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VOL. 3 NO. 94 DECISIONS RELEASED MAY 19, 1995 ATTORNEY/CLIENT 04-1-5662 In the Matter of Dennis M. Barlow, Esq., Supreme Ct. 114 pp.) Since as the record demonstrates by clear and convincing evidence that attorney knowingly misappropriated clients funds, he must be disbarred. 04-2-5663 Feldman, Gold & Wachtel v. Techtron, Inc., et al., App. Div.(9 pp.)Judge’s action in granting summary judgment to law firm on its suit for counsel fees was premature since discovery had not been completed and, if clients prevailed on their malpractice counterclaim, judgment for legal fees might have been precluded. CORPORATIONS 12-2-5664 Franklin J. Knecht v. Mandek Corp., et al., App. Div. (11 pp.) While the trial court had the equitable power to order that corporation repay loans to its terminated president, despite ex-president’s misconduct, the court must examine the equities of its order regarding the ability of the corporation to repay the debt, and the terms of repayment, and the matter is therefore remanded. [Approved for publication May 19, 1995.] INSURANCE 23-2-5665 In the Matter of the Rehabilitation of Mutual Benefit Life Ins. Co., et al. v. Andrew J. Karpinski, et al., App. Div. (6 pp.) The trial judge erred when he found that the surrender of two disability policies, with no mention of any claimed disability, terminated all of policyholder’s rights to file claims under the policies, including those that might already have accrued. INSURANCE — VERBAL THRESHOLD 23-2-5666 Mieczysla Jozefczyn v. Elizabeth A. Ahlfeld, App. Div. (5 pp.) A 71-year-old plaintiff who suffered strain and sprain of his shoulder and was treated for only four months failed to provide the necessary objective medical proof of serious injury to satisfy verbal threshold requirements, and summary judgment for defendant was proper. JURISDICTION 24-2-5667 Monticello Ins. Co. v. Stateco Administrative Svcs., et al., App. Div. (6 pp.) Since insurer wrote its policy to cover a California insurance brokerage business and claims in that state, it would be unfair to require that witnesses in litigation arising out of the insurance policies issued throughout the country travel from various states to New Jersey merely because the home office of the insurer is located here, and, therefore, insurer’s complaint against California insured for reimbursement of deductible in a malpractice settlement was properly dismissed on the grounds of forum non conveniens, and suit should be heard in California. LABOR AND EMPLOYMENT — PHYSICIANS 25-2-5668 Union Radiology Group, P.A., et al. v. Union Hospital, et al., App. Div. (7 pp.) Hospital’s termination of radiologist s privileges was proper since the doctor’s repetitive, disorderly and offensive conduct disrupted the operation of the hospital and had an adverse impact on the hospital and the care which it afforded to patients, and there was no evidence that doctor s attitude would change. NEGLIGENCE 31-2-5669 Richard Allen Parks, Adm r. v. Pep Boys, et al., App. Div. (20 pp.) Since there were factual questions in analysis of whether an automobile parts store was negligent in selling freon to an underage buyer, that issue was for the jury, and summary judgment was properly denied to store, but, while it may be argued that the store should have better monitored the sale of freon, there was no proof of intentional and deliberate sale to the minors, and court should have granted the part of store s motion seeking dismissal of the count for punitive damages. [Approved for publication May 19, 1995.] PHYSICIAN/PATIENT 29-2-5670 Orlando Perez, et al. v. Steven Cangiano, D.P.M., et al., App. Div. (12 pp.) Where patient was not adequately advised of the risk of delay in his healing, the pain he would experience and his inability to walk and engage in everyday activities, evidence was sufficient to support jury’s finding that podiatrist failed to secure an informed consent from patient before performing foot surgery, and malpractice verdict is affirmed. PRODUCTS LIABILITY 32-2-5671 Thomas Middleton, et al. v. Dreis & Krump Mfrg. Co., App. Div. (22 pp.) In finding that the defect in defendant s machine was a proximate cause of the accident, the jury necessarily concluded that, even if the press brake had been substantially altered, the alteration was, at most, a contributory or concurrent cause, and not the sole cause of the injury to plaintiff, therefore, the error in the judge s instruction concerning substantial alteration was not plain error. WORKERS COMPENSATION 39-2-5672 James Sozio v. Acme Markets, Inc., et al., App. Div. (5 pp.) The record supported the judge’s findings that, before the subject accident, petitioner could work and carry out his daily life, but that, since the accident, he had been prevented from working and his ability to engage in daily activities had been significantly limited, and judgment that subject accident aggravated petitioner’s pre-existing condition is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-5673 State v. Samuel Mincey, App. Div. (11 pp.) Since defendant sought DNA testing prior to trial, his post-conviction order denying such discovery is reversed and he is now entitled to obtain from the prosecutor the relevant evidence, if preserved, necessary for DNA testing to be done. 14-2-5674 State v. Jose A. Rivera, App. Div. (15 pp.) Defendant’s life sentence is set aside since the judge did not mention the mitigating factors of defendant’s youth, his lack of a prior record, and the lesser sentences imposed on the co-defendant and the actual perpetrator of the felony murder, and reconsideration of the sentence is necessary. 14-2-5675 State v. Kenneth Lott, App. Div. (10 pp.) Since acquittal of the commission of a crime with a gun does not necessarily establish that the gun’s prior possession had always been for a lawful purpose, the judge erred in dismissing the count against defendant for possession of a handgun for an unlawful purpose as inconsistent with his acquittal on other charges. 14-2-5676 State v. Leroy Stuckey, App. Div. (7 pp.) The jury charge was deficient and requires reversal of the conviction of possession of a handgun with the purpose to use it unlawfully against another since the judge did not identify the nature of the unlawful purpose the jury was required to find before it could conclude that defendant was guilty of the offense. 14-2-5677 State v. Robert M. Fillippini, App. Div. (4 pp.) While defendant’s drunken verbal conduct (upon being arrested for urinating in a public place) was undoubtedly offensive, that does not render it penal under an ordinance which refers only to indecent gestures or acts, and the conviction under that ordinance is reversed.

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