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Vol. 3 No. 82 DECISIONS RELEASED MAY 2, 1995 BANKING — DEBTOR/CREDITOR 06-2-5531 Midlantic Nat’l. Bank v. Southgate Stables, et al., App. Div. (3 pp.) The motion judge acted precipitously and improvidently in granting summary judgment to general partner and guarantor of note in suit for recovery on note since, even though there was evidence that guarantor’s signature was forged, judge should have given bank a plenary hearing to pursue the merits of the forgery defense. 06-2-5532 Nat’l Westminster Bank v. Taylor of Betty Owen of Bloomfield, N.J., Inc., et al. and Robert S. Wildish, et al., App. Div. (4 pp.) Since it was clear that none of the parties intended that annuities would be used as collateral for a second loan, the judge erred in concluding, based on a future advances clause in the first loan, that the annuities were security for the second loan by operation of law. 06-2-5533 Nat’l Westminster Bank v. Taylor of Betty Owen of Bloomfield, N.J., Inc., et al. and William N. Wildish, App. Div. (4 pp.) Judgment was properly entered in favor of bank against guarantor of loans despite guarantor’s argument that the bank failed to exhaust collateral first, since guaranty was unconditional and creditor is permitted to move against guarantor without first seeking recourse against collateral or the principal debtor. CIVIL PROCEDURE — ASBESTOS LITIGATION 07-2-5534 Marvin and Alice Meyermann v. Eagle Picher Industries, et al., App. Div. (13 pp.) Trial judge was correct in denying defendant’s request for a mistrial since, even though comments made by co-defendant’s attorney implying that defendant was shirking and not owning up to its responsibilities were forceful, such “bickering” and “finger-pointing,” is understandable when read in context, and a strong instruction could effect a cure. CONTRACTS 11-2-5535 Morty Wolosoff v. James Wolosoff, App. Div. (12 pp.) Since the record showed an apparent conflict of interest and there was an evolution of distrust and animosity between the parties, indemnitee was justified in rejecting indemnitor’s offer of joint representation and obtaining independent counsel to represent his personal interest in the litigation, and indemnitor is responsible for personal attorney’s counsel fees under the indemnification agreement. PHYSICIAN/PATIENT 29-2-5536 Robbi A. Struzziery v. Emergency Medical Associates, et al., App. Div. (8 pp.) Since plaintiff offered no expert testimony to show that either the hospital’s accreditation manual or the emergency room manual were relevant to establishing a standard of care for emergency room physicians, exclusion of these documents from evidence was proper, and judgment that doctor did not deviate from acceptable medical practice is affirmed. REAL PROPERTY — FORECLOSURES — PERSONAL JUDGMENTS 34-2-5537 Carpenter’s Local Union #964 Pension Fund, et al. v. J.E.F. Associates, et al., App. Div. (4 pp.) Entry of personal judgment against guarantors of mortgage notes prior to the foreclosure sale was proper, since court order specified that double recovery was prohibited and also precluded execution of judgment until after the foreclosure sale. TORTS — DEFAMATION 36-2-5538 Thomas A. Troyer v. Michael J. Grecco, et al., App. Div. (12 pp.) Plaintiff, who regularly attended town council meetings as a political/civil activist and utilized the media to present his point of view, was a public figure and failed to meet his burden of demonstrating by clear and convincing evidence that a councilman acted with actual malice in publishing allegedly defamatory statements. TORTS — FICTITIOUS DEFENDANTS 36-2-5539 Juanita Corum-White v. Upsala College, et al., App. Div. (12 pp.) The trial judge properly precluded plaintiff from relying on the “fictitious party” rule to amend her complaint to add a new individual party five years after the alleged tortious conduct where she knew, or should have known, that an individual defendant was involved in the tort and had only added a fictitious business organization to her complaint. WORKERS’ COMPENSATION 39-2-5540 Walter Milos v. Exxon Co., USA, App. Div. (7 pp.) An employee’s participation in an employer-funded, voluntary program to monitor the existence or progression of asbestos-related diseases constitutes “medical treatment” which extends the jurisdictional limitations period set by N.J.S.A. 34:15-27 for an application to review or modify an award. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] 39-2-5541 Lawrence Gonnello v. Fair Haven Seafood Corp., et al., App. Div. (5 pp.) There was substantial credible evidence in the record to support the judge’s factual finding that petitioner’s subsequent employments had no impact on his arthritic condition and his determination that seafood company was therefore solely responsible for the petitioner s permanent and total disability.

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