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Vol. 3 No. 125 – JULY 6, 1995 STATE COURT CASES INSURANCE 23-2-6061 Ron Letizia t/a Vitales Deli v. Utica National Ins.Group, et al., App. Div. (9 pp.) In a case where delicatessen owner attempted to recover losses sustained as a result of twoburglaries, and insurer refused coverage, alleging that policy had been canceled for nonpayment of a premium as a result of a bounced check on an installment payment, the trial court properly held that the insurer owed coverage due to the fact that a second cancellation notice was ambiguous, and ambiguity must be resolved in favor of the insured, although the damages award is vacated and remanded for recalculation. INSURANCE — VERBAL THRESHOLD 23-2-6062 Jamar Hearns, et al. v. Sheila Morris, et al., App. Div. (3 pp.) Complaint based on 8-year-old boy’s slightly discolored scar near his eye, measuring 3 cm. x 3 cm., was properly dismissed for failure to meet standard for a Type 3 injury under the verbal threshold law, since the scar did not constitute a significant disfigurement. 23-2-6063 Annette Webb-Foster, et al. v. Keith A. Bradford, et al., App. Div. (6 pp.) Where plaintiff’s treatment had ended three-and-a-half years before the defense’s summary judgment motion, and the most recent medical report, from a chiropractor, was based on subjective symptomatology, the judge correctly concluded that there was not sufficient objective credible medical evidence to support plaintiff’s claim and her case was properly dismissed. 23-2-6064 Nicole F. Sangiorgio v. Douglas J. Venella, et al., App. Div. (4 pp.) Defendants’ motion for summary judgment was granted correctly since (1) with respect to objective medical proofs, although plaintiff’s doctor’s report noted spasm, it said only that plaintiff complained of spasm, not that it was detected medically, and all other objective tests were normal, and (2) with respect to the impact the injuries from the accident had on her life, plaintiff failed to show any significant impact, since she only lost two days of work, and now works more hours than she did previously, along with a full course load at school. LABOR AND EMPLOYMENT 25-2-6065 Joanne Crupi v. Bd. of Review, et al., App. Div. (5 pp.) Although legal secretary suffered from chronic fatigue due to Epstein-Barr disease, which made performance of her job difficult, it was not the job which caused the illness, and she was properly denied unemployment compensation benefits, since she had left her job without good cause attributable to her work. 25-2-6066 Arjan Hingorani, et al. v. Schering Corp., App. Div. (28 pp.) In an employment discrimination case alleging wrongful discharge because of physical handicap and race, the trial court erred in invoking judicial estoppel to bar plaintiff from asserting that he was capable of performing his employment responsibilities when he was involuntarily placed on medical disability due to an eye injury, since, although plaintiff may have stated that he was disabled on his application for Social Security benefits, the Social Security Administration totally rejected that assertion, and the fact that plaintiff ultimately developed additional medical and psychiatric problems which, combined with his eye injury, later rendered him eligible to receive benefits, should not have triggered the judicial estoppel preclusion. LAND USE 26-2-6067 Chelsea Neighborhood Ass’n v. Zoning Bd. of Adjustment of Atlantic City, et al., App. Div. (11 pp.) In invalidating zoning board’s issuance of certificates of nonconformance to defendant for three rooming houses, the trial court erred in reasoning that “prior lawful use in the Municipal Land Use Law meant not only lawful use but also that the owner had secured all the requisite municipal certificates of zoning compliance and occupancy, and the relevant inquiry only should be whether the use or activity was lawful. 26-2-6068 Frank Cozzarelli Jr. v. Zoning Bd. of Adjustment of Belleville, et al., App. Div. (14 pp.) Trial court correctly dismissed neighboring landowner’s challenge to issuance of certificate of nonconformance to owner of boarding house, since premises were converted to a boarding house when that use was not prohibited, and have been used as a boarding house continuously since, and are therefore entitled to protection as a nonconforming use, since “prior lawful use means lawful in the context of prior zoning ordinances, not in the context of licensing requirements under other laws, as the neighbor suggests. NEGLIGENCE — BOATS 31-2-6069 Joseph Cerciello, Jr. v. Thomas Macconchie., et al., App. Div. (7 pp.) Trial judge improperly dismissed suit by boat passenger, who was injured when his seat collapsed due to rotting of its wooden supports, against boat owner, since principles governing duty of care owed by automobile owners should have been applied, not the principles governing landowners’ duty to warn of known risks. [Approved for publication July 5, 1995.] NEGLIGENCE — STATUTE OF LIMITATIONS 31-2-6070 Dawn Intelli v. Debra D. Krauszer, et al., App Div. (3 pp.) In a personal injury suit where plaintiff’s husband (the driver of the vehicle in which she was a passenger) was not originally joined, and where plaintiff did not believe that her husband was at all at fault in the accident, it did not excuse her from joining him as a party within the required limitations period, and the judge should have granted husband’s motion to dismiss the amended complaint against him as time-barred. NEGLIGENCE — GOOD SAMARITANS — IMMUNITY 31-3-6071 Elinor Mulligan, et al. v. Allamuchy Green Twp. First Aid Squad, et al., Law Div. (24 pp.) Widow’s suit against members of the volunteer first aid squad, for damages alleged to be the result of their efforts to resuscitate her husband against her wishes, are dismissed since the squad members are volunteers who do not have a preexisting duty to render aid and are therefore entitled to the benefit of immunity under the good samaritan statute. REAL PROPERTY — ADVERSE POSSESSION 34-2-6072 Flossie Fry, et al. v. Edward V. Avery, App. Div. (2 pp.) Trial court correctly denied plaintiffs’ suit seeking title by adverse possession to defendant’s strip of land encroached upon by plaintiffs’ fence, since (1) there was a family relationship between plaintiffs’ and defendant’s respective predecessors in title when the fence was erected and (2) plaintiffs’ possession on the disputed strip did not become hostile until the first non-family conveyance in 1978 and therefore did not meet the requirement of 30 years of hostile use. REAL PROPERTY — ENTIRE CONTROVERSY 34-2-6073 Alfred R. Pierce v. Logan Land Corp., et al., App. Div. (8 pp.) Where optionees, who paid to a trustee $300,000 for an option on a parcel of land, filed suit against the trustee in his individual capacity for misrepresentations he made concerning optionees’ ability to develop the property into a mobile home park, and where judgment was entered against the trustee and he thwarted all efforts to collect it, the trial judge was correct in dismissing trustee’s action–alleging that he had been improperly sued as an individual rather than as a trustee–against the optionees almost two years after judgment was entered, based upon the entire controversy doctrine. CRIMINAL LAW AND PROCEDURE 14-2-6074 State v. John M. Garthe, App. Div. (6 pp.) Defendant’s DWI conviction is reversed since, although Breathalyzer’s certificates of inspection were properly admitted into evidence as a hearsay exception, the inspector’s conclusions that, in his opinion, the machine tested within “acceptable tolerances” and that the working systems of the machine functioned “OK” were not supported by objective standards upon which the court could judge whether the test results were proper. 14-2-6075 State v. Daniel N. Bias, App. Div. (19 pp.) Although trial judge’s preclusion of firearms expert’s testimony–that certain experiment results had caused him to change his mind about his findings regarding the distance from gun muzzle to target–was not error, the preclusion, coupled with remarks made by the prosecutor in his closing that the witness had not changed his mind on the distance determination, was prejudicial error and requires reversal. 14-2-6076 State v. Josh Pompey, App. Div. (10 pp.) Reversal is required of an order denying defendant access to the personnel records of an investigator employed by the prosecutor’s office narcotics task force, where the investigator had interdepartmental disciplinary problems which may have caused bias, and the trial judge on remand is directed to review the personnel file in camera to make a determination as to its relevance to show bias. FEDERAL COURT CASE BANKRUPTCY 42-6-6077 In re: Victory Corrugated Container Corp. of N.J., Debtor, U.S. Bankruptcy Ct. (12 pp.) Where auction was held to sell debtor’s obsolete property, and where secured creditor did not choose to exclude its collateral and granted auctioneer permission to sell the property, and since the proofs show that persons familiar with the auction business reasonably could presume that the auctioneer possessed the authority to conduct a post-auction private equipment sale at the auction site, and the purchaser relied on this authority, creditor cannot now rescind the agency, and its motion to overturn the sale–alleging that the auctioneer had no right to sell the equipment since it was not bid upon at the actual auction–is denied, and the purchaser’s motion to validate the sale is granted. EDITOR’S NOTE: Due to technical difficulties, the Alert was not transmitted yesterday, Wednesday, July 5, 1995. The cases in this Alert are cases from that date. Tomorrow’s Alert will contain cases released today, July 6, 1995, and cases released tomorrow, July 7, 1995. The appropriate dates will be noted on each case. We apologize for any confusion.

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