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Vol. 3 No. 201 Decisions Released Oct. 24, 1995 STATE COURT CASES CONTRACTS 11-2-6810 Attila Tormasi v. George Gussis, et al., App. Div. (4 pp.) In contractor’s suit against homeowners for payment for work done, in which defendants counterclaimed for damages due to defects, denial of plaintiff’s motion to have the jury visit the work site was within trial court’s discretion, and no-cause verdict and $10,000 verdict on counterclaim are each affirmed. EDUCATION 16-2-6811 Bd. of Education of Middletown Twp. v. Twp. Committee of Middletown Twp., App. Div. (5 pp.) State Board of Education did not abuse its discretion in affirming Commissioner of Education’s decision to restore all reductions made to school budget and cap waiver and in denying governing body’s request to supplement the record with wholly new information. INSURANCE 23-1-6812 Robin Brill v. The Guardian Life Ins. Co. of America, et al., Supreme Ct. (36 pp.) Where competent evidentiary material presented left no doubt that insurance broker failed to advise the insured of the availability of conditional coverage, which failure was the proximate cause of the insured’s widow’s loss of $750,000 in life insurance benefits, summary judgment was properly granted. 23-2- 6813 N.J. Automobile Full Ins. Underwriting Assn., etc. v. Joseph Bloomer, App. Div. (4 pp.) Where a settlement with an excess carrier disposed of a contract claim, not a “civil action brought for personal injury” within the meaning of N.J.S.A. 2A:15-97, primary insurer was not relieved of liability. INSURANCE — COUNSEL FEES 23-2-6814 Suellen L. Knorr v. N.J. Automobile Full Ins. Underwriting Assn., App. Div. (5 pp.) Where plaintiff’s attorneys submitted a certification substantiating over $33,000 in counsel fees, to which the defendant did not object, the judge’s finding that only approximately $13,000 in fees should be awarded as “reasonable” is reversed for specific findings of fact and conclusions of law. INSURANCE — VERBAL THRESHOLD 23-2-6815 Jacob Cohn v. Norman F. Zimmerman, II, App. Div. (2 pp.) Where plaintiff’s chiropractor’s reports contained no objective credible evidence to substantiate conclusory language parroting the verbal threshold statute with respect to the diagnosis of cervical strain, and where plaintiff failed to set forth any serious impact on his life, summary judgment was properly granted to the defense. 23-2-6816 Mary Hahn v. Quang T. Nguyen, et al., App. Div. (4 pp.) Where plaintiff met the requirements of Oswin v. Shaw, but plaintiff’s attorney initially failed to assure that the subjective indicia of the injury would be addressed and, after summary judgment was granted to the defendants, filed a motion for reconsideration out of time, summary judgment is reversed. 23-2-6817 Isaiah Mayrant, et al. v. Rafael A. Rivera, et al., App. Div. (4 pp.) Summary judgment for defendants is reversed, since plaintiff is entitled to fair inferences that can be drawn from the evidence submitted, even if he downplayed his injuries and did not offer explicit proof that his injuries had a substantial impact on his life, and sufficient inferences can be made from the evidence presented that plaintiff quit his long-term job and could not find work because of the pain associated with accident-related injuries. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6818 Mansueta Delos Santos v. Bd. of Review, et al., App. Div. (5 pp.) Board of Review’s decision that petitioner’s claim for unemployment compensation was invalid, because she did not have the required work and wages after her benefit year began, is affirmed, and she is required to refund the amounts paid to her. 25-2-6819 Sharon A. Masterson v. Bd. of Review, App. Div. (4 pp.) Because waitress failed to report the amount of her gratuities to her employer, no unemployment compensation taxes were paid on those earnings, and the benefit level can only be based on the taxes actually paid. [Approved for publication Oct. 24, 1995. Available Online in NJ Full-Text Decisions.] NEGLIGENCE — PRODUCT LIABILITY 31-2-6820 Jeanne Wrightson v. Samuel Cabot, Inc., et al., App. Div. (9 pp.) Since formation of mildew within four months of the application of a sealant on a new roof could have resulted only from the negligent application of the sealant or an inherent defect in the product, rather than environmental conditions, the burden of proving the exact cause shifted to the defendants, and these unresolved issues of material fact should have defeated summary judgment. PHYSICIAN/PATIENT 29-2-6821 Carolyn A. Guglielmo v. John P. Kripsak, D.O., App. Div. (7 pp.) The motion judge construed the plaintiff’s expert’s report too narrowly in concluding that she failed to make out a prima facie case of professional malpractice and proximate causation, and the case is remanded. PUBLIC EMPLOYEES 33-2-6822 In the Matter of John J. Burla, Police Officer, City of Trenton, App. Div. (4 pp.) Decision of the Merit System Board, affirming the action of the Police Division of the City of Trenton dismissing police officer without back pay, is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-6823 State v. Sam Hollis, App. Div. (7 pp.) Although a finding of willful non-appearance is implicit in defendant’s explanation that he failed to appear for sentencing because he was “scared,” that explanation is not sufficiently “insulting, frivolous, or so clearly inadequate” to justify a summary contempt finding. 14-2-6824 State v. Kevin Vonderfecht, App. Div. (6 pp.) Trial court’s suppression of drug evidence — on the basis that the police did not have the authority to arrest the defendant for a petty disorderly offense — is reversed, since the disorderly persons statute does not focus upon the seriousness of the underlying offense, which is relevant only for sentencing purposes. [Approved for publication Oct. 24, 1995. Available online in NJ Full-Text Decisions] Additional state court opinion approved for publication: 17-2-6036 Astro Pak Corp. v. Fireman’s Fund Ins. Co., et al. [Decided June 30, 1995, Approved for publication Oct. 19, 1995.] FEDERAL COURT CASES ADMINISTRATIVE LAW — RACING — ABSTENTION 01-7-6825 Jordan Rubin v. Santo LaLomia, etc., et al., U.S. Dist. Ct. (7 pp.) The court will abstain from any consideration of plaintiff’s request to have the court order the New Jersey Racing Commission issue him a harness trainer license, pending further proceedings regarding investigations related to his prior suspension, since resolution of those state law issues should be made in the appropriate forum. BANKRUPTCY 42-7-6826 In the Matter of Robert J. Rosemiller, Debtor, U.S. Dist. Ct. (24 pp.) Since debtor’s challenges to the sufficiency of the documents submitted by the I.R.S. in support of its proof of claim are without merit, its motion for reconsideration of denial of its objections to the claim is denied and the case remains dismissed. LABOR AND EMPLOYMENT — ERISA — CONTRIBUTION 25-7-6827 Robert B. Reich, etc. v. Charles V. Giordano, et al., U.S. Dist. Ct. (30 pp.) In suit by Secretary of Labor against union trustees, alleging fraudulent or negligent handling of a loan as a breach of fiduciary duty, third-party complaint — demanding, inter alia, contribution under ERISA from the unions as co-fiduciaries — is dismissed since neither third-party defendant exercised sufficient discretionary control or authority to attain fiduciary status. PRODUCT LIABILITY 32-7-6828 Delta Tanning Corp. v. Classic Leather Sales Corp., et al., U.S. Dist. Ct. (27 pp.) In leather tanner’s product liability suit against pigment manufacturer, summary judgment for defendant is granted since, inter alia, (1) tanner’s direct claims for breach of implied and express warranty are not cognizable under applicable N.Y. law because the parties are not in privity of contract and (2) a purchaser cannot assert claims for negligence or strict liability against a remote manufacturer if the alleged losses derive from damage to the property that is the subject of the contract.

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