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Vol. 3 No. 85 DECISIONS RELEASED MAY 5, 1995 ADMINISTRATIVE LAW AND PROCEDURE 01-2-5562 A. C. v. Div. of Medical Assistance and Health Svcs. of the N.J. Dept. of Human Svcs., et al., App. Div. (4 pp.) Since, under the applicable rules for obtaining medical assistance, resources owned by both spouses must be counted toward the eligibility requirement, the wife’s refusal to provide information regarding her resources justified the denial of medical assistance to the husband. ATTORNEY/CLIENT 04-1-5563 In the matter of Howard C. Trueger, An Atty. at Law, Supreme Ct. (26 pp.) Where prior ethical violations, along with present ethical violations, demonstrate that attorney has repeatedly failed to meet his professional responsibilities, the Court must act to protect the public and suspend the attorney for one year; to return to practice, the attorney must prove his fitness after the suspension and practice under a proctor for two years. [Available online in N.J. Full-Text Decisions.] DEBTOR/CREDITOR — INSURANCE — DISCOVERY AND EXECUTION 15-2-5564 Norbert M. Roman v. American Fire & Marine Ins. Co., et al., App. Div. (11 pp.) In a case where creditor of foreign insurance company sought discovery and execution against New Jersey assets held for insurer by insurer’s broker, the Law Division erred (1) in unqualifiedly denying discovery where the court could have entered a protective order limiting discovery, and (2) by enjoining execution since broker owed the insurer a debt in some amount each month, and that debt is a “right” or “credit” within the meaning of the law and thus subject to execution. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-2-5565 Robert Eber v. Deborah Marie Eber, App. Div. (3 pp.) The judge did not abuse his discretion in modifying husband’s visitation schedule to accomodate the increased distance he had to travel when wife moved, but judge did abuse his discretion in modifying earlier 50-50 child-care cost-sharing agreement by ordering that wife either take her youngest child to her estranged in-laws out-of-state for child-care or bear 100 percent of the costs. INSURANCE — ISSUE PRECLUSION — ENTIRE CONTROVERSY 23-2-5566 Ohio Casualty Ins. Co. v. Margaret Powell, et al., App. Div. (13 pp.) Where plaintiff sought appointment of an arbitrator in her underinsured motorist action, and the insurer chose not to answer and did not move to appeal or vacate the order, the judge’s order requiring insurer to appoint an arbitrator was preclusive on the issue of the existence of UIM coverage, and the insurer cannot revisit the issue in a subsequent declaratory judgment action. INSURANCE 23-2-5567 Unsatisfied Claim and Judgment Fund Bd. v. N.J.A.F.I.U.A., App. Div. (4 pp.) In the absence of a specific statutory requirement or applicable regulation, it is not necessary for an insurer to make the certification of mailing of the policy cancellation notice an integral part of the document itself, and where certification was on a separate document listing various individuals to whom notices were sent, it satisfied statutory requirements, and cancellation was proper. INSURANCE — VERBAL THRESHOLD 23-2-5568 Gaynell Jenkins, et al. v. Manuel G. Alves, App. Div. (2 pp.) Since the presence of untreated spasm three years after the accident is not in itself sufficient objective medical evidence of serious injury, plaintiff’s case was properly dismissed for failure to satisfy the verbal threshold. LABOR AND EMPLOYMENT — EDUCATION 25-2-5569 James Kochman v. Bd. of Educ. of the Borough of Keansburg, App. Div. (7 pp.) Although the plaintiff teacher’s overall extensive absenteeism was for legitimate reasons of illness or injury, the local board of education’s withholding of salary increments was reasonable since the board considered the effect of this absenteeism on the continuity of the educational program. REAL ESTATE — TITLE INSURANCE 34-2-5570 Trico Mortgage Co., Inc. v. Penn Title Ins. Co., et al., App. Div. (16 pp.) The fact that title company received late notice of mortgage company’s claim for priority problem did not cause it to suffer “appreciable harm,” since it could not have attacked the legality of the prior mortgage because its own mortgage was forged and thus invalid. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] TAXATION — ESTATES — RATIO TAX 35-2-5571 Estate of Baier Lustgarten v. Director, Div. of Taxation, App. Div. (13 pp.) Since it was not disputed that decedent intended stepson to receive the nursery business and real estate on which it was located, the form of the gift, as a vested remainder interest of a Q-Tip trust rather than as a present interest, does not defeat what would otherwise clearly have been a specific legacy, and therefore the property is not subject to the ratio tax. [Approved for publication.] [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-5572 State v. Michael R. Martell, App. Div. (4 pp.) Defendant’s conduct in making two telephone calls to complainant and not leaving messages on the answering machine simply does not rise to the level of conduct necessary to make out a harassment case, and the conviction is reversed. 14-2-5573 State v. Julius J. Boeglin, IV, App. Div. (4 pp.) Since the crux of a motion to suppress, involving the warrantless search of a commercial building in an industrial area, was whether the investigating officer’s testimony concerning the reliability of the informant was credible, the matter must be remanded because the motion judge failed to make explicit findings concerning this credibility. 14-2-5574 State v. Richard S. Storm, App. Div. (6 pp.) There was adequate evidence before the court to justify its finding that defendant was guilty of speeding violations, even without the disputed radar readings, where police officer was experienced and credible, there was a large discrepancy between the estimated speed and speed limit, and defendant was observed from close range to be traveling at a high rate of speed and never slowed down while being observed. DAILY DECISION ALERT May 8, 1995 There is no Daily Decision Alert today according to the . The Bankruptcy Alert follows:

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