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Vol. 3 No. 50 DECISIONS RELEASED MARCH 16, 1995 AGENCY AND PARTNERSHIP 02-2-5179 Joel Catalano v. Larry M. Lupone, et al., App. Div. (12 pp.) Trial judge’s entry of judgment for compensatory and punitive damages against general partner in favor of limited partners was correct since general partner committed significant breaches of his fiduciary duty from which he derived personal profit; the matter is remanded, however, for modification of the judgment for certain credits due to the general partner for management fees and for recomputation of the punitive damages. ATTORNEY/CLIENT 04-2-5180 Barrie B. Ellison, et al. v. Schenck, Price, Smith & King, App. Div. (15 pp.) Although there was a substantial question of material fact as to when actual damages occurred to the plaintiffs, and summary judgment dismissing their legal malpractice claim should not have been granted on the grounds that the statute of limitations had run, the judgment is affirmed, since the plaintiffs’ claims are barred by the entire controversy doctrine. [Approved for publication Mar. 16, 1995.] [Available online in N.J. Full-Text Decisions.] INSURANCE 23-2-5181 Kim A. Yannotta, Admx., et al. v. Bankers National Life Ins. Co., Inc., et al., App. Div. (13) The evidence presented at trial was adequate to support jury’s finding that insurance broker was negligent in processing decedent’s life insurance application, and judgment for damages was properly entered, but judgment against insurance company was not proper since broker was not an employee of insurer, but an independent contractor, whose acts are not attributable to principal. INSURANCE – VERBAL THRESHOLD 23-2-5182 Josephine Maroun v. Mark A. Lane, et al., App. Div. (4 pp.) Summary judgment was properly granted to defendants since the only positive objective evidence of plaintiff’s injury was one thermogram study conducted one month after the accident and never repeated, and plaintiff underwent no reexamination or treatment for two years prior to the motion. 23-2-5183 Melba Robinson v. Adele L. Vaglia, et al., App. Div. (5 pp.) Although the plaintiff’s thermogram test results were objective evidence of serious injury, plaintiff did not show a nexus between those test results and her injury, and offered no certification or affidavit to demonstrate a serious impact on her life; therefore, summary judgment was properly granted to defendants. 23-2-5184 Hana Hoffman, et al. v. Jane Littrell, App. Div. (6 pp.) The results of a Kin Com test, argued by plaintiff to constitute objective medical evidence of injury, were irrelevant not only because the doctor failed to causally relate the abnormal results of the test to the accident, as stated by the trial judge, but because the test relies on the volitional effort of the patient and is not truly objective, therefore plaintiff’s attempt to satisfy the verbal threshold failed. 23-2-5185 Laura Hanley v. Nina Remson, App. Div. (3 pp.) Dismissal of plaintiff’s verbal threshold case was proper where, after an accident, she went directly to a shopping mall, then sought medical treatment one month after the accident, and where, although spasm was noted on that first doctor’s visit, no abnormalities were noted after that and there was no serious impact on plaintiff s work or aerobic activities. LAND USE 26-2-5186 Michael J. Messinger, et al. v. Twp. Committee of Twp. of Wyckoff, App. Div. (11 pp.) Trial judge’s reversal of committee’s decision not to grant variance to homeowners was proper since, despite owners’ failure to prove a pre-existing valid nonconforming use, the undisputed facts give rise to an estoppel barring the township committee from denying the validity of that use, which existed for three decades, was improved on two occasions with building official’s permission and where township engineer had written a letter confirming the validity of the use. PUBLIC EMPLOYEES 33-2-5187 Pascal Gallerano v. Public Employees’ Retirement System, App. Div. (3 pp.) Total forfeiture of pension benefits was the appropriate remedy for employee’s breach of the public trust, indicated by his guilty plea to official criminal misconduct, even though it was just one incident in an entire career. 33-2-5188 Suzanna Buriani-De Santis v. Bd. of Trustees, Public Employees’ Retirement System, App. Div. (6 pp.) Petitioner’s settlement with her former employer, which effectively reinstated her with backpay and back pension contributions to PERS, did not change her status as of the date when the determination of her eligibility for reelection to the Board had to be decided, and the determination that she was ineligible to seek reelection was proper. CRIMINAL LAW AND PROCEDURE 14-2-5189 State of New Jersey v. Gibbon Farquharson, App. Div. (18 pp.) Reversal of defendant s conviction is warranted where defendant had made extensive efforts to procure co-defendant as a crucial material witness, with little cooperation from the prosecutor, and the trial judge erred in not considering the applicability of the Uniform Witness Act and requiring prosecutor to exercise sufficient diligence to ascertain her whereabouts so that defendant s constitutional rights would not have been so easily trammelled. [Approved for publication Mar. 16, 1995.] [Available online in N.J. Full-Text Decisions.] 14-2-5190 Stephen D. Mitnaul v. N.J. State Parole Bd., App. Div. (5 pp.) “Gap time credit” only reduces the maximum length of the indeterminate sentence and not the actual time or the 40-month presumptive initial parole eligibility date set forth in the statutes. [Approved for publication Mar. 16, 1995.][Available online in N.J. Full-Text Decisions.] -

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