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VOL. 2, NO. 224 Decisions Released December 21, 1994 CIVIL PROCEDURE 07-2-4584 Lewis C. Cubas, et al., v. Donna J. Grant, App. Div. (5 pp.). Dismissal of complaint affirmed because attorney’s negligent failure to file a trial de novo request within 30 days of arbitration award does not amount to excusable neglect or exceptional circumstances. FAMILY LAW 20-4-4585 Klaus Loos and Ute Loos v. Joy Manuel, et al. (Family Part (16 pp.). Petitioners seeking custody of minor child resident in New Jersey pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and implementing statute (ICARA) have the burden of proof that they had a right to the child’s custody which was breached by the child’s removal or retention. While under German law petitioners had the responsibility for the child’s daily care as long as he was with them, the child’s mother could remove him, as she did, and bring him to the United States; petition dismissed with prejudice. (Decided May 6, 1994; approved for publication Dec. 21, 1994). [Available online in N.J. Full-Text Decisions.] INSURANCE 23-2-4586 Joyce Otto v. Prudential Property and Casualty Insurance Company, App. Div. (7 pp.). Auto insurance carrier that pays PIP benefits is entitled to reimbursement from its insured’s recovery for non-economic loss against the third-party commercial tortfeasor, but where the carrier fails to assert the claim against the commercial tortfeasor within the two-year limitations period, its recovery will be reduced by the unused balance of the tortfeasor’s coverage (Approved for publication).[Available online in N.J. Full-Text Decisions.] INSURANCE – AUTOMOBILES 23-2-4587 Linda G. Percy & Robert Percy v. Scott Forman, App. Div. (7 pp.). Summary judgment dismissing complaint based upon the verbal threshold upheld because plaintiff’s TMJ condition and various jaw problems pre-existed the automobile accident, and there is no objective evidence that this accident actually produced the plaintiff’s current disability or to compare the effect of the prior disability with the accident. CRIMINAL LAW AND PROCEDURE 14-1-4588 State v. Bobby Lee Brown, Supreme Ct. (150 pp. including concurrence and dissent). At the guilt phase of a capital case, the trial court must instruct the jury that it has the option of returning a non-unanimous verdict on the question whether defendant committed the murder “by his own conduct.”[Available online in N.J. Full-Text Decisions.] 14-1-4589 State v. John Martini, Sr., Supreme Ct. (138 pp. including dissent). Court enunciates standards for proportionality review in capital cases. Considering both the defendant and the crime, Martini’s death sentence does not disclose any disproportionality when compared to sentences in factually similar cases.[Available online in N.J. Full-Text Decisions.] 14-2-4590 State v. Thomas Gregg, App. Div. (11 pp.) Fundamental fairness requires reversal of the conviction because of prosecutor’s excesses in his summation portraying the defendant as an utterly vile, contemptible and despicable person, coupled with the admission of prejudicially repetitious testimony and testimony admitted contrary to discovery provided to defendant. (Approved for publication).[Available online in N.J. Full-Text Decisions.] 14-2-4591 State v. William Monaghan, et al., App. Div. (14 pp.). Dismissal of indictment on the ground that the defendant was not competent to stand trial is affirmed because the 70-year-old defendant suffered from a major depressive disorder that interfered with his ability to understand, assimilate and evaluate the testimony, especially in light of the passage of time since the bribery and conspiracy charges were leveled (15 years since alleged act and 8 years since indictment) and because of the complexity of the case. OPINIONS APPROVED FOR PUBLICATION: 36-2-4565 Shirley Segal, et al., v. Herman Segal, et al. (Dec. 19, 1994); 14-2-4577 State v. Robin W. Butler (Dec. 20, 1994).[Both available online in N.J. Full-Text Decisions.]

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