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Vol. 3 No. 48 DECISIONS RELEASED MARCH 14, 1995 BANKING – CONTRACTS 06-2-5147 Household Finance Corp., III, v. Dennis J. Gauthier, et al., App. Div. (7 pp.) The trial court’s finding that husband received certain benefits from proceeds of loan obtained fraudulently by wife (and is therefore liable to finance company on default) cannot be justified since the judge failed to make specific findings concerning the utilization of the funds and the amounts used. CIVIL PROCEDURE – JURISDICTION 07-2-5148 Monique Baureis v. The Summit Trust Co., et al., App. Div. (14 pp.) Trial court erred in denying bank’s motion to dismiss complaint for failure to comply with the entire controversy doctrine, where plaintiff ‘s claims against bank for transferring assets were inextricably intertwined with her claims against her deceased husband and should have been raised in her previous suit against husband’s estate. [Approved for publication Mar. 14, 1995.][Available online in N.J. Full-Text Decisions.] CONTRACTS – EMPLOYMENT 11-2-5149 Facstore, Inc. v. Jonathan Chandross, et al., App. Div. (5 pp.) In a suit alleging violation of an employment agreement regarding proprietary information and intervention, where judge found that one employee did not steal intellectual property of former employer, that employee’s claim for counsel fees was properly denied since his interrelationship with co-employee (who was found guilty) could justify employer’s suspicions that the two had acted in concert. INSURANCE – AUTOMOBILES 23-2-5150 Effie Williams, et al. v. Donald Duquette, App. Div. (4 pp.) Where insured, following automobile accident, could still do housework although it took her more time and could still do heavy lifting but not as much, she failed to show that her injuries had a significant impact on her life as required to surmount the verbal threshold, and summary judgment for defendant was properly granted. MUNICIPAL LAW 30-2-5151 Winchester Knolls Homeowners’ Asso. v. Holmdel Planning Bd., et al., App. Div. (4 pp.) Dismissal of plaintiff’s complaint in lieu of prerogative writ was proper since there was no showing that new evidence, not of record, was introduced, received and considered at workshop meetings which followed the actual public hearings and the discussions therein only related to resolution of technical inquiries. NEGLIGENCE 31-2-5152 Cynthia I. Hart v. Property Management Systems, et al., App. Div. (5 pp.) Shifting of responsibility for a file between attorneys within a law firm, coupled with personnel changes among the attorney staff, during which the 30-day period within which to file for a trial de novo after arbitration expired, does not constitute the “exceptional circumstances” needed to relax the filing time requirement. [Approved for publication Mar. 14, 1995.][Available online in N.J. Full- Text Decisions.] PRODUCT LIABILITY 32-2-5153 Gerardo Zaza, et al. v. International Sheet Metal & Plate Mfg., Inc., et al., App. Div. (15 pp.) Summary judgment should not have been granted to manufacturer of component of tank, despite the fact that it provided only a skeleton of the tank, with holes available for later installation of piping safety devices by another entity, since, if feasible, the manufacturer should install safety device and, if not feasible, it should issue a warning that the devices have been omitted. PRODUCT LIABILITY – ASBESTOS 32-2-5154 Mary Ann Baranowski,et al. v. Francis Sfiscko, et al., App. Div. (29 pp.) No-cause verdict sustained on appeal since (1) preclusion of plaintiff’s expert witness on causation issue was harmless where substance of testimony was able to be presented by another witness and (2) possible prejudice of inflammatory comments made by defense counsel during closing argument was rectified by the judge’s immediate and strong admonitory instructions and counsel’s forced apology. PUBLIC EMPLOYEES 33-2-5155 Arsenio V. Silvestri v. Bd. of Trustees, Public Employees Retirement System, App. Div. (5 pp.) Since membership in PERS is a prerequisite to obtaining ordinary disability, and membership ceases when employee discontinues service for more than two consecutive years, board of trustee’s properly rejected plaintiff’s application for disability four years after he was terminated despite the fact that termination was involuntary and occurred by operation of law. TAXATION 35-2-5156 John M. Sewell v. City of Margate City, App. Div. (2 pp.) Tax Court judgment affirming tax assessment of city assessor was supported by adequate, substantial and credible evidence since landowner merely cited purchase price as justification of his proposed valuation, whereas tax assessor produced comparables and adjusted these for the condition of the property. CRIMINAL LAW AND PROCEDURE 14-2-5157 State of New Jersey v. Willie L. Tucker, App. Div. (6 pp.) Conviction reversed where trial judge failed to fit the charge on accomplice liability to the facts of the case. [Approved for publication Mar. 14, 1995.][Available online in N.J. Full-Text Decisions.] 14-2-5158 State of New Jersey v. Emma S. Estelle, App. Div. (5 pp.) Fact that the state’s proofs of recklessness in respect of the death-by-auto charge were limited solely to defendant’s intoxication does not bar her prosecution for DWI and reckless driving under principles of double jeopardy. -

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