented by private or public-interest counsel. 20-2-3351 Barry W. Volkert Sr. v. Yvonne L. (Volkert) Stephan, App. Div. (6 pp.) Trial judge was not required to conduct plenary hearing in post-judgment proceedings before determining whether and to what extent the parties should contribute to their child’s higher education, since applicable case law requires only that judge permit the parties to develop a record on the relevant factors. INSURANCE 23-2-3352 John J. DiLello et al. v. Western World Ins. Co., App. Div. (5 pp.) Summary judgment for plaintiff was improperly granted, in suit for declaratory judgment that insurer was liable for compensatory damages under the terms of policy, since there was a genuine issue of fact regarding the policy coverage period. 23-2-3353 Narni R. Giri, M.D. v. Rutgers Casualty Ins. Co. v. Medical Inter-Ins. Exch. of New Jersey, App. Div. (19 pp.) Where doctor brought a malicious civil-prosecution action against insurer for lapsed malpractice insurance, interruption of his practice and income loss, trial court properly dismissed doctor’s complaint, since his alleged damages did not constitute a “special grievance,” a key element of his cause of action. ***CORRECTION [This is the corrected version of an item in the May 24 Alert that misstated the holding of the case:] 23-2-3353 Narni R. Giri, M.D. v. Rutgers Casualty Ins. Co. v. Medical Inter-Ins. Exch. of New Jersey, App. Div. (19 pp.) Where doctor brought a malicious civil-prosecution action against insurer for lapsed malpractice insurance, interruption of his practice and income loss, trial court erred in dismissing doctor’s complaint on the ground that his alleged damages did not constitute a “special grievance,” and case was remanded for further factfinding. INSURANCE – AUTOMOBILES 23-2-3354 James Downey and Lynn Downey v. City of Elizabeth and Rasmussen Adm’rs, App. Div. (6 pp.) Where an Elizabeth police officer, who was seriously injured when the motorcycle he was riding was struck by a car, settled with the defendant driver and then sued the city seeking underinsured (UIM) coverage from it as a self-insurer, trial court properly held that a municipal self-insurer is not required to have UIM coverage for drivers of vehicles owned by it, since UIM coverage is not statutorily mandated. 23-2-3355 John E. Smith and Gloria Smith v. Terriel Rouland, Jr., and Raymond Rouland, App. Div. (4 pp.) Where plaintiff driver ruptured his right biceps tendon in an automobile accident, trial court erred in dismissing driver’s complaint for failure to meet verbal-threshold criteria, since the rupture of a right biceps tendon constitutes objective medical evidence, and his inability to pursue recreational activities is a serious impact on his life. LABOR AND EMPLOYMENT 27-2-3356 Kenneth J. Costello v. Bd. of Review, Dep’t of Labor, App. Div. (6 pp.) Plaintiff was properly denied unemployment benefits, since he participated in “workfare” (working while receiving general assistance) during part of part of his benefit year, which is excluded from the definition of employment, under N.J.S.A. 44:8-114. LAND USE – ENVIRONMENT 26-2-3357 Mt. Bethel Humus Co., Inc. v. State of New Jersey, Dep’t of Envtl. Protection and Energy (DEPE), App. Div. (9 pp.) Where company, which extracted peat, humus and clay from its property, a prior nonconforming use, obtained a soil-removal permit from the Planning Board to continue its operations under the Municipal Land Use Law (MLUL), DEPE properly held that township’s approval of company’s permit under the MLUL did not exempt company’s operations from permit requirements under the Freshwater Wetlands Protection Act, since company’s claim was not supported by the record or applicable law. NEGLIGENCE 31-2-3358 Gabriel Sanitate v. Vladimir Rodina et al., App. Div. (4 pp.) Finding by jury in liability trial that defendant’s negligence was the proximate cause of any injury sustained by plaintiff did not collaterally estop jury in the damages trial from finding that plaintiff had suffered no compensable injury, and plaintiff was not entitled to a jury instruction, in the damages trial, that the first jury had found proximate cause, since that instruction would have had the capacity to mislead. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3359 Carol Brewer v. Andover Nursing Home, et al. and John J. Choi, M.D., (7 pp.) Where patient sued defendant nursing home for negligent care, trial court erred in not allowing the patient to amend her interrogatory answers and complaint to include a statutory violation under the nursing home resident’s bill of rights, N.J.S.A. 30:13-1 to -15, since the nursing home would not be prejudiced by the amendments. PUBLIC EMPLOYEES 33-2-3360 Borough of Dunellen v. F. Montecalvo Contracting Co. v. Stetler & Guldin Eng’g, Inc. v. Borough of Dunellen, App. Div. (9 pp.) Where borough claimed that it should not be responsible for the borough engineer’s indemnification and defense costs related to a suit involving the borough and a contractor, because engineering company serving as borough engineer supposedly was acting as an independent contractor, trial court properly held that borough must pay for the costs, since the engineering company was acting in its public capacity. [Approved for publication May 23, 1994.] 33-2-3361 Gillian Impey v. Bd. of Educ. of the Borough of Shrewsbury, Where the board abolished tenured speech therapist’s position, and contracted with county organization to provide speech therapy at a lesser cost, the board’s actions did not violate the therapist’s tenure rights, since a board can abolish a teaching position for economy reasons. TORTS – CIVIL PROCEDURE 36-2-3362 Jose Benequez and Rafaela Benequez v. Tab Elec. Supply Co. and Donald Davidson, App. Div. (7 pp.) Where truck driver was injured when a truck rolled back, pinning him between the truck and the loading dock, after the driver believed the truck wheels were secured, trial court erred in dismissing plaintiff’s complaint for failure to oppose company’s summary judgment motion, since plaintiffs’ counsel demonstrated excusable neglect. 36-2-3363 Albert Booth v. Carco Contr. Co., Inc., Robert Carragino and James Hendershot and Steven Collerin, App. Div. (8 pp.) Where an out-of-state uninsured’s dog startled plaintiff, causing him to fall on a mound of dirt injuring his elbow while walking his dog on defendant Carco’s property, trial court properly granted defendant Hendershot’s motion for involuntary dismissal under R. 4:37-2(b), since Hendershot was an independent contractor and had no duty to maintain the premises in a reasonably safe condition. 36-2-3364 Cypriana Gutierrez and Pedro Gutierrez v. Pathmark, App. Div. (5 pp.) Where shopper was supposedly injured after slipping on a grape in a supermarket, even though trial court erred in allowing an assistant store manager to testify at trial when he was not mentioned in discovery, it did not constitute reversible error, since the judge adjourned the trial to allow the manager to be deposed before testifying at trial, and the shopper’s counsel did not request additional discovery or indicate any prejudice. CRIMINAL LAW AND PROCEDURE 14-2-3365 State v. Zaki Abdelnoor, App. Div. (15 pp.) Where defendant was convicted of second-degree conspiracy to distribute heroin, for bringing heroin into the country from Beirut, and police knew about operation after listening to telephone conversations between informant in Beirut and co-defendant about setting up smuggling operation, trial judge properly held that the state’s actions did not constitute due-process entrapment, since the criteria in State v. Johnson, 127 N.J. 458 (1992), and State v. Florez, 134 N.J. 570 (1994), were not met. 14-2-3366 State v. Nicholas Ciarletta, App. Div. (5 pp.) Where defendant was convicted of first-degree aggravated sexual assault, trial court properly denied defendant’s motion for post-conviction relief, claiming that there was a difference between the indictment version of defendant’s stated purpose in holding the victim and the trial judge’s explanation of the event in describing the crime elements to the jury, since defendant’s application is barred by R. 3:22-4, because it could have been but was not raised on direct appeal. 14-3-3367 State v. Richard DiTolvo, Law Div. (7 pp.) Where defendant, during discovery, provides the state with the name and address of a witness but no written summary of the witness’ anticipated testimony, the witness should be barred from testifying except where — as here — the state is not surprised by the anticipated testimony because it obtained the information from another source. [Approved for publication May 23, 1994.] 14-2-3368 State v. Joseph Ross, App. Div. (7 pp.) Municipal court properly denied motion to suppress evidence of driving while intoxicated, since police officer had a reasonably based, articulable suspicion that a motor vehicle violation had occurred.

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