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VOL. 2, NO. 205 DECISIONS RELEASED NOVEMBER 22, 1994 ARBITRATION AND MEDIATION 03-2-4382 Weichert Co. Realtors, Inc. v. Independent Group of Cos., App. Div. (8 pp.) In a contract dispute, appellate court reinstated an arbitrator’s award by applying retroactively the Tretina Printing v. Fitzpatrick & Assocs., Inc., 135 N.J. 349 (1994) decision, which held that requiring an arbitrator to explain his reasoning undermines arbitration goals of finality and expedition, since the parties were not prejudiced; the decision reversed the trial court’s dismissal of arbitrator’s award in favor of company on grounds that there was no reviewable record under N.J.S.A. 2A:24-8d. CIVIL PROCEDURE – LAND USE 07-2-4383 Whibco, Inc. v. Township of Maurice River and the Morie Co., Inc., App. Div. (7 pp.) Trial court properly dismissed fraud complaint over town’s granting of easement deed to defendant company, but erred in awarding defendant damages under the Frivolous Litigation Act, since the holding in McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546 (1993), does not permit reliance on N.J.S.A. 2A:15-59.1(b)(2) for attorneys’ fees and costs if the party is acting on counsel’s advice. CONTRACTS 11-2-4384 Lease Line, Inc. v. Maverick Supplies, Inc., App. Div. (6 pp.) Where lessee appealed from damages awarded to lessor for lessee’s breach of truck lease after lessor leased truck to another party, trial court erred in using “lost volume” measure of damages, since there is no showing that lessor could have leased additional trucks to all probable customers. EVIDENCE – CONTRACTS 19-2-4385 Eastern Waterproofing and Constr., Inc. v. Doric Apartment Corp., App. Div. (7 pp.) Where in a dispute over money owed to a contractor for work done on a building, trial court properly dismissed apartment co-op’s counterclaim, since its expert’s analysis was highly speculative. FAMILY LAW 20-2-4386 In the Matter of A., a Minor, App. Div. (20 pp.) Where foster parents appealed from an order reuniting child with his mother, who had visited with child while in foster care, trial court properly awarded custody to the mother, since there was no evidence that she would endanger the child’s health and development.[Available online in N.J. Full-Text Decisions.] INSURANCE – AUTOMOBILES 23-2-4387 Christine Dillard v. Hertz Claim Management and New Jersey Auto. Full Ins. Underwriting Ass’n, App. Div. (8 pp.) Where driver’s insurance policy was retroactively canceled because driver’s premium payment was dishonored for insufficient funds, after a car accident in which a passenger was injured, trial court properly held that underwriting association had to cover passenger, since the passenger is an innocent third-party, under the holding in Fisher v. New Jersey Auto. Full Ins. Underwriting Ass’n, 224 N.J. Super. 552 (App. Div. 1988). [Available online in N.J. Full-Text Decisions.] 23-2-4388 Dana Dunlop, et al. v. Joanne Herbert, App. Div. (6 pp.) Where plaintiff injured her back in a car accident, trial court erred in dismissing the complaint for failure to meet the verbal threshold, since plaintiff submitted objective medical evidence to sustain a category eight injury. NEGLIGENCE 31-2-4389 Judith Johnson and Rodman Johnson v. Underwood-Memorial Hosp., App. Div. (5 pp.) Where plaintiff was injured when concession booths fell on her at hospital- sponsored horse show, trial court erred in allowing hospital expert to testify that there were no reports about booths’ instability, even with limiting instructions that testimony was only relevant to show notice, since notice was irrelevant where landowner creates the dangerous condition. WORKERS’ COMPENSATION 39-2-4390 Richard Jenks v. Site Engineers, App. Div. (6 pp.) Where construction inspector was injured when a stick flew out of a co-worker’s hand while he was swinging at a ball, worker’s compensation judge erred in holding that the injury was not covered, since injury occurred while inspector was performing a service for his boss, and a co-worker propelled the stick. CRIMINAL LAW AND PROCEDURE 14-2-4391 State v. Christopher Crumb, App. Div. (13 pp.) Where defendant was charged with murder motivated by race in violation of N.J.S.A. 2C:12-1e, trial court erred in excluding defendant’s letters, which showed his hatred for African-Americans, since the risk of undue prejudice did not outweigh the letters’ probative value.[Available online in N.J. Full-Text Decisions.] 14-2-4392 State v. Mark Graham, App. Div. (7 pp.) Where defendant was convicted of third-aggravated assault, trial court properly held that defendant intended his communications to the victim’s wife to be either a threat or bribe and that the communications were admissible as proof of consciousness of guilt. 14-2-4393 State v. Maribel Melendez, App. Div. (5 pp.) In a trial for drug possession, prosecutor’s statements accusing defense counsel of lying were improper, since a prosecutor is not permitted to cast unjustified aspersions on defense counsel’s motives. 14-2-4394 State v. Jose Luis Ramos, App. Div. (7 pp.) In a trial for first-degree robbery, prosecutor’s statement–that because defendant admitted to stealing a car, the jury should believe that he was capable of robbing jewelry and money–were prejudicial, since the sole trial issue was defendant’s identification.

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