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Vol. 3 No. 107 – JUNE 8, 1995 STATE COURT CASES CONTRACTS — REAL PROPERTY 11-2-5807 Rodney Poltorak v. Mary Beth Paynter, App. Div. (8 pp.) Where property owner placed title in his girlfriend’s name, but there was no consideration for the transfer, and where the agreement signed by the parties, with the advice of counsel, clearly stated that the girlfriend agreed to reconvey the property to the grantor or his designee upon demand, the trial court erred when it failed to order that the girlfriend convey the property to the designee. FAMILY LAW 20-2-5808 Laurel Von Gerichten v. Y. Lal Mahajan, App. Div. (4 pp.) Where a 1983 divorce agreement expressly provided that the sharing of college expenses for the children would be based upon the parties’ respective financial situations at the time the expenses were required to be met, the judge correctly focused on the parties’ present assets in apportioning equal responsibility for the college costs and rejected wife’s argument that there may have been a disproportionate settlement in the original agreement. INSURANCE 23-1-5809 Theresa Aubrey v. The Harleysville Ins. Companies, Supreme Ct. (18 pp.) Since statutory determination of whether a vehicle is underinsured requires ascertaining whether the liability limits of the person against whom recovery is sought are less than the amount of UIM coverage held by the person seeking the recovery, plaintiff — who recovered $40,000 from the other drivers involved in an accident, exceeding the $15,000 available to her under the policy — is not entitled to recover UIM benefits. INSURANCE — VERBAL THRESHOLD 23-2-5810 Rosa Ambrozio, infant, et al. v. Joaquim Ambrozio, et al., App. Div. (3 pp.) Where plaintiff incurred major depression, considerable weight loss and significant impairment of her social relationships as a result of injuries sustained in the accident, these manifestations are objective evidence of a type 8 injury, a “significant limitation of use of a body function or system.” 23-2-5811 Steven and Florence Elliott v. Susan J. Scott, App. Div. (9 pp.) Although there was some evidence of spasm related in the doctor’s initial examination of plaintiffs after the accident, there was no indication of how long such spasm lasted as to either plaintiff, nor did the doctor correlate any restrictions in range of motion with an objective finding of injury, nor did he report that either plaintiff was unable to pursue their usual and customary activites because of their physical conditions, and therefore summary judgment was proper for the defense. 23-2-5812 Halina Gayer, et al. v. Ginger A. Kruze, et al., App. Div. (10 pp.) An emergency room physician’s finding of “hematoma,” without any further mention in any subsequent medical report, is not sufficient objective evidence of injury to support a verbal threshold claim, nor are “grip tester” results, since they are based upon subjective patient response. LABOR AND EMPLOYMENT 25-2-5813 Elizabeth Monaghan v. Bd. of Review, App. Div. (3 pp.) Where employee objected to extending her duties to picking up trash and sweeping a parking area, and supervisor with whom she discussed her objections grabbed by the arm and told her, “either you do it or I’ll find someone else who will,” this one incident did not constitute good cause for the employee to leave her job and she was properly found to be disqualified for unemployment benefits. LABOR AND EMPLOYMENT — EDUCATION 25-2-5814 Middletown Twp. Bd. of Education v. Middletown Twp. Education Assoc., App. Div. (9 pp.) Arbitrator’s decision that board of education breached its policy and violated contract of girls’ bowling coach when it did not interview female applicant for the job of boys’ coach should not have been overturned, despite the fact that she was the only applicant (and where job was given to another person who had not applied for the job at the persuasion of the athletic director). NEGLIGENCE 31-2-5815 J. Marcia Green v. John Ivers, et al., App. Div. (5 pp.) Summary judgment was properly granted to owners of residential property and to municipality in case where plaintiff fell and was injured on a raised sidewalk, since residential owners are not liable for conditions of a sidewalk caused by the elements unless they negligently construct or repair the sidewalk, and the municipality was immune from suit for maintenance of the sidewalk, which it delegated to property owners. PHYSICIAN/PATIENT 29-2-5816 Frank Connors v. Jeffrey Roffman, et al., App. Div. (7 pp.) Where patient, who had no marks on his abdomen prior to going into the hospital for same-day nasal surgery, awoke from the surgery with painful burns on his abdomen, he did not have to prove what instrumentality caused the burn to survive the doctor’s motion for summary judgment, since, drawing all inferences in favor of the patient, a jury could conclude that the patient suffered the burn while in the operating room for the surgery and under the control of the doctor, and summary judgment should not have been granted to the doctor. WRONGFUL DEATH 40-2-5817 Robert Roszkowski, administrator, et al. v. State of N.J., Div. of State Police, et al., App. Div. (12 pp.) Where driver was killed when she crashed into a disabled vehicle on the side of Route 280, involuntary dismissal was improperly entered in favor of the state police, since there was sufficient evidence to raise a jury question of whether the actions or the non-actions of the police were a proximate cause of the accident. CRIMINAL LAW AND PROCEDURE 14-2-5818 State v. James G. Budis, App. Div. (25 pp.) Where alleged victim had a prior history of child abuse by another person and had been sent to special school because of her emotional and other problems, the trial judge erred in not reviewing the school records in camera in order to determine whether the records contained any relevant information concerning the victim’s memory skills or credibility problems, and the matter is remanded for a hearing on whether those records contain information that should have been available to the defense and whether the information may have changed the outcome of the trial. FEDERAL COURT CASES COMMERCE — ANTITRUST 08-7-5819 Storis, Inc. v. GERS Retail Systems, Inc., U.S. Dist. Ct. (15 pp.) Where developer/manufacturer of computer software solicited customers of a competitor by mail: (1) Taking the allegations of the complaint as true, the plaintiff has stated a claim for discriminatory and predatory pricing in violation of the Robinson-Patman Act, and defendant’s motion to dismiss is denied. (2) Since, even if defendant was successful in driving plaintiff out of business and taking all of its customers, defendant would then only have less than a 40% share of the total market, and such amount is insufficient as a matter of law to establish market power, defendant’s motion to dismiss the antitrust portion of the suit is granted. (3) Since plaintiff has not identified a single contract that it failed to consumate due to the actions taken by defendant, motion to dismiss claims of tortious interference with contract and prospective economic advantage are granted. (4) Since plaintiff has not alleged any facts suggesting that defendant acted with malice, motion to dismiss claim for product disparagement is granted. DEBTOR/CREDITOR 15-7-5820 FDIC, as Receiver for Broadway Bank & Trust Co. v. Linda Court, Inc., et al., U.S. Dist. Ct. (10 pp.) In an action where plaintiff, as receiver of failed bank, sought to foreclose on collateral when defendants defaulted on a loan agreement: (1) Since it is the counterclaim filed against the FDIC which constitutes an action against it, not the filing of the original complaint, removal to federal court was timely and defendants’ motion to remand is denied. (2) Since defendants have failed to exhaust their administrative remedies with respect to the allegations of recission, declaration of rights and money damages alleged in their counterclaim, the counterclaim is dismissed, however, defendants may amend their answer to plead recission as an affirmative defense. ENVIRONMENT — FRAUDULENT TRANSFERS — DEBTOR/CREDITOR 17-7-5821 Transtech Industries, Inc., et al. v. A&Z Septic Clean, et al. v. Charles Trapp, et al., U.S. Dist. Ct. (15 pp.) In an action involving various parties’ claims for contribution for cleanup of a landfill, where certain defendants counterclaimed against plaintiff to dismiss certain conveyances as fraudulent, alleging that the conveyances were made to diminish assets so the plaintiff would not be able to pay its fair share of cleanup costs, where plaintiff then moved to dismiss the counterclaim: (1) Defendants’ claims seeking contribution under CERCLA constitute a contingent and unmatured “right to payment” from plaintiff and qualifiies them as “creditors” who may proceed under the Uniform Fraudulent Transfer Act (UFTA), and the motion to dismiss is denied. (2) Since certain transfers pre-dated the effective date of the UFTA, the motion to dismiss the counterclaim as to those transfers is granted. (3) When defendants were originally sued by the EPA, they had grounds to bring a contribution action against plaintiff, therefore their claim for contribution arose before the stock buyback took place and they may proceed under N.J.S.A. 25:2-27(a). INSURANCE — DISABILITY 23-7-5822 Mark S. Hirsch v. First Unum Stock Life Insurance Co., et al., U.S. Dist. Ct. (16 pp.) Where a dentist’s license was suspended for his abuse of prescription drugs, and he then filed for disability benefits under two policies, stating that he was disabled as a result of his drug addiction and chronic hepatitis, utilizing the very day of his suspension as the first date of his disability, summary judgment in favor of the insurers, denying benefits, is granted, since it is clear that dentist could have worked (and did) while he suffered previously with both the addiction and the hepatitis, and the sole reason for his stopping work was the suspension of his license. A

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