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Vol. 3 No. 98 DECISIONS RELEASED MAY 25, 1995 BANKING — DAMAGES 06-2-5716 Wesley K. Bell, et al. v. Nat’l Westminster Bank, NJ, App. Div. (7 pp.) Summary judgment should not have been entered dismissing mortgagors’ complaint for damages against bank, which breached a settlement agreement to reinstate loan and went forward with foreclosure and obtained final judgment against mortgagors (later reversed by Appellate Division), damaging their credit rating and causing problems with their business. CORPORATIONS 12-2-5717 William G. Musto v. Vincent G. Vidas, et al., App. Div. (21 pp.) The trial court’s determination that majority shareholders’ conduct constituted oppression and breach of fiduciary duty against minority shareholder, in satisfaction of N.J.S.A. 14A:12-7(1)(c), is supported by substantial credible evidence and affirmed, however, with respect to the remedies for such conduct, inter alia, while there was evidence to support the findings regarding the irretrievable breakdown in relations between the parties, the trial court’s drastic remedy of ordering majority shareholders to sell their stock to minority shareholder, and to reinstate the latter to his former position as a director and officer, is reversed. [Approved for publication May 25, 1995.] [Available online in N.J. Full-Text.] DEBTOR/CREDITOR — LEVY 15-2-5718 The Central Jersey Bank and Trust Co. v. Polamar-Steinfeld Assoc. et al., App. Div. (7 pp.) Under the Multiple Party Deposit Account Act, since the trust account established by debtor for the benefit of his granddaughter belongs beneficially to him during his lifetime and is not an irrevocable trust, it is subject to levy and the order to turn the funds over is affirmed. FAMILY LAW 20-4-5719 Darlene Narvae v. Matthew Freestone, Chancery Div. (8 pp.) (1) Where husband’s income was decreased and his financial obligations as a result of having a second family increased, he showed a substantial change of circumstances and a reduction in his child support is appropriate. (2) In calculating the new amount of support, given the non-traditional custody/visitation arrangement between the parties where the husband has the children 39% of the time, he is entitled to a proportionate credit in that amount. [Approved for publication May 23, 1995.] [Available online in N.J. Full-Text.] 20-4-5720 Leonard Martinez v. Anna Martinez, Chancery Div. (17 pp.) Balancing the equities in a situation of a family on the economic brink, although reduction of support dollars to husband’s first family may pinch to some degree, the first family does not have the crisis of health, shelter and survival unknowingly faced by the newly-born son of the husband’s second family, and the interests of justice require a reduction. [Approved for publication May 23, 1995.] [Available online in N.J. Full-Text.] INSURANCE 23-1-5721 Prudential Property & Casualty Ins. Co. v. Monmouth Cy. Municipal Joint Ins. Fund, et al., Supreme Ct. (16 pp.) Where a public-entity employee is injured while working by an uninsured motorist, and seeks UM benefits from both the public entity’s insurer and his own personal insurance carrier, any arbitration award of UM benefits must be prorated between both carriers pursuant to the UM statute, N.J.S.A. 17:28-1.1c, and personal insurance does not have to be exhausted first. [Available online in N.J. Full-Text.] INSURANCE — VERBAL THRESHOLD 23-2-5722 Lillian E. Grescavage v. Glenn D. Cowan, App. Div. (7 pp.) While plaintiff may have satisfied the first prong of Oswin v. Shaw, there was no objective evidence that her injuries had a serious impact on her life, despite allegations that she could not perform the simplest of tasks, inasmuch as she only lost two weeks of work from a part-time job, her schooling was unaffected and she joined a gym after the accident and attended aerobics classes. NEGLIGENCE — SLIP AND FALL 31-2-5723 Marie Car, et al. v. Riverview Medical Ctr., et al., App. Div. (9 pp.) Trial judge erred in charging that a visitor to a hospital, who fell and was injured in the self-service hospital restaurant, had to prove the hospital or its employees had actual or constructive notice of the substance on which she slipped and fell, since a self-service mode of operation in itself creates the risk that food may fall to the floor from patrons’ trays, unknown to the employees. PHYSICIAN/PATIENT 29-2-5724 Alfonso Ingenito, et al. v. Clement A. Furey, Jr., M.D., App. Div. (11 pp.) Jury’s verdict in favor of patient, who alleged that his doctor performed a vasectomy upon him without his consent, is reversed since the judge’s charge to the jury invited inconsistent verdicts, interchanged elements of battery and informed consent in a confusing manner, was substantially incomplete and had a clear capacity to engender substantial confusion and mislead the jury during deliberation. WORKERS’ COMPENSATION 39-2-5725 Richard Buess v. Shallcross Express Inc., App. Div. (13 pp.) The judge of compensation having viewed the testimony of the petitioner’s witnesses as more credible than the respondent’s witnesses, his award to petitioner of 65% of partial permanent disability for mercury poisoning arising out of and in the course of his employment with respondent is affirmed since it could reasonably have been reached on sufficient credible evidence present in the record, with due regard to the opportunity of the judge to hear the witnesses and weigh their credibility. CRIMINAL LAW AND PROCEDURE 14-2-5726 State v. Andre Johnson, App. Div. (7 pp.) The decision of the trial judge granting defendant a new trial is affirmed for the reason that the judge failed to voir dire a juror about his comment that appeared to refer to defendant as a rapist. A

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