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Vol. 3 No. 218 Decisions Released Nov. 16, 1995 STATE COURT CASES INSURANCE — P.I.P. — CANCELLATION NOTICES 23-2-7048 Rubin Acevedo v. Market Transition Facility of N.J., App. Div. (4 pp.) Summary judgment dismissing plaintiff’s complaint for P.I.P. and uninsured motorist coverage not provided because plaintiff’s policy was canceled is reversed, since insurer failed to give plaintiff the required 15 days’ notice, and defendant’s submissions on the mailing of the notice it provided are deficient. INSURANCE — VERBAL THRESHOLD 23-2-7049 Acela Pagan v. Virgil Boyd, et al., App. Div. (6 pp.) The fact that plaintiff alleged that she was forced to quit her second job due to a tinnitus condition she allegedly sustained as a result of an accident was not sufficient proof of a substantial impact on her life where her physicians neither opined that she should limit her physical activities in any way, nor recommended to her that she discontinue her job. NEGLIGENCE — JURIES — EVIDENCE 31-2-7050 Gertie McKenzie, et al. v. James M. Letson, et al., App. Div. (10 pp.) In a case where plaintiff was injured when a truck struck her legally parked vehicle, the liability judgment and a pain-and-suffering award are both affirmed, but the matter is remanded for a new trial on economic damages, since there was error in allowing the jury to bring loss-of-income-and-services charts, prepared by plaintiff’s economic damages expert, into the jury room during deliberation. NEGLIGENCE — JURIES — MISCONDUCT 31-2-7051 Catherine Rhone v. Chemical Bank of N.J., N.A., App. Div. (3 pp.) The trial judge properly found that there was no misconduct where a juror admitted that he knew defense attorney but the attorney indicated that he did not know the juror, and the judge did not err when he refused to interview the juror and ruled that there had been no impropriety. PUBLIC ASSISTANCE — MEDICAID 45-2-7052 Atlantic Highlands Nursing Home Inc. v. Div. of Medical Assistance & Health Svcs., App. Div. (6 pp.) The decision of the director of the state Division of Medical Assistance and Health Services — limiting Medicaid benefits payable to resident of appellant’s nursing home — was reasonable, because the Social Security benefits that were withheld from the resident due to an overpayment are required to be counted as income for the purpose of Medicaid eligibility and post-eligibility income deductions, notwithstanding that these funds were not “available” to the resident. WORKERS’ COMPENSATION 39-2-7053 Toni Alt v. Intl. Flavors and Fragrances Inc., App. Div. (2 pp.) The judge of compensation correctly refused to permit respondent to deduct payments made to petitioner under respondent’s private disability plan from petitioner’s temporary disability benefits payable under Workers’ Compensation law. FEDERAL COURT CASES BANKING — LEASES — R.T.C. — D’OENCH, DUHME DOCTRINE 06-7-7054 Robert McGarry, et al. v. Resolution Trust Corp., etc., U.S. Dist. Ct. (19 pp.) While the court grants reargument of the RTC’s summary judgment motion — to consider the potential impact of the D’Oench, Duhme doctrine and its statutory counterparts on a lease between tenants and the RTC’s failed predecessor bank — summary judgment still must be denied because the doctrine was intended to apply only to traditional banking activity, not ordinary business transactions, and therefore is not applicable to tenants’ claim that the RTC, as receiver for failed landlord bank, is liable for the breach of an ordinary property lease. [For publication.] ENVIRONMENT — SPILL ACT — INSURERS 17-7-7055 Caldwell Trucking PRP Group v. Spaulding Composites Co. Inc., et al., U.S. Dist. Ct. (6 pp.) In a case where the court had previously dismissed plaintiff’s complaint against other defendant insurers because the Spill Act did not authorize a direct action against alleged polluter’s insurers, and because the purported assignment of polluter’s insurance rights to plaintiff was invalid, plaintiff’s motion for leave to file an amended complaint to add yet another insurer is denied as futile. EVIDENCE 19-7-7056 Frank A. Scalcione, et al. v. City of Jersey City, et al., U.S. Dist. Ct. (3 pp.) Since the magistrate judge — after having reviewed in camera hundreds of pages of the police personnel files of 16 officers — found that “there is not so much as one syllable of these materials which is relevant or which is reasonably calculated” to lead to relevant discovery, the plaintiff’s application to compel disclosure of these personnel files is denied. TORTS — DEFAMATION — MALICIOUS PROSECUTION 36-7-7057 Eugene H. Steele v. Maite Vazquez, U.S. Dist. Ct. (5 pp.) Since it is well settled that a malicious prosecution claim cannot be maintained until the action forming the basis of the claim has been concluded in a defendant’s favor, malicious prosecution cannot be maintained in a counterclaim to plaintiff’s defamation suit, and the malicious prosecution counts of defendant’s counterclaim are dismissed.

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