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VOL. 2, NO. 135 DECISIONS RELEASED JULY 27, 1994 AUTOMOBILES – NEGLIGENCE 05-2-3856 Rolando Martinez and Lydia Martinez v. Kyle T. Kettles and City of Newark, App. Div. (12 pp.) Where jury found that defendants (1) were 100 percent liable, and (2) did not prove that plaintiff failed to mitigate damages when plaintiff’s car collided with a city garbage truck, trial judge erred in granting defendants’ motion for a new trial on liability and mitigation, since the evidence supported the verdict, and the jury instructions were appropriate. INSURANCE – TORTS 23-1-3857 The Paul Revere Life Ins. Co. v. Gilbert K. Haas, Supreme Ct. (34 pp. incl. partial dissent), Supreme Court held that statutorily-mandated “incontestability clause” included in a disability insurance policy does not preclude an insurer from denying a claim, when the insured intentionally failed to disclose a disabling disease in the insurance application. LABOR AND EMPLOYMENT – CONTRACTS – ATTORNEY/CLIENT 25-2-3858 Michele Matthews, Inc. v. Kroll & Tract, App. Div. (10 pp.) Where plaintiff employment agency sought a personnel placement fee when law firm hired candidate it had interviewed twice, once through the agency and then on its own in response to a newspaper advertisement, trial court properly held that law firm was liable for the fee. ATTORNEY/PATIENT – NEGLIGENCE 29-2-3859 Alexander Ritondo, et al. v. Bernard A. Pekala, M.D., App. Div. (9 pp.) Where parents of abnormally developing baby sued doctor for medical malpractice, trial court properly granted motion for voluntary dismissal, since plaintiffs’ expert witness’s testimony on direct examination about the standard of care was nullified when on cross-examination the witness clearly abandoned his opinion. CRIMINAL LAW AND PROCEDURE 14-1-3860 State v. Charles Brent, Supreme Ct. (27 pp.) Trial court properly did not instruct the jury on criminal restraint as a lesser-included offense of kidnapping, since even though restraint is a lesser-included offense of first-degree kidnapping to facilitate the commission of aggravated-sexual assault, the evidence did not support such a charge. 14-1-3861 State v. Anthony DiFrisco, Supreme Ct. (128 pp. incl. dissent) Where defendant was sentenced to death for committing a contract murder, Court held that (1) defense counsel’s erroneous advice on sentencing prospects did not constitute ineffective assistance of counsel, since defendant failed to demonstrate that he was unaware of the consequences of his guilty plea related to the capital murder charge, and (2) the trial court’s failure to excuse a juror for cause did not constitute reversible error, since defense counsel failed to demonstrate that the juror who sat was partial. EDITOR’S NOTE: Most of the cases contained in this Alert were released on July 26, 1994, except the two criminal opinions, which were released on July 27, 1994.

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