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VOL. 2 NO. 181 DECISIONS RELEASED OCT. 17, 1994 EQUITY 18-2-4124 In the Matter of the Estate of Alanda Bruce, App. Div. (8 pp.) In dispute between parents of a brain-damaged child, following the child’s death, over the proceeds of an annuity created by a structured settlement of a malpractice suit against the delivering obstetrician, special guardian for the child exceeded his authority by designating a beneficiary of the annuity without court approval and trial court should have placed the parties in the same position as if the improper designation had not been made. INSURANCE 23-2-4125 Nydia Santamaria v. Gilberto Gonzalez et al., App. Div. (4 pp.) Physician’s report that causally related the plaintiff’s accident to an MRI showing the existence of multiple disk bulges met the Oswin v. Shaw standard of demonstrating a material issue of fact by credible, objective medical evidence that plaintiff may have suffered type 7 or type 8 injuries, and summary judgment for defendant was inappropriately granted. LAND USE 26-2-4126 F & W Associates et al. v. The County of Somerset et al., App. Div. (15 pp.) Traffic impact fee assessed by county on office condominium/housing development that necessitated the construction of two access roads to the abutting highway, since (1) county planning boards have inherent power to impose off- tract improvement assessments, (2) legislative intent was not that Transportation Development District Act provide exclusive means for assessing traffic impact fees and (3) there is a rational nexus between the cost of the off-tract improvements and the needs created by and benefits conferred upon the subdivision. PHYSICIAN/PATIENT 29-2-4127 Dorothy M. Rice, Executrix et al. v. Morton Markoff, D.O., et. al, App Div. (9 pp.) Trial court’s grant of new trial notwithstanding the verdict of no cause reversed because verdict rationally based on controverted evidence; defense witnesses testified that the accepted standard of medical care was only a guideline that could be expanded to suit the conditions of individual patients. REAL ESTATE 34-2-4128 The Gates Rubber Company et. al v. United States Land Resources, L.P., et al, App. Div. (8 pp.) Where, at a closing in which the property was found to be subject to an easement of record and the parties elected to go forward, executing a supplemental agreement in which buyer took a $150,000 credit off the purchase price but agreed to repay that amount if the seller cleared the easement of record within nine months, the agreement is entitled to be enforced by its terms. Seller’s clearance of title more than nine months after closing did not earn it repayment of the credit; nor was seller entitled to repayment when the buyer’s title carrier modified its policy to remove its exception for the right of way within the nine month period. TORTS 36-2-4129 Brookside Apartments, Inc. et al. v. Christian Stango et al., App. Div. (11 pp.) Dismissal of property damage complaint with prejudice due to the “egregious conduct” of plaintiffs’ attorneys — which included obtaining improper access to sealed records — was a mistaken exercise of discretion, since defendants did not show “demonstrable prejudice” from the attorneys’ misconduct. CRIMINAL LAW AND PROCEDURE 14-2-4130 State v. Jerome Crouch, App. Div. (10 pp.) Trial court not required to conduct hearing into defendant’s allegation that, prior to deliberations, he heard two jurors whisper that the defendant was guilty, because trial judge stated that he had his eyes on the jury and did not hear any such remark. 14-2-4131 State v. Peter Feldman, App. Div. (9 pp.) State under no Brady obligation to preserve computer printout of the fingerprints of other people retrieved through its Automated Fingerprint Identification System (AFIS), but eliminated in favor of defendant, since the State Police did not act in bad faith and the materials were not really exculpatory because the defense did not even present its fingerprint expert. 14-2-4132 State v. Byron Lockett, App. Div. (5 pp.) Conviction for reckless manslaughter reversed because instruction did not adequately set forth the necessary quantitative difference between that offense and death by auto. 14-2-4133 State v. S.B., App. Div. (31 pp.) In trial of defendant for aggravated sexual assault and endangering the welfare of a minor, it was not error for judge to fail to instruct the jury, sua sponte, that testimony on Child Sexual Abuse Accommodation Syndrome could not be used as substantive proof of guilt, since expert made only glancing reference to the system.

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