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Vol. 3 No. 116 DECISIONS RELEASED JUNE 21, 1995 STATE COURT CASES CONTRACTS — LIMITATIONS 11-2-5950 Norman Docteroff, et al. v. Barra Corp. of Am. Inc., et al., App. Div. (17 pp.) While it is true that the plaintiffs’ breach of warranty claim against roofer is governed by the Uniform Commercial Code’s four-year statute of limitations, despite a five-year roof warranty, the warranty extended to future performance and under the circumstances, the statute of limitations did not begin to run until the breach of the warranty was or should have been discovered; since the judge below did not make this analysis, summary judgment for the roof company was improper. [Approved for publication June 21, 1995.] [Available online in N.J. Full-Text Decisions.] DEBTOR/CREDITOR 15-2-5951 United Jersey Bank v. Emmes Investors Ltd., et al., App. Div. (8 pp.) The trial court did not abuse its discretion by not applying the entire controversy doctrine to bank’s suit against corporation’s principal in his capacity as loan guarantor for corporation where bank earlier had obtained a judgment against the principal on a personal loan, since, despite the fact that the principal had discussed settling both accounts, a proposed consolidation never took place and the loans were separate and discrete transactions. 15-2-5952 Crossland Federal Savings Bank v. Arthur Imperatore, App. Div. (12 pp.) Notwithstanding that parties to loan agreements chose New York law to govern the substantive issues, it is the forum state’s law that governs procedural (remedies) issues, and, therefore, New York law, which prohibits concurrent action on a guaranty when there is a pending foreclosure action, is not a barrier to bank’s case against debtor. INSURANCE — CANCELLATION 23-2-5953 James Zimmerman v. The N.J.A.F.I.U.A., et al., App. Div. (5 pp.) Judgment dismissing insured’s case against insurer for PIP benefits on the grounds that the policy had been canceled for non-payment before the accident was erroneous, since the defendant was entitled to a 15-day grace period after the premium due date appearing in the purported cancellation notice, and notice of termination was therefore premature and ineffective. INSURANCE — VERBAL THRESHOLD 23-2-5954 Vera Gaines v. Joseph Jara, App. Div. (7 pp.) While the plaintiff did prove injury as a result of the accident by sufficient objective evidence, and without minimizing her discomfort, the evidence of the injuries’ impact on her life did not reach the threshold level where she only lost five work days as a nurse, continued the same responsibilities and worked the same number of hours (much of the time on her feet), and could no longer could bowl twice a month, use her rowing machine or bicycle; therefore summary judgment for the defense was appropriate. LABOR AND EMPLOYMENT 25-2-5955 Philip L. Goldsmith v. Bd. of Review, App. Div. (4 pp.) Unemployment compensation benefits were properly denied to casino employee who alleged that he left his job because the smoke in the casino affected his health, since he did not present adequate medical evidence that the employment conditions caused any medical problem and production of general anti-smoking literature is not sufficient as such evidence. NEGLIGENCE 31-2-5956 Richard Demarco, assignee of Towne Auto Sales Inc. v. Allstate Insurance Co., App. Div. (4 pp.) When insurance company appraised damaged automobile after an accident and “totalled” it, and then sent a “stop storage” letter to auto yard at which vehicle was being stored, the vehicle’s owner assumed the risk of incurring additional storage expenses when it failed to remove the vehicle from the yard after the “stop storage” letter, even though negotiation of the property damage claim was continuing. PHYSICIAN/PATIENT 29-2-5957 Angelo LaRocca, administrator, et al. v. Sandra Hubbard, R.N., et al., App. Div. (14 pp.) Where the jury found nurse negligent in failing to sterilize glue gun used in hip-replacement surgery on plaintiffs’ decedent, and the negligence was the proximate cause of an infection that resulted in the patient’s death, it still could have found that the nurse’s negligence was not a proximate cause of any pain and suffering experienced by the patient before her death, and, therefore, jury verdict awarding damages for funeral costs only is affirmed. TAXATION 35-1-5958 Richard’s Auto City Inc. v. Director, Div. of Taxation, Supreme Ct. (28 pp.) Net operating losses incurred in past tax years by a corporation that has been merged into a successor corporation are not permitted, under the Corporation Business Tax Act, to be carried over and deducted by the surviving corporation in a subsequent tax year. [Available online in N.J. Full-Text Decisions.] EDITOR’S CORRECTION: Certain words were omitted erroneously from the digest of the first case in yesterday’s Alert, which may confuse the case’s meaning. The following is a corrected digest of that case, with the omitted words in brackets: ARBITRATION 03-2-5929 Max Bayroff Corp. v. Imperial Casualty & Indemnity Co., App. Div. (9 pp.) In a case where a building contractor and roofing contractor submitted their dispute to arbitration- -despite the fact that the action was not properly subject to compulsory arbitration–the resulting judgment is subject to the limitations inherent in that procedure, and, although it is binding on roofing contractor to the extent that it owes a certain amount to the general contractor, the judgment is not preclusive in subsequent litigation between the building contractor and the roofing contractor’s insurer on the issue of whether the roofing contractor is liable to building contractor [on grounds which would obligate the insurer to provide] indemnification.

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