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VOL. 2, NO. 194 DECISIONS RELEASED NOVEMBER 3, 1994 ATTORNEY/CLIENT – NEGLIGENCE – DEBTOR/CREDITOR 04-2-4241 Eslo Capital Corp. v. Whitman & Ransom, et al., App. Div. (14 pp.) Where mortgagee sued its law firm for failure to record mortgage loan, trial court properly allowed the complaint to be amended to include failure to obtain a title search, since the issue was mentioned in the original complaint’s preamble. CIVIL PROCEDURE 07-2-4242 Hugo Rodriguez et al. v. Sanford L. Obolsky et al., App. Div. (5 pp.) Judge’s reprimand of plaintiff’s counsel in the presence of the jury — for failing to heed earlier warning against making comments in front of the jury — was a legitimate exercise of trial judge’s authority to maintain decorum. COMMERCIAL TRANSACTIONS 08-2-4243 Samuel Grochow, et al. v. Mixim F. Basch et al., App. Div. (10 pp.) Investment broker sued for offering to sell unregistered, nonexempt securities was not liable as a controlling person under N.J.S.A. 49:3-71(b) where he established that he did not know, and in the exercise of reasonable care could not have known, that the securities being sold were not exempt from registration. CONTRACTS – CORPORATIONS – TORTS 11-2-4244 Van Natta Mechanical Corp. v. Joseph Di Staulo, and Di Staulo Constr. Co., Inc., App. Div. (19 pp.) Where subcontractor claimed that general contractor refused to hire it in order to stop the subcontractor from working for a competing general contractor, trial court should have allowed subcontractor to amend complaint to plead more specifically its antitrust claims, in view of fact that state’s public policy does not protect against the inducement to breach an ongoing contract. CORPORATIONS 12-2-4245 Ralph Muellenberg and Bikon-Techni v. Bikon Corp., et al., App. Div. (14 pp.) Trial court erred in ordering that defendant corporation be dissolved, pursuant to N.J.S.A. 14A:12-7(1), since claimed oppression and unfairness did not meet the standards of N.J.S.A. 14A:12-7(1)(c). EDUCATION 16-2-4246 In the Matter of Claire Morrish v. Dep’t of the Treasury, Div. of Pensions and Benefits, App. Div. (4 pp.) Pension trustees properly denied teacher’s retroactive application for retirement benefits, since under N.J.S.A. 18A:66-37, she must apply for benefits before her retirement date. INSURANCE – AUTOMOBILES 23-2-4247 Georgeann A. Carmichael v. Miriam Marshall, App. Div. (7 pp.) Plaintiff who injured her back in an automobile accident submitted enough evidence to raise factual issues as to whether she suffered from a type 7 or type 8 injury, and trial court erred in granting defendant’s summary judgment motion dismissing the complaint for failure to meet verbal threshold. 23-2-4248 Lee Michele Dickenson v. Aetna Casualty & Surety Co., et al., App. Div. (4 pp.) Trial court erred in awarding plaintiff PIP benefits for a TMJ injury discovered by plaintiff more than four years after the accident, but within two years of the last payment for other accident- related injuries, since even though it was timely filed, the lawyer did not notify the insurer until a year after he was informed about the TMJ. 23-2-4249 James Donovan v. Wanda Bullion, App. Div. (3 pp.) Where plaintiff who injured her back in an automobile accident failed to show that the injury seriously impacted on her daily life, trial court properly dismissed the complaint for failure to meet verbal threshold. PUBLIC EMPLOYEES 33-2-4250 In the Matter of the Denial of 25-Year Service Health Benefit to Certain Faculty of Union County College, App. Div. (7 pp.) Service with a prior educational institution prior to its merger with a public institution may not be used to satisfy the 25-year-public-service credit requirements for state-paid health benefits. 33-2-4251 In the Matter of Irene Musick, Dep’t of Corrections, App. Div. (4 pp.) Merit system board erred in denying bookkeeper extended-sick-leave injury benefits on grounds that the benefits are not compensable for disabilities which continue for more than a year under N.J.A.C. 4A:6-1.6(b)3, since the regulatory requirements were met, and the benefits she already received did not exceed one year of salary continuation. REAL ESTATE – CONTRACTS 34-2-4252 Summerhill Meadows Condominium Ass’n, Inc. v. Sandra York, et al, App. Div. (5 pp.) Trial court properly dismissed complaint by condominium owner who sued for return of her inoperable car, which the association had towed from the condominium grounds, since the association told the owner that the car would be considered abandoned and removed if it was not repaired pursuant to the master deed. TORTS 36-2-4253 Paul M. Fitzmaurice v. J.S.L. Associates et al., App. Div. (6 pp.) Although plaintiff established that he suffered grievously from the loss of his son — who was sexually molested, murdered and mutilated — but where plaintiff’s medical reports show sufficient lucid periods for him to have retained counsel to file suit, he did not establish that for the full two years following the murder his condition was of mental derangement that prevented him from understanding his legal rights or instituting legal action. TORTS – GOVERNMENT 36-2-4254 Enrique Herrera, et al. v. City of Newark, App. Div. (4 pp.) Trial court properly dismissed complaint by pedestrian who allegedly tripped and fell in a pot-hole on a city street, since it did not comply with the pleading requirements of N.J.S.A. 59:8-4(c) for suits against government. 36-2-4255 Sabrina L. Jenne v. GMAC, et al. and Borough of Westwood, App. Div. (11 pp.) Trial court properly dismissed suit by passenger injured when the car’s driver lost control at a curve in the road, since the curve was not a dangerous condition under N.J.S.A. 59:4-1(a). WORKERS’ COMPENSATION – TORTS 39-2-4256 Renee Ricci v. Southern Ocean County Hosp. and Charles Smith, App. Div. (6 pp.) Work-study employee who sued hospital for injuries sustained when she fell on the job was a “special employee” and thus was barred from recovering in tort under the exclusivity provision of N.J.S.A. 34:15-8, since the three-prong test of Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 22 (App. Div. 1988) to establish the hospital’s liability was not met. CRIMINAL LAW AND PROCEDURE 14-2-4257 State v. Willie Lee Brown, App. Div. (5 pp.) Where defendant was convicted of third-degree cocaine possession after having been convicted of similar offenses, trial court properly sentenced defendant to an extended term pursuant to N.J.S.A. 2C:43-6f. 14-2-4258 State v. Marvin Russell, App. Div. (15 pp.) Trial court properly denied motion for post-conviction relief by convicted murderer who alleged that he was denied a fair trial because a co-defendant was prohibited from testifying in his defense pursuant to co-defendant’s plea agreement, since the co-defendant’s plea agreement required that the co-defendant testify truthfully. 14-2-4259 State v. Taft Reed, App. Div. (6 pp.) Where Newark board of education sought to fire teacher because of his conviction, trial court properly allowed the defendant to withdraw his guilty plea shortly after his sentencing, since in pleading guilty the defendant had relied upon the state’s promise that he would not loose his job. 14-2-4260 State v. Jose Ribalta, App. Div. (20 pp.) Where defendant was convicted of distribution of a controlled dangerous substance, trial court properly concealed the surveillance location, since disclosure could possibly inhibit future prosecutions and endanger lives and property. CRIMINAL LAW AND PROCEDURE – ALCOHOLIC BEVERAGES 14-2-4261 State v. John J. Gavenda, App. Div. (5 pp.) Superior Court judge properly affirmed defendant’s conviction for refusal to submit to a Breathalyzer test, since there were reasonable grounds for the arresting officer to believe that the defendant was driving while under the influence of alcohol.

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