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Vol. 3 No. 47 DECISIONS RELEASED MARCH 13, 1995 ATTORNEY/CLIENT 04-2-5131 Sherwood Baxt, et al. v. Gerald A. Liloia, et al., App. Div. (18 pp.) Bank attorneys’ nondisclosure of the source of a document used to support moving papers in foreclosure action did not give rise to a private cause of action in favor of their adversaries, since the ethical duty to disclose is to clients and to the court and is not intended to run to an adversary’s benefit. CIVIL PROCEDURE 07-2-5132 The Summit Trust Co. v. The Grove Mercantile Center, et al., App. Div. (8 pp.) Having initially agreed to the appointment of a special master to preside over their dispute, defendants are estopped from attacking the appointment and, further, have failed to establish that the master exacerbated the discovery process or that his bill was unreasonable. CONTRACTS 11-2-5133 Monmouth Excavators, Inc. v. Dick Fischer Dev. #3, Inc., t/a Laurelwood Homes, App. Div. (5 pp.) Judgment against sewer-line contractor on developer’s counterclaim for cost of leakage repair is reversed because there is no evidence from which a trier of fact could conclude that contractor’s work was not performed in a workmanlike manner. CONSUMER PROTECTION – REAL ESTATE 09-2-5134 Constantine Alexiou v. Waldo G. Harris, et al., App. Div. (9 pp.) Consumer Fraud Act applies solely to commercial transactions and therefore dismissal of that part of buyer’s complaint in private real estate transaction was proper; dismissal of claim for rescission based upon legal and equitable fraud was also proper since there was no finding of seller s intent to deceive; and, plaintiffs, who affirmed transaction and accepted full damages from their attorney, cannot then seek to rescind the same transaction to recover against the sellers. FAMILY LAW 20-2-5135 Patricia Ridella v. John Ridella, App. Div. (12 pp.) In wife’s enforcement proceeding under the Revised Uniform Reciprocal Enforcement of Support Act, order of Pennsylvania court in husband’s action to determine child support and arrears does not amend, modify or render invalid a prior New Jersey order; rather, amounts collected from defendant under the Pennsylvania order are to be credited. HEALTH 22-2-5136 In the Matter of the Suspension or Revocation of the License of Ernesto L. Rodriguera, M.D., App. Div. (49 pp.) The Board of Medical Examiners’ determination to revoke the doctor’s license to practice medicine and surgery was proper where, inter alia, he supplied false and misleading information to the Attorney General in response to complaints against him and he deviated from accepted cardiac procedures. INSURANCE 23-2-5137 Cumberland Mutual Fire Ins. Co. v. Frederick Diedrich, App. Div. (7 pp.) Summary judgment was properly entered in declaratory judgment action, requiring insurer to defend a pending personal injury actions since, although it did not owe a duty on the intentional allegations of the complaint, it might on the negligence count. NEGLIGENCE 31-2-5138 William Johns v. John Miliano, et al., App. Div. (3 pp.) Demoted police chief’s comments at a public meeting that plaintiff, a transferred narcotics detective, was a “political flunkie,” followed by plaintiff s receipt of various anonymous obscene notes and prank phone calls, did not support a claim for negligent or intentional infliction of emotional distress. 31-2-5139 Lisa Debanico v. Valerie Rutan, et al., App. Div. (6 pp.) Verdicts in favor of defendants in separate personal injury suits were proper since, inter alia, (1) judge’s interventions during witnesses’ trial testimony were attempts to expedite or clarify testimony and, (2) although his references in his charge to plaintiff’s doctors as “fellow” and “guy” were inappropriate, they do not rise to the level of plain error. 31-2-5140 Patricia Aricchi, et al. v. Shop Rite Supermarkets, App. Div. (7 pp.) The mere fact that a store was aware that spills and breakages and consequent slips and falls might occur does not mean that the store was on notice of a recurring hazardous condition because of its mode of operation, and plaintiff was not relieved of the burden of proving actual or constructive notice of the specific hazard which caused her fall. PHYSICIAN/PATIENT 29-2-5141 Raymond DelGaudio, et al. v. Ernesto Rodriguera, M.D., App. Div. (11 pp.) Trial judge erred in precluding patient-plaintiff from using, in his examination of expert witnesses, certain portions of the administrative decisions in connection with doctor’s license suspension and revocation, which were relevant as impeachment evidence on the crucial issue of credibility. [Approved for publication Mar. 13, 1995.] REAL ESTATE 34-1-5142 In re Opinion 26 of the Committee on the Unauthorized Practice of Law, App. Div. (68 pp.) The practice of conducting residential real estate closings without the presence of attorneys shall not constitute the unauthorized practice of law so long as the broker conforms to specific notice conditions. CRIMINAL LAW AND PROCEDURE 14-2-5143 State of New Jersey v. Celita Williams, App. Div. (5 pp.) Hospital record, which contained references to the victim being “stabbed,” was inadmissible hearsay since there was no indication as to whether the medical personnel concluded the victim had been stabbed on the basis of their own examinations or based on what she told them, and the references did not bear on her diagnosis or treatment. 14-2-5144 State of New Jersey v. David Lluberes, App. Div. (14 pp.) Motion to suppress confession was properly denied since defendant initiated the pre-indictment interview with police in which his confession was taken, had been warned of his Miranda rights and never asked that the interview be terminated. 14-2-5145 State of New Jersey v. Wendell Otis Johnson, App. Div. (6 pp.) Defendant’s conviction for reckless manslaughter reversed where trial court did not adequately instruct the jury with respect to the distinctions between recklessness in death-by-auto statute and recklessness in manslaughter statute. OPINION APPROVED FOR PUBLICATION: 31-2-5127 James A. Ruberton, et al. v. Charles W. Gabage, et al. (Mar. 10, 1995); 31-2-5128 Jose Vasquez v. Mansol Realty Associates (Mar. 10, 1995). -

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