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VOL. 3 NO. 53 DECISIONS RELEASED MARCH 21, 1995 ADMINISTRATIVE LAW AND PROCEDURE – SECURITIES 01-2-5213 I/M/O App. of N.J. Bureau of Securities for an Open Commission, et al., App. Div. (6 pp.) The orders of the Chancery Division “issuing commissions” for the taking of out-of-state depositions are reversed since there is nothing in the law giving the securities bureau the authority to take extraterritorial depositions. [Approved for publication Mar. 20, 1995.] ARBITRATION AND MEDIATION 03-2-5214 Dorleen Baugh, et al. v. Willie Baugh, et al., App. Div. (6 pp.) An order confirming an arbitration award to an infant plaintiff should not have been made a final judgment since confirmation of an infant’s award is not meant to eliminate the rule that requires a judge to approve any settlement entered into on behalf of a minor. 03-2-5215 Audra Kitner v. MTF, et al., App. Div. (8 pp.) In this claim for uninsured motorist benefits, the plaintiff’s alleged fraud (whether she actually was in the vehicle at the time of the accident) was among the issues presented to the arbitrators, who rejected defendant’s proofs and made an award to the plaintiff, and their decision is invulnerable except for fraud, corruption or similar wrongdoing on the part of the arbitrators. CIVIL PROCEDURE 07-2-5216 John Melis v. Joseph Yannai, et al., App. Div. (4 pp.) Where there was a dispute as to whether the defendants received actual notice of the trial date, the judge erred by not having an evidentiary hearing on the issue and his order denying their motion to vacate default is reversed. 07-2-5217 August P. Van DeVelde v. Twp. of West Milford, et al., App. Div. (7 pp.) Since plaintiff failed to prove that he was the prevailing party under the terms of the Frivolous Claim Act, and that adjoining landowners defense was frivolous, legal fees should not have been awarded to the plaintiff under that act. INSURANCE – VERBAL THRESHOLD 23-2-5218 Kathleen Priest-Esser v. Brian L. Jones, App. Div. (5 pp.) Where no doctor recommended bed rest for the plaintiff and none of the doctors stated that plaintiff sustained a permanent or significant injury or opined that her injuries prevented her from performing any of her usual activities, her case was properly dismissed for failure to meet the verbal threshold. 23-2-5219 Thomas J. Cicero v. Linda Kyriakoulis, App. Div. (5 pp.) Although plaintiff suffered a deviated septum demonstrated by objective medical evidence, plaintiff alleged no significant effect on his lifestyle, other than the fact that he breathes slightly harder when he runs, so his injuries fail to satisfy the verbal threshold because of their minimal extent, not their nature, and his complaint was properly dismissed. LABOR AND EMPLOYMENT – WORKERS COMPENSATION 25-2-5220 Wallace Burham, et al. v. Haybuster Mfrg., Inc., et al., App. Div. (10 pp.) The trial court erred in granting summary judgment in favor of tree service since there was a genuine issue of material fact concerning whether plaintiff was an employee or was engaged only in casual employment at the time of injury, and the fact that plaintiff’s workers’ compensation claim was not contested by the carrier is not determinative of the issue. LANDLORD/TENANT 27-2-5221 Pie Pie Love, Inc. v. West Belt Mall, et al., App. Div. (10 pp.) The trial judge correctly interpreted the clear and unambiguous terms of a settlement agreement which was placed on the court’s record, and actually modified it to give tenant–an ice cream store–more expansive non-competition protection, and the judge’s order enforcing the settlement is affirmed. LAND USE – MUNICIPAL LAW 26-2-5222 Paul Soltys, et al. v. Borough of Seaside Park, et al., App. Div. (6 pp.) A statute that permits the rebuilding of a nonconforming structure only if it is partially destroyed supersedes (and renders void) a municipal ordinance which permits rebuilding in the event of total destruction, and the Law Division’s judgment overturning the Board of Adjustment’s denial of a variance is reversed. PRODUCTS LIABILITY 32-1-5223 John J. Roberts, et al. v. Rich Foods, Inc., et al., Supreme Ct. (25 pp.) To preclude the defendant’s use of the Section 3a(2) defense under the N.J. Products Liability Act, the plaintiff bears the burden of proving that the product’s danger feasibly could have been eliminated without impairing the product’s usefulness. REAL ESTATE – SHERIFF’S SALES 34-4-5224 Empire of America Realty Credit Corp. v. Robert J. Mancine, et al., Chancery Div. (9 pp.) No county sheriff has the authority to conduct a sheriff’s sale prior to 12:00 noon, or after 5:00 p.m., which are times that have been legislatively set as the earliest and latest times that sheriffs’ sales are to be conducted. [Approved for publication Mar. 21, 1995.] TORTS – CONDEMNATION – LIMITATIONS 36-2-5225 Russo Farms, Inc., et al. v. Vineland Bd. of Education, et al., App. Div. (12 pp.) Where a high school was built across the street from the plaintiffs property, resulting in flooding, plaintiffs’ various tort and taking claims against the municipality, the architect and the contractor should not have been summarily dismissed all on the basis that they were barred by the applicable statutes of limitation and repose, as well as the notice provisions of the Tort Claims Act, since separate causes of action arose with each incursion of floodwater, and some claims may still stand. [Approved for publication Mar. 21, 1995.] CRIMINAL LAW AND PROCEDURE 14-2-5226 State of New Jersey v. Robert Carman, App. Div. (6 pp.) Although defendant’s conduct toward his victim was despicable, the proofs fail to warrant a finding of aggravated assault, and his conviction must be modified to one for simple assault, a disorderly persons offense. 14-2-5227 State of New Jersey v. Al-Amin Pasha, App. Div. (7 pp.) The trial judge erred in admitting hearsay statement of a witness as a prior inconsistent statement offered to impeach the witness’s credibility, since the statement would be admissible only if made by the witness while he was testifying where he had the opportunity to deny making the statement or to explain the apparent inconsistency, and further. there was no evidence here that the witness was testifying from personal knowledge. [Approved for publication Mar. 21, 1995.] OPINION APPROVED FOR PUBLICATION: 23-2-5207 Michael Allgor v. The Travelers Ins. Co. (Mar. 20, 1995). -

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