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Vol. 3 No. 83 DECISIONS RELEASED MAY 3, 1995 EVIDENCE 19-2-5542 George Cook, et al. v. Charles J. DePrince, et al., App. Div. (9 pp.) Where, in a suit seeking abatement of an alleged noise nuisance, plaintiffs told the court that they wanted to call two witnesses to rebut defendants’ contention that suit was racially motivated, and the judge heard the testimony and found that the plaintiffs failed to prove the nuisance, plaintiffs’ argument on appeal that they were precluded from presenting testimony to rebut the racial motivation charge since they could have produced other rebuttal witnesses was unfounded, and the judge’s decision is affirmed. INSURANCE 23-2-5543 J.S. Hovnanian & Sons, Inc., et al. v. U.S.F. & G. Co., et al., App. Div. (7 pp.) (1) In developer’s declaratory judgment action (seeking coverage and defense in action for alleged flooding of neighboring lands during construction), trial judge was correct in dismissing the action since the carriers, who were not notified of suit until more than two years had passed, had suffered “appreciable prejudice” as a result of developer’s counsel’s trial strategies. (2) Neighboring landowner’s application to have insurance proceeding record unsealed is granted, provided that a hearing is held to excise privileged portions. JURISDICTION 24-2-5544 Phoenix Leasing Inc. v. Jersey Building Components, Inc., et al., App. Div. (3 pp.) A provision in a computer equipment lease selecting California as the forum for litigation arising out of the lease is not unfair, unreasonable or contrary to New Jersey public policy and, since lessor has failed to show why it should not be enforced, judgment entered in California will be given full faith and credit in New Jersey. REAL ESTATE — FORECLOSURE 34-2-5545 Pamrapo Savings Bank, S.L.A. v. Sudesh Mehta, et al., App. Div. (2 pp.) Landowner’s answer to the bank’s foreclosure proceeding was properly stricken since it did not challenge any of the essential foreclosure elements, but instead alleged that the bank’s failure to lend the mortgagor money in connection with another project (also the subject of separate litigation) required him to divert all of his available funds to the other project. CRIMINAL LAW AND PROCEDURE 14-2-5546 State v. James E. Murphy, App. Div. (4 pp.) The out-of-court photographic identification of the defendant was not impermissibly suggestive given the victim’s ability to view the defendant at the time of the crime, his degree of attention, and the degree of certainty he showed in making the identification, and, further, the judge fully instructed the jury as to the use of the police photograph, thus eliminating any negative connotations that could have been drawn.

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