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Vol. 3 No. 109 DECISIONS RELEASED JUNE 12, 1995 STATE COURT CASES ATTORNEY/CLIENT — FEE ARBITRATION 04-2-5839 Paul J. Linker, et al. v. The Company Car Corp., App. Div. (14 pp.) Since the rules do not permit any review on the merits of an arbitrated fee award, and whatever limited review may be available must be to the District Review Board, the law division judge had no power to review the arbitration panel’s decision and erred in vacating the award. [Approved for publication June 12, 1995.] [Available online in N.J. Full-Text Decisions] BANKING 06-2-5840 Midlantic Nat’l Bank v. Schug Constr., Inc., et al., App. Div. (4 pp.) Bank’s cause of action against holder in due course was based on facially valid notes in its files which had not been redeemed or canceled, and which antedated the “replacement notes” upon which the holder in due course relied, and since it was the holder’s responsibility to either acquire and destroy previously made notes or to assure that they were canceled, and this was not done, the bank was entitled to summary judgment against the holder in due course. 06-2-5841 County Concrete Corp. v. Nat’l State Bank, et al., App. Div. (9 pp.) Where owner of mall construction project issued a check to general contractor and two subcontractors to keep project afloat, but one of subcontractors forged endorsement and appropriated funds before second subcontractor could be paid, summary judgment should not have been granted to the banks in the unpaid subcontractor’s suit, since there were material issues of fact as to whether a second check issued by the general contractor was a “replacement check” (such that subcontractor would not have suffered damage), and whether banks (regardless of the resolution regarding the second check) are absolutely liable for their actions by statute. 06-3-5842 North Jersey Svgs. & Loan Assoc. v. Fidelity and Deposit Co. of Md., Law Div. (32 pp.) On bank’s motion for summary judgment, alleging that insurer owed it coverage under blanket bond for alleged fraud and dishonesty of its vice president and a servicing contractor, coverage is denied since the evidence does not show that either the vice president or the contractor acted with manifest intent to cause a loss to the bank or financially benefit themselves or a third party. [Approved for publication June 12, 1995.] [Available online in N.J. Full-Text Decisions] CORPORATIONS 12-2-5843 Samuel Hassine v. Colorforms, et al., App. Div. (7 pp.) Where plaintiff was hired as a corporation’s president and chief operating officer by the CEO and majority stockholder while the company was in the midst of a family battle in the chancery division, and an injunction was in place against CEO, there were genuine issues of fact regarding the timing of the alleged employment contract and whether plaintiff’s vested rights under that contract, if any, were subject to retroactive nullification without his having received notice of the chancery proceedings, and summary judgment should not have been entered against him. FAMILY LAW 20-2-5844 Susan Behul v. Michael Behul, App. Div. (3 pp.) Where order granted father extended weekend visitation with his children, it was not an abuse of discretion for the trial judge to require the husband during those visitations to take the children to Sunday School and his younger son to Cub Scout meetings, since children need uniformity in order to promote a sense of stability, and it did not put any undue hardship on father. 20-2-5845 Sharol Lewis v. James F. Lewis, App. Div. (7 pp.) Although husband’s mortgage delinquencies were persistent, none of the default periods exceeded six months and, therefore, he was not in violation of the property settlement agreement, and judge was correct in ordering that wife could not compel properties’ sale on that ground; but when her application is viewed as one for PSA modification under R. 4:50-1(f), remand is appropriate since the persistent delinquencies, which have affected wife’s credit rating, may make strict compliance with the PSA unfair and inequitable. INSURANCE — MORTGAGES 23-2-5846 Metrobank for Savings, F.S.B. v. Condorp, Inc., et al., App. Div. (6 pp.) In a case where a condominium structure was destroyed by fire, and insurer, through its agent, issued partial fire damage check to owner, which misappropriated funds, in mortgagees’ suit against insurer and agent, (1) verdict against insurer is affirmed, but verdict against agent is reversed, since agent cannot be negligent in failing to provide coverage when the jury found that there was coverage, and (2) mortgagees’ contention that proper measure of damages should have been the amount due on their mortgages at the time of the fire is correct and matter is remanded for recomputation of damages. INSURANCE — PIP 23-3-5847 Reuven Tyberg v. George Kokinidis, et al., Law Div. (16 pp.) (1) Under either New York or New Jersey law, plaintiff’s insurer does not have a lien against any settlement in favor of plaintiff, nor does it have a right to reimbursement from tortfeasors, for PIP payments already made to plaintiff. (2) Although the “Deemer Statute” grants plaintiff $250,000 in benefits, this does not mean that the additional $50,000 in supplemental PIP benefits, for which he contracted and paid premiums, should be denied to him. [Approved for publication June 12, 1995.] [Available online in N.J. Full-Text Decisions] INSURANCE — VERBAL THRESHOLD 23-2-5848 Anthony Mihalic v. Bruno Binda, App. Div. (2 pp.) Notwithstanding the “esoteric nomenclature” in the plaintiff’s chiropractor’s report, the trial court correctly granted summary judgment to the defendant, finding that plaintiff’s injuries, which were basically soft-tissue, did not have a serious impact on his life, since plaintiff still participated in sports, “worked out” at a gym, and passed his state police physical examination, which included a 1.5 mile run in under 12 minutes, 35 sit-ups and 35 push-ups. REAL PROPERTY — BROKERS’ COMMISSIONS 34-2-5849 Feist & Feist Realty Corp. v. 10 Park Place Assoc., et al., App. Div. (13 pp.) Where commission agreement stated that property owner and its successors were responsible for rental commissions on renewal options, lease extensions and taking of additional space, broker was entitled to a commission for the month-to-month extension of the lease after the original lease expired, but not on a new lease (negotiated after the tenant had indicated that it would not renew and then changed its mind), since the new lease was entirely different and the terms were substantially changed from the original lease. CRIMINAL LAW AND PROCEDURE 14-2-5850 State v. Ambrose Harris, App. Div. (15 pp.) In a case where a black man raped and murdered a white woman in Mercer County, (1) there is more than adequate support in the record for the trial court’s findings that the Trentonian, as part of a “vengeance seeking crusade” against defendant, has published a constant “stream of invective” against the defendant which could taint the trial, and the trial court’s decision that the case should be tried before a foreign jury is affirmed, and, (2) to protect the defendant’s right to a jury that is reasonably comparable to one drawn from a representative cross-section of the community in which the crime was committed, the trial court should consider racial demographics together with other relevant factors in selecting the source of a foreign jury; therefore, the designation of Hunterdon County as the source county for the jury panel is reversed. [Approved for publication June 12, 1995.] [Available online in N.J. Full- Text Decisions] 14-2-5851 State in the Interest of J.G., et al., Chancery Div. (30 pp.) In a sexual assault case, since statutorily-mandated testing of the juvenile perpetrators for HIV infection would be of no use in the victim’s diagnosis, treatment or psycho-social recovery, the state has not demonstrated a close and substantial relation of the statutory scheme requiring such testing (and reporting) to the compelling governmental interest in assisting sexual assault victims, and the statutes are unconstitutional under the Fourth and Fourteenth Amendments of the Constitution. [Approved for publication June 12, 1995.] [Available online in N.J. Full-Text Decisions]

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