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VOL. 2, NO. 188 DECISIONS RELEASED OCTOBER 26, 1994 CIVIL PROCEDURE 07-2-4184 Samuel Gettis v. Martin D. Hauptman, Esq., App. Div. (6 pp.) Counsel fees and costs were appropriately assessed against plaintiff under the frivolous lawsuit statute, N.J.S.A. 2A:15-59.1, where plaintiff filed a second action against defendant — substantially the same as an earlier one that had been dismissed — that was barred by res judicata and the statute of limitations. INSURANCE 23-2-4185, Carrie Ann Churm v. Prudential Property and Casualty Ins. Co., App. Div. (5 pp.) Personal Injury Protection insured who submitted claim for benefits to binding arbitration may not thereafter obtain a trial de novo under N.J.S.A. 39:6A-31 and R. 4:21A-6. 23-2-4186 William Gouldner et al. v. International Harvestor Corp. et al., App. Div. (8 pp.) Fact that neither the insurance carrier nor its insured contemplated that coverage under an endorsement to a general liability policy would apply to “independent acts of negligence” by an “additional insured” did not relieve carrier of obligation, since the trial court was not bound to accept the parties’ interpretation of the that endorsement absent a showing that its phrasing was ambiguous. LAND USE 26-2-4187 Brigantine Residents Association v. City Council of the City of Brigantine et al., App. Div. (10 pp.) City council’s granting of zoning variance did not violate Municipal Land Use Law requirement that the record contain an enhanced quality of proof that the variance was not inconsistent with the intent of the master plan and zoning ordinance, N.J.S.A. 40:55D-70, since the oral expressions of the majority of council members who supported the variance revealed the basis of their determination. REAL ESTATE 34-2-4188 United Jersey Bank/Central, N.A. v. Louis F. Mercatini, Jr. et al., App. Div. (7 pp.) Where mortgagee sued guarantor on corporate note and mortgage prior to foreclosing on the property, as it claimed was permitted under N.J.S.A. 2A:50-2.3a, and guarantor failed to defend the suit at law which resulted in a default judgment, guarantor — faced with a deficiency judgment – - was not entitled to a hearing to determine fair market value of the mortgaged property.

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