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Vol. 3 No. 51 DECISIONS RELEASED MARCH 17, 1995 CIVIL PROCEDURE 07-2-5191 William J. Walsh v. Ford Motor Co., et al., App. Div. (6 pp.) Van buyer’s summary judgment motion was properly denied, and seller’s granted, since the motion was argued previously and decided on the issue of negligence, but a motion for reconsideration, argued by new counsel for the buyer, was argued on the theory of warranty, and motion for reconsideration is not a mechanism to argue a case on an entirely different theory. FAMILY LAW 20-2-5192 Karen S. Skoglund v. Douglas L. Skoglund, App. Div. (5 pp.) Where evidence shows that there has been a change in the parties situations so that the alimony to be paid by husband, even though reduced, will still not leave him enough to live on and pay child support, matter must be remanded for further consideration of parties’ finances and child support obligations. INSURANCE – VERBAL THRESHOLD 23-2-5193 Tina Tharpe, et al. v. Kathalin Hollos, et al., App. Div. (18 pp.) While plaintiff’s doctors parroted the statute and cited objective findings of spasm, neither doctor considered the findings clinically significant and causally related to the accident, so summary judgment was properly granted to defendants, but the dismissal of her claim for lost wages was erroneous and is reversed. 23-2-5194 Dorothy McCarty v. Geraldine Parker, App. Div. (4 pp.) Trial judge, noting that plaintiff’s objective tests showed no abnormalities and that most of the treating physicians’ reports of limitation were based on range-of-motion studies, correctly granted defendant s summary judgment motion. 23-2-5195 Mario Ponte, et al. v. Carola J. Dawson, App. Div. (3 pp.) Where plaintiff’s doctor did not offer an opinion on the permanency of plaintiff s injury due solely to the accident (since plaintiff suffered from a pre-existing condition), summary judgment was properly granted to defendants. 23-2-5196 Madalena Correia v. Andrew McLean, App. Div. (6 pp.) Plaintiff’s fractured teeth, along with a diagnosis of TMJ disorder, qualifies under categories 4, 7 and 8 of the verbal threshold statute, and summary judgment should not have been granted to the defendants. 23-2-5197 Isabel Rose Morgan v. George Wm. Morgan, et al., App. Div. (6 pp.) Dismissal of plaintiff’s verbal threshold case was improper where plaintiff was still suffering observable muscle spasms three years after an accident, three doctors opined that she sustained thoracic outlet syndrome, at least one doctor testified to causation and permanency, and plaintiff certified that she could no longer work at her chosen profession or pursue her hobbies. 23-2-5198 Ruben Torres, et al. v. Jose Sierra, et al., App. Div. (5 pp.) Plaintiff’s doctor’s report of muscle spasm long after an accident, together with MRI findings showing apparently post-traumatic osteoarthritic and cervical disc changes, meet the requirement of objective medical evidence and, although plaintiff’s description of the effect of his injuries on his life is rather laconic, it appears to raise a jury question; the dismissal of plaintiff s case is reversed. LANDLORD /TENANT 27-2-5199 Victor Acevedo v. Philip Oliveri, App. Div. (4 pp.) The trial judge could have properly found tenant credible and found that tenant substantially complied with the requirement that he give 30 days’ notice to his landlord, where landlord lived in same building, but left on vacation and frustrated timely notice; tenant, therefore, was entitled to dismissal of counterclaim for one month’s rent. 27-2-5200 Jack Edelson v. Hartz Mountain Indus., et al., App. Div. (5 pp.) The trial judge correctly ruled that both the parol evidence rule and the Statute of Frauds precluded introduction of testimony regarding an oral or implied condition to performance, which conditioned payments by the landlord to the tenant under a lease termination agreement upon tenant’s rent payments under the lease in a new facility, where neither the termination agreement nor the new lease contained such conditions. NEGLIGENCE – ARBITRATION – TRIAL DE NOVO 31-2-5201 Ernestina Huerfano v. Elliot Days, et al., App. Div. (4 pp.) Defense counsel’s failure to correctly diary the date by which a trial de novo must be filed does not constitute the “extraordinary circumstances” necessary to relax the 30-day filing rule, despite the fact that the motion was filed immediately after the error was realized, and the papers were only 12 days’ late. TORTS 36-2-5202 John Joseph Hunt, Jr. v. Twp. of Buena Vista, et al., App. Div. (3 pp.) The trial court correctly dismissed complaint holding that plaintiff had failed to present any evidence that park merry-go-round constituted a “dangerous condition” within the intent of the Tort Claims Act, and evidence showed child in question knew he should sit on wooden seat, not climb on metal bars, while ride was spinning. 36-2-5203 Lorri Wiley v. Village Supermarkets, Inc., et al., App. Div. (20 pp.) (1) Since jury returned irreconcilably inconsistent verdict, and the court did not explain the inconsistency to the jury and require it to resume deliberations, the trial court properly set aside the verdict and ordered a new trial on shopper’s assault and battery and malicious prosecution claims against supermarket and its security guard. (2) The trial court erred in granting summary judgment to supermarket’s attorney on plaintiff’s malicious prosecution claim, since plaintiff’s evidence would support a finding that the attorney actively participated in the decision to file a shoplifting suit against the shopper, knowing that there was a lack of probable cause. CRIMINAL LAW AND PROCEDURE 14-2-5204 State of New Jersey v. Loren Campbell, App. Div. (16 pp.) Although, among other discovery errors, the prosecution was delinquent in disclosing to the defense a Trenton police investigation, the start of the trial was delayed to deal with late discovery isues, and the court correctly concluded that there was no prejudice to defendant in any particular instance. -

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