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Vol. 3 No. 204 Decisions Released Oct. 27, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-2-6859 Patricia Joyce, etc. v. Blumstein, Block, et al. v. John Whiting, et al., App. Div. (6 pp.) Where attorneys may have improperly solicited plaintiff’s personal injury case, but where she retained other counsel and ultimately settled the case, dismissal of plaintiff’s subsequent suit against the attorneys was proper, although there was a genuine factual issue concerning their intent surrounding the signing of the retainer agreement, since plaintiff suffered no damages as a result of the law firm’s actions. CONSTRUCTION — PUBLIC CONTRACTS — BIDS 43-2-6860 Tami-Githens, Inc. v. Monmouth Excavators Inc., et al., App. Div. (4 pp.) Township properly awarded contract to second lowest bidder over plaintiff, the lowest bidder, because plaintiff’s bid did not comply with the Local Public Contracts Law’s mandate that required it to identify all of the particular subcontractors with whom it would deal. DEBTOR/CREDITOR — DEEDS IN LIEU OF FORECLOSURE 15-2-6861 Mary Anne B. Wood v. Timothy R. Tomai, et al., App. Div. (6 pp.) Where defendants gave plaintiff a deed in lieu of foreclosure, they were entitled to a credit equal to the property’s fair market value and, since the value exceeded the total due plaintiff on the note, the suit on the note was properly dismissed. ENVIRONMENT — SETTLEMENTS 17-2-6862 Pasquale DiGravina v. Louis Primak, et al.; Susan Primak, et al. v. Allen Klein, et al., App. Div. (11 pp.) Trial judge’s declaration that purported settlement agreement — between current and former owners of contaminated property — was unenforceable is reversed, since the judge failed to set forth findings of fact and conclusions of law. FAMILY LAW 20-2-6863 Gloria Pereira v. Roberto Pereira, App. Div. (5 pp.) Order terminating father’s support obligation because of emancipation of children, and rejecting mother’s application for son’s tuition, is affirmed, and termination of support was properly made retroactive to date of motion. INSURANCE — VICARIOUS LIABILITY 23-2-6864 Property Casualty Co. of MCA v. Kevin G. Conway, etc., et al., App. Div. (9 pp.) Where a minor intentionally damaged school property, and father was sued for the damage under the vicarious liability statute, coverage must be provided under father’s homeowner’s policy despite the fact that the act was intentional, because from the perspective of the father, the insured party, the occurrence was accidental. [Approved for publication Oct. 27, 1995.] INSURANCE — VERBAL THRESHOLD 23-2-6865 Lenore Walden v. Michael A, Rodgers, et al., App. Div. (3 pp.) Where plaintiff suffered soft tissue injuries and also was diagnosed with post-traumatic stress disorder and paranoia, since the diagnoses were based on plaintiff’s subjective complaints, they did not constitute objective indicia of impairment, and her complaint was properly dismissed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6866 Joseph Garaventi v. Bd. of Review, et al., App. Div. (5 pp.) Board’s decision that bus driver had deliberately violated his company’s policies, and was therefore properly terminated at the end of his probationary period, disqualifying him for unemployment benefits, is affirmed since it was supported by the evidence and not arbitrary or capricious. LAND USE 26-2-6867 South Brunswick Assocs. v. Twp. Council of Monroe Twp., App. Div. (8 pp.) Court’s decision to reinstate a use variance — granted to plaintiff by the municipal zoning board but denied by the municipal council — is reversed, and the variance denied, since the requested variance for light industrial use substantially altered the residential zone plan. NEGLIGENCE — ADDITUR 31-2-6868 America T. Canarte v. Walter P. Evan, et al., App. Div. (7 pp.) Where jury determined that plaintiff had suffered no injury as a proximate result of an auto accident, and judge gave defendants the choice of either accepting additur or a new trial, and defendants chose the additur, judge did not act improperly and plaintiff was not entitled to a new trial. PARENT/CHILD — ADOPTION BY SAME-SEX PARTNER OF PARENT 28-2-6869 In the Matter of the Adoption of Two Children by H.N.R., App. Div. (19 pp. – includes 5 page dissent) The trial judge erred in denying adoption by same-sex partner of birth mother on the ground that such adoptions are not permitted under the N.J. adoption statute, and his reading of the statute was overly restrictive. [Approved for publication Oct. 27, 1995. Available Online in NJ Full-Text Decisions.] 28-2-6870 In the Matter of the Guardianship of L.Y.L., et al., App. Div. (9 pp.) The record amply supports the judge’s conclusion that, because of her psychological deficiencies, birth mother lacked the ability to provide basic parenting for her children or to demonstrate any capacity for acquiring the skills necessary to do so, and parental rights were properly terminated. PHYSICIAN/PATIENT 29-2-6871 Basil Doloughan v. Shankar Raman, M.D., App. Div. (4 pp.) Where doctor recorded on the patient’s chart that a second biopsy was pending, this was sufficient communication to the treating physicians, and did not constitute a deviation from accepted medical standards; therefore, malpractice case was properly dismissed. REAL ESTATE — BROKERS 34-2-6872 Urban Country Real Estate v. PHH Home Equity Corp., et al., App. Div. (3 pp.) Where buyers could not close by seller’s time-of-the-essence date, the seller’s refusal to accept buyers’ proposed alternative closing date was not an arbitrary or bad-faith action, seller had the right to deem the contract void, and broker is not entitled to a commission. WORKERS’ COMPENSATION 39-2-6873 Catherine M. Grady v. Ocean Desert Sales Co., etc., et al., App. Div. (9 pp.) Where petitioner was involved in two work-related automobile accidents within a short period of time, and employer was insured by a different carrier for each of the accidents, insurer on second accident claim did not have standing to challenge the validity of the settlement agreement between the petitioner and the insurer on the first accident claim. CRIMINAL LAW AND PROCEDURE 14-2-6874 State, in the Interest of S.M., a juvenile, App. Div. (12 pp.) The trial court was correct in concluding that the act of fellatio does not require proof of insertion or attempted insertion of the victim’s penis into the mouth of the perpetrator, and defendant’s conviction — for placing his mouth on the victim’s penis — is affirmed. [Approved for publication Oct. 27, 1995. Available Online in NJ Full-Text Decisions.]

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