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Vol. 3 No. 63 DECISIONS RELEASED APRIL 4, 1995 AGENCY AND PARTNERSHIP 02-2-5316 Nat’l State Bank v. Harry E. Weaver, et al., App. Div. (6 pp.) Since there had been no showing that income derived from a partnership would be sufficient to satisfy the bank’s judgment against general partner, the judge appropriately ordered the sale at auction of debtor’s partnership interest, and correctly held that the remaining partners had no ability to impose conditions on the purchaser of the interest, beyond what was provided for in the partnership agreement or Uniform Partnership Act. CIVIL PROCEDURE 07-2-5317 E.J. Crosby Co., Inc. v. Merrill Lynch Pierce Fenner & Smith, Inc., App. Div. (8 pp.) The trial judge was justified in dismissing excavation subcontractor’s complaint, despite the fact that defendant did not make a motion to dismiss and despite the fact that discovery was not yet complete, where plaintiff had failed to cooperate in discovery, failed to pay sanctions, withheld vital information and failed to diligently pursue its claim. CIVIL PROCEDURE — SETTLEMENTS 07-2-5318 Diana Celletti, et al. v. Clover, a Div. of Strawbridge and Clothier, App. Div. (4 pp.) Defendant was not entitled to insert, unilaterally, terms into a release that had never been discussed in settlement negotiations or agreement, and the trial judge correctly enforced the settlement and ordered the defendant to pay the settlement proceeds, despite the fact that plaintiff refused to sign defendant’s release form. COMMERCE — BUSES 08-2-5319 Hudson Transit Lines, Inc. v. Inner Circle Qonexions, Inc., et al., App. Div. (11 pp.) Judge,s finding that defendant, on its own and then through its agents, operated a bus route identical to that of the plaintiff, without obtaining a certificate of authority from the state Department of Transportation, and continued to do so in defiance of two cease-and-desist orders and a preliminary injunction, was amply supported by the record, and his award of compensatory and punitive damages to plaintiff is affirmed. CORPORATIONS 12-2-5320 Robert V. Carton v. Deal Golf & Country Club, App. Div. (6 pp.) Judge was correct in finding that a corporate resolution of defendant club to finance improvements by requiring members, such as plaintiff, to purchase shares of stock as a continued condition of membership, is valid and enforceable; the stock transfer restrictions contained in the amended by-laws, however, are not valid, and that part of the judgment is reversed. ENVIRONMENT 17-2-5321 In the Matter of Waterfront Dev. Permit … Issued to Crown Energy, et al., App. Div. (6 pp.) The state environmental department’s decision to issue a waterfront development permit to Crown Energy L.P., to construct and operate a new coal-fired electric generating facility, is affirmed since there was a sufficient showing that the power is needed and that there is no better alternative site. FAMILY LAW 20-2-5322 Denise Bahnsen v. Nicholas A. LaPolla, App. Div. (3 pp.) While N.J.S.A. 2A:17-56.23a bars retroactive modification of child support, defendant may avoid the bar based on estoppel or other equitable grounds depending on a careful analysis of the facts; this matter, therefore, is remanded to the trial judge for such an analysis. INSURANCE – VERBAL THRESHOLD 23-2-5323 Henry David Clybourn v. Frank J. Rizio, Jr., et al., App. Div. (6 pp.) The motion judge correctly dismissed plaintiff’s complaint where there was a failure to prove a nexus between any injury caused by the accident in this case as opposed to symptoms caused by plaintiff’s progressive degenerative disc disease. 23-2-5324 Joan C. Logwin, et al. v. Abraham A. Giacometti, et al., App. Div. (2 pp.) Although plaintiff’s scar may be genuinely disturbing to her, since it did not objectively appear to be a significant disfigurement to the trial judge (or to the appellate panel), dismissal of her case was proper for failure to meet the verbal threshold. LABOR AND EMPLOYMENT 25-2-5325 Jay D. Tice v. Bd. of Review, App. Div. (3 pp.) Ample support exists within the record for the board’s determination that manager at a solid waste transfer station voluntarily left his position to accompany his wife when she went Florida to care for her father, not as a result of chemical fumes aggravating his asthmatic condition, as the manager contended, so the determination that he was ineligible for unemployment benefits is affirmed. 25-2-5326 Bridget Anne Coyle v. Bd. of Review and Rider College, App. Div. (6 pp.) When a chemical spill occurred at work causing a severe throat injury to data-entry clerk, and employer, aware of her condition and that it was difficult for her to talk, showed total insensitivity by reassigning her to a job as a receptionist on her return from disability, it was arbitrary and capricious for the Board of Review to find that employee left the job without good cause attributable to her work, and her disqualification for unemployment benefits is reversed. WILLS, TRUSTS AND ESTATES — INTESTACY — SETTLEMENTS 38-2-5327 Amalfi Beras, Admnx., et al. v. Judy Byrne, et al., App. Div. (6 pp.) Trial judge’s allocation of wrongful death settlement proceeds, giving 90 percent to the intestate decedent’s children and 10 percent to his widow, was unfair and inequitable in that the judge failed to give due consideration to the widow’s financial dependency on decedent, and the allocation is modified to give one-third to the widow and two-thirds to the children. OPINIONS APPROVED FOR PUBLICATION: 23-0641 Regina Davis v. Christopher Brooks (April 1, 1993); 23-2-4438 Tshomba Harrison v. Ford Motor Credit Co., et al. (Dec. 1, 1994); 06-2-5299 Valley Hosp. v. Gerald F. Juliano, et al; Nationwide Adj. Corp., et al. v. Midlantic Nat’l Bank, et al. (March 31, 1995); 20-2-5302 Roseanne DeVane v. Donald DeVane (March 31, 1995); 23-2-5304 Concetta Marotta v. N.J.A.F.I.U.A., et al. (March 31, 1995). [All available online in N.J. Full-Text Decisions.] -

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