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Vol. 2, No. 172 DECISIONS RELEASED OCTOBER 3, 1994 FAMILY LAW 20-2-4048 Gail F. Kapcsandi v. Joseph J. Kapcsandi (9 pp) Husband not entitled to reopen default judgment’s equitable distribution provisions where he made no direct challenge, but waited until wife made motion to enforce litigant’s rights. INSURANCE-AUTOMOBILES 23-2-4049 Joanne Pituch v. Awilda Santos, et al. (15 pp.) Plaintiff provided sufficient credible, objective medical evidence (spasm, limitation of motion, cervical distraction, muscle inflammation,) and evidence of serious impact on life (job trouble, daily pain, household chores affected, cut-back in pool playing) to raise a genuine issue regarding whether her injuries and consequent disability meet the requirements of type eight of the verbal threshold categories–significant limitation of use of a body function or system; grant of defendants’ motion for summary judgment reversed. NEGLIGENCE 31-2-4050 Susan and Andrew Sabatini v. Steven Berkowitz, App. Div. (10 pp.) Jury instructions, in trial of claim of orthopedic surgeon’s negligent removal of the wrong disc, unduly prejudiced defendant’s right to fair consideration since (1) instruction as to duty of care had the effect of giving the jury a choice of assessing the case with the aid of expert testimony or applying common knowledge and experience without the aid of expert testimony and (2) res ipsa loquitur instruction was inappropriate in a case where, as here, direct proof of causation is available. NEGLIGENCE/CIVIL PROCEDURE 31-2-4051 Angela Janine Lembo, an infant by her Guardian Ad Litem, Alfred O. Lembo, Sr. v. A & A Enterprises, Inc., et al. (6 pp.) $40,000 verdict for child who suffered fractured skull and lascerated internal organs, who was unable to return to kindergarten for school year, and who required daily penicillin medication for the remainder of life, does not require additur or new trial. PUBLIC EMPLOYEES 33-2-4052 Carrie Strincoski v. Board of Education of the Township of East Brunswick (5 pp.). State Board of Education’s decision that plaintiff held tenure as janitor and consequent termination without showing of good cause was invalid, upheld; East Brunswick Board’s resolution granting tenure to janitors was never formally revoked and never impliedly rescinded by subsequent policy manual. CRIMINAL LAW AND PROCEDURE 14-2-4053 State v. Edward J. Denicola, App. Div. (5 pp.) Conviction for harassment through ethnic intimidation, N.J.S.A. 2C:33-4d, reversed where record shows neither factual basis for guilty plea nor evidence that defendant uttered the offensive language with a purpose to intimidate the victim because of race. 14-2-4054 State v. Michael Wilson, App. Div. (6 pp.) A life sentence and a 25-year period of parole ineligibility for a first-degree robbery conviction was excessive, since the judge inappropriately shifted the focus away from the crime and onto the defendant’s history of recidivism.

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