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Vol. 3 No. 49 DECISIONS RELEASED MARCH 15, 1995 CIVIL PROCEDURE 07-2-5164 Santo A. Molino v. Joseph D. Diaco, et al., App. Div. (4 pp.) Since defendant has demonstrated neither a justifiable excuse for failure to file a timely answer, nor a meritorious defense, the denial of his motion to vacate default judgment was proper, however affirmance is without prejudice to his right to file a timely motion before the Law Division to determine the amount, if any which has already been realized by the plaintiff on account of the debt, so that there is no unjust enrichment. 07-2-5165 Garden State Bank v. Clare Cornick, et al., App. Div. (4 pp.) Where bank had prevailed on its application to be paid life insurance proceeds which were assigned to it as collateral for loan to deceased husband, despite claim of wife (who was named beneficiary of policy) that assignment was invalid because it was not communicated to the insurer, the fact that bank, pending wife’s appeal, then also prevailed in a lawsuit against the estate for the balance of the loan (based on UCC theory) mooted the wife’s appeal because the original judgment, having been satisfied by the second suit, could no longer be enforced and wife was no longer a “party aggrieved” by the judgment. CONTRACTS – STANDARD OF PROOF 11-2-5166 Eleanor A. Gorski v. John J. Gorski, et al., App. Div. (5 pp.) The trial judge applied the correct standard of proof when he found that the ex-wife did not prove by clear and convincing evidence that she and her ex-husband had an oral contract to make each other their life insurance beneficiaries, and her complaint seeking to impose a constructive trust on the proceeds was therefore properly dismissed. FAMILY LAW 20-2-5167 Martha L. Asinobi v. Donald C. Asinobi, App. Div. (4 pp.) The trial court’s denial of relief sought by wife for adjustments to the proceeds from sale of marital home by reason of the parties’ respective responsibilities for mortgage payments and good faith conduct is reversed because the judge failed to make findings of fact and conclusions of law regarding those issues. INSURANCE – AUTOMOBILES 23-2-5168 Amy Tice v. Jacob A. Vitale, et al., App. Div. (6 pp.) Summary judgment was erroneously granted to defendants since plaintiff’s doctor’s report contained objective evidence of injury by noting that an EMG study demonstrated certain dysfunction and x-rays revealed abnormalities, and these, together with plaintiff’s testimony that the injuries had a serious impact on her ability to teach and coach, were sufficient to vault over the verbal threshold. INSURANCE 23-2-5169 Vivian McDonald v. Allstate Ins. Co., App. Div. (11 pp.) Insured, by settling with the tortfeasor and dismissing the action against him without affording insurer sufficient time to consider its options under the guidelines promulgated in Longworth v. Van Houten, 223 N.J. Super. 174 App. Div. 1988), impaired insurer’s subrogation rights and dismissal of her claim for underinsured motorist benefits was proper. INSURANCE – LANDLORD/TENANT 23-2-5170 Milmar Paper Sales, Inc. v. River Terminal Development Urban Renewal Corp., et al., App. Div. (15 pp.) (1) Since, if tenant’s insurer had wanted to include claims of landlord (added insured) in exclusion for claims arising from damage to property in the care, custody and control of the tenant, it could have so provided, but did not, the exclusion did not apply to the landlord, and coverage must be supplied in suit for damage to tenant’s paper goods caused by leaking roof. (2) Since neither the tenant’s policy, nor the landlord’s policy was “primary” insurance, the two insurers must share equally in the loss. LABOR AND EMPLOYMENT 25-2-5171 Doreen Dimonte v. Bd. of Review, et al., App. Div. (5 pp.) The determination of the Board of Review that petitioner was liable to refund unemployment benefits is reversed because her corroborated fear of future employment layoff, bearing no correlation to work performance but to financial problems of employer, constituted good cause attributable to her work and she was, thus, entitled to receive benefits. NEGLIGENCE 31-2-5172 Karl Lind v. Ernest Kerr, et al., App. Div. (24 pp.) The decision of the trial judge to bar the testimony of defendant’s medical expert on the issue of causation of plaintiff’s injuries on the grounds that defendants failed to respond to plaintiff’s requests for admissions is not reversible, even though the requests were improper, since the expert was prepared only to dispute the severity of the injury and defendants presented other evidence concerning this issue, so there was no unjust result. 31-1-5173 Jean Gendek, et al. v. Estrella Poblete, et al., Supreme Ct. (29 pp.) To maintain an indirect claim for negligent infliction of emotional distress resulting from alleged medical malpractice, an immediate, close and clear involvement or connection must be present between the person suffering emotional distress and the conduct of the professional whose fault contributed to the serious or fatal injuries to the loved one, and summary judgment was appropriately granted to defendants because this degree of involvement and connection was absent in this case. [Available online in N.J. Full-Text Decisions.] PHYSICIAN/PATIENT – DENTISTS 29-2-5174 Lisa Appolonia v. Arthur DiNick, D.D.S., et. al., App. Div. (10 pp.) The jury had an ample evidentiary basis to conclude that the suggestion of the surgical procedure (to remove patient’s three other wisdom teeth, while she was suffering numbness from the removal of the first) was, in itself, an act of negligence and malpractice, and the fact that the doctor made full disclosure of the attendant risks of the procedure and obtained the patient’s informed consent does not negate that finding. REAL ESTATE – CONDOMINIUMS – SIGNAGE 34-2-5175 Bank of N.Y., N.A. v. Mayhill Office Ctr. Condo. Asso., et al., App. Div. (4 pp.) The order entered directing condominium association to replace two of bank’s signs (which it had removed due to bank’s alleged non-compliance with by-laws) was properly entered since the bank was a tenant in the property and the signs existed long before the office complex became a condominium, and the signs were never objected to until the bank merged and sought merely to change the name on the sign, not the size or shape. TORTS 36-1-5176 Turf Lawnmower Repair, Inc. v. Bergen Record Corp., et al., Supreme Ct. (56 pp.) In a defamation action, the negligence standard applies to businesses involved with an everyday product or service, however, to protect the public interest and the press, an actual-malice standard of proof will be imposed on an ordinary business when the media’s allegations of consumer fraud, if true, would constitute a violation of the Consumer Fraud Act. [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-5177 State of New Jersey v. Mahmoud Yassin, App. Div. (7 pp.) Reversal of defendant’s arson conviction is warranted where the trial judge erred in admitting evidence that defendant had previously collected insurance proceeds as a result of an earlier fire that damaged his store, since evidence of the earlier fire was inadmissible as “other crimes” evidence and the probative value was far outweighed by the substantial undue prejudice. 14-2-5178 State of New Jersey v. Treasurea J. Jacoby, App. Div. (9 pp.) Since the trial judge erred in failing to adequately instruct the jury and explain the “unlawful purpose” element of the charge of unlawful possession of a handgun with a purpose to use it unlawfully against another, reversal is necessary. -

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