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Vol. 3 No. 217 Decisions Released Nov. 15, 1995 STATE COURT CASES INSURANCE — REASONABLE AND NECESSARY MEDICAL EXPENSES 23-2-7032 Leonard Rosenberg, et al. v. Allstate Ins. Co., etc., et al. v. Unsatisfied Claim and Judgment Fund, App. Div. (19 pp.) Arbitrators’ holding that mortgage payments constituted reasonable and necessary medical expenses for quadriplegic is affirmed, since there is sufficient medical evidence that it is crucial for quadriplegic’s mental and physical health that he remain in his home environment. INSURANCE — VERBAL THRESHOLD 23-2-7033 Omeca Brandon v. Vasilios V. Xilas, et al., App. Div. (7 pp.) Motion judge correctly granted summary judgment to defendant, since (1) the only objective medical evidence was one notation of spasm, observed by doctor a few days after the accident, and (2) since plaintiff has not proved that the injuries she sustained had a significant impact on her life, where the only activity she is prevented from doing is sit-ups, although other activities may be difficult to perform. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7034 Richard Hilway v. Bd. of Review, App. Div. (7 pp.) Where staff pharmacist’s voluntary conduct in abusing controlled substances led to the suspension of his license, and where the license is a job prerequisite, his loss of the job is considered a voluntary quit without good cause attributable to the work, and he was properly denied unemployment compensation benefits. 25-2-7035 Joanne R. Ciavarella v. Bd. of Review, etc., et al., App. Div. (4 pp.) Since there was no evidence to support employee’s contention that her contract with transit authority had a fixed term which was coming to an end, and she testified that she left the job with the transit authority to work for another company because the salary was higher, it was closer to her home, the benefits were better, and her tax situation would improve, her leaving the employment was voluntary and unemployment compensation benefits were properly denied. 25-2-7036 Susan Toth v. Bd. of Review, App. Div. (4 pp.) Where employee failed to report to the unemployment insurance claims office — allegedly due to receiving erroneous information from her employer that she would not be eligible for benefits during her severance-pay period — employee was properly denied unemployment compensation benefits, since the information came from her employer, and there was no evidence that the erroneous information was supplied by the Division of Unemployment and Disability Insurance in order to apply the doctrine of estoppel. 25-2-7037 Ivan P. Rivera v. Bd. of Review, etc., et al., App. Div. (2 pp.) Where employee had a heated argument with his supervisor, and was told to “punch out and go home,” but where supervisor attempted that same day and later to contact employee about returning to work, and employee refused all contact, employee’s refusal to return to work was a voluntary quit, and he was properly denied unemployment compensation benefits. NEGLIGENCE — BUSES 31-2-7038 Shaderic Cottle v. Indep. Bus Garage Co., et al., App. Div. (6 pp.) Where intoxicated plaintiff was injured under unknown circumstances as he was getting off a bus, and where neither he nor a witness could properly identify the bus from which plaintiff exited, other than identifying it as the “31 Bus,” summary judgment was correctly granted to defendant bus companies, since there were more than 25 buses on that route, and no facts were presented to establish their negligence. NEGLIGENCE — ENTIRE CONTROVERSY DOCTRINE 31-2-7039 Moyfrid Mazzella v. Michael T. Carr, et al., App. Div. (8 pp.) Where plaintiff had lost a land contract dispute and later sued her adversaries’ expert witnesses, alleging that their testimony regarding her property was grossly negligent or fraudulent, summary judgment was properly granted to the expert witnesses, since plaintiff should have raised any claims she had at the time of the original land contract trial, and she is now barred from raising them by the entire controversy doctrine. PARTNERSHIPS — ENTIRE CONTROVERSY DOCTRINE 02-2-7040 Kenneth E. Joel v. Vincent Morrocco, et al., App. Div. (5 pp.) Where an adjoining landowner instituted an action against a development partnership and municipal planning board to overturn variances and site plan approvals, which was settled, but where partnership defaulted on settlement payments, trial court erred when it granted judgment to landowner to enforce the settlement against individual partners, since they were not joined in the initial action and action against them at this time is barred by the entire controversy doctrine. PRODUCT LIABILITY — MOTORCYCLES 32-2-7041 James Marchione v. Competition Accessories Inc., et al., App. Div. (12 pp.) Where plaintiff lost control of his motorcycle due to oscillation, and jury returned a verdict against manufacturer of the “handlebar mounted fairing,” verdict is affirmed, and trial judge did not err in failing to permit the jury to consider evidence on the motorcycle’s speed, since the appropriate expert stated more than once that he could not opine as to the probability — as opposed to possibility — that speed played a part in the accident. PRODUCT LIABILITY — WEIGHT LOSS PLANS 32-2-7042 Francisco Nunes v. Thompson Medical Co. Inc. v. Shop Rite, App. Div. (5 pp.) Where plaintiff filed suit against manufacturers of Ultra Slim Fast, alleging that use of the product aggravated his gall bladder and that warnings should have been provided, case was properly dismissed, since a medical expert’s opinion was a net opinion that failed to set forth the specific facts of plaintiff’s weight-loss experience and the direct causal connection of his medical condition with the use of the product. REAL ESTATE — FORECLOSURES — AFFORDABLE HOUSING 34-2-7043 N.J. Hous. and Mortgage Fin. Agency v. Bedminster Hills Hous.Corp., et al., App. Div. (22 pp.) Because of public interest issues surrounding an affordable housing program, the trial court erred when it determined that the power of attorney executed by mortgagors, who were the homeowners in the housing project, to nonprofit corporation designated by the court to administer the affordable housing plan, did not grant the corporation the power to redeem the property after sheriff’s sale. [Approved for publication Nov. 15, 1995.] WORKERS’ COMPENSATION 39-2-7044 Thomas P. Mullins v. Assn. for Retarded Citizens, App. Div. (7 pp.) There is substantial evidence to support a compensation judge’s findings that (1) petitioner’s psychiatric injury was due to conditions that were peculiar to his occupation and employment, and (2) that one insurer should pay all of petitioner’s temporary disability benefits, since the psychiatric injury manifested itself when petitioner first sought treatment, which was at a time when that insurer was “on the risk.” FEDERAL COURT CASES BANKRUPTCY — REMAND 42-7-7045 In re: Furniture Indus. Publishing Inc.; QPL Inc. v. Furniture Indus. Publishing Inc., U.S. Dist. Ct. (9 pp.) Bankruptcy court’s denial of creditor’s motion to remand adversary proceeding to the state court is reversed, and remand is ordered, since the underlying action does not invoke a substantive Title 11 right and is not a core proceeding — one that could arise only in the context of a bankruptcy case — and the fact that the dispute’s outcome may affect the debtor’s chances of a successful reorganization does not change this conclusion. INTELLECTUAL PROPERTY — PATENTS — INVENTORSHIP 53-7-7046 Sim Kar Lighting Fixture Co. v. Genlyte Inc., et al., U.S. Dist. Ct. (26 pp.) In a patent infringement suit for misappropriation of the socket bar design for a florescent lighting fixture, on co-defendant’s counterclaim alleging sole inventorship or co-inventorship of the patent, (1) although co-defendant’s sworn statement would be insufficient to survive employer’s summary judgment motion, since employer made a statement in the pretrial order naming co-defendant as an inventor of the patent, this statement provides sufficient corroboration of co-defendant’s statement to allow the issue to proceed to trial, despite the fact that employer now retracts the statement, and (2) since there is a strong presumption against implied contracts by employers to have employees assign patent rights, and because the precise nature of co-defendant’s employment is unclear, a material issue of fact exists concerning ownership rights to the patent, and employer’s summary judgment motion is denied. [For publication.] PARTNERSHIPS — TRANSFER 02-7-7047 Anthony R. Conti v. Elias M. Nemnom, U.S. Dist. Ct. (8 pp.) Both the convenience of the parties and witnesses, and the interests of justice, favor transferring this partnership dispute to NewYork, since the partnership filed a certificate to do business in New York, had its principal place of business in New York, and was the subject of a New York bankruptcy proceeding and neither the fact that the partners initially had a few meetings at one partner’s New Jersey home, nor that they later opened a small New Jersey branch store for a short time period are sufficient to make New Jersey a more appropriate forum.

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