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Vol. 3, No. 43 DECISIONS RELEASED MARCH 7, 1995 CIVIL PROCEDURE 07-2-5092 Dierdre M. Falato v. Mitsubishi Motor Sales, et al., App. Div. (16 pp.) Where plaintiff was overheard by three jurors to say that she smelled fire (when she had previously testified that she had lost her sense of smell in the accident), the trial judge committed reversible error in (1) not interviewing the three jurors to ascertain whether they could remain impartial; (2) not conducting a voir dire of the entire jury to determine whether each member heard the utterance; (3) not giving appropriate and forceful curative instructions to the jury as a whole; and (4) not permitting the plaintiff to be recalled as a witness to clarify the exclamation. FAMILY LAW 20-2-5093 Maryann Peranio v. Lawrence Peranio, App. Div. (12 pp.) The trial judge incorrectly issued a restraining order related to domestic violence against a husband who had stated, “I’ll bury you” to his wife in the heat of an argument, since there was no finding of an intent to harass, no course of repeated behavior and no history of threats, harassment, physical or mental abuse. [Available online in N.J. Full-Text Decisions] 20-2-5094 State of New Jersey, et al. v. Kenneth Michael Volk, App. Div. (6 pp.) The motion judge should not have denied putative father s motion to dismiss child support complaint filed under the Revised Uniform Reciprocal Enforcement of Support Act by mother of child in Virginia where, in a similar proceeding that had been pending in New Jersey nine years earlier, the “father” complied promptly with court’s order at the time and the case was marked “discharged” when mother moved and did nothing for the nine years, and laches bars her complaint. [Available online in N.J. Full-Text Decisions] INSURANCE 23-2-5095 Elat, Inc. v. Aetna Casualty and Surety Co., et al., App. Div. (7 pp.) In a case where an estate was sued for contribution and indemnification by plaintiff corporation for environmental remediation costs, then sought coverage from its insurer under its comprehensive general liability insurance policy and later assigned its rights against the insurer to the plaintiff, the trial judge erred in granting the insurer’s motion to dismiss the complaint since, although the policy contained an express prohibition against assignment unless consented to and endorsed by the insurer, once the loss has occurred, the assignment is of the loss, not the policy, and is not barred by a no-assignment provision. [Available online in N.J. Full-Text Decisions] 23-2-5096 John Giaquinto v. Consolidated Rail Corp., et al., App. Div. (11 pp.) In three consolidated matters where trucking employees–who worked for a truck line but but were located on a site occupied by Conrail– were injured and sued Conrail for failure to provide a safe workplace, and Conrail sued the truck line’s insurer for defense and indemnification, the judge was correct in granting summary judgment to Conrail as an additional insured under truck line policy, since Conrail was an occupant in possession of the property, and the fact that the policy contained an exclusion for coverage of claims under the Federal Employers’ Liability Act does not invalidate coverage for those portions of the claims which sound in negligence, despite the fact that FELA claims originally were pleaded as well. INSURANCE -AUTOMOBILES 23-2-5097 Katrina Starbeck v. Stephen Grieco, et al., App. Div. (6 pp.) Summary judgment was correctly granted to defendants for plaintiff’s failure to meet the verbal threshold where plaintiff’s injuries, though diverse, were unremarkable, the objective tests provided negative or normal results, and the plaintiff’s doctors did not opine as to permanency or causally relate the plaintiff’s complaints to the accident. LAND USE 26-2-5098 L.R.F.C., et. al. v. Bergen County Utilities Authority, et al., App. Div. (7 pp.) The trial judge’s finding that land developers had failed to demonstrate that the defendants’ various zoning, development and solid waste planning activities had resulted in a compensable taking of their property was supported by sufficient credible evidence where action of defendants constituted government activity, there was no showing of bad faith or unreasonable delay in landfill procedure, and developer had refused viable offers and stopped marketing the property. REAL ESTATE 34-2-5099 Jacqueline Nalitt, et al. v. Hazlet Realty Asso., Inc., App. Div. (3 pp.) Where realtor defaulted on its mortgage for premises in a shopping center, it could not assert, as a defense to foreclosure action, the existence of an oral agreement with plaintiff s decedent that they would enter into a joint venture to develop the shopping center and pursuant to which realtor would be relieved of responsibility for mortgage payments, since this violates the statute of frauds, and summary judgment in favor of plaintiff was proper. TAXATION 35-2-5100 Judith Brahin v. City of Somers Point, App. Div. (7 pp.) The trial court was incorrect in granting municipality’s motion to dismiss tax appeal on the ground that it presented no correctable error under the statute, since the error was correctable under the statute, and the fact that the tax assessor now in office was not in office at the time of the original assessment does not preclude the relevance of the assessor’s testimony on the evaluation of records in her custody. CRIMINAL LAW AND PROCEDURE 14-2-5101 State of New Jersey v. Estevan Sanchez, App. Div. (7 pp.) The trial judge incorrectly granted defendant’s motion to suppress evidence obtained as a result of an automobile stop, where officer had objective basis to stop the vehicle for swerving and changing lanes in violation of motor vehicle laws and the state did not have to prove that defendant s swerving actually affected traffic to prove that the stop was reasonable. OPINION APPROVED FOR PUBLICATION: 34-2-4290 Marjorie H. Coyle v. New Jersey Real Estate Comm’n (Nov. 10, 1994). [Available online in N.J. Full-Text Decisions] A

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