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Vol. 4 No. 95 – MAY 17, 1996 STATE COURT CASES AGENCY/PARTNERSHIP 02-2-8939 Richard S. Goldberg v. Brian K. Friedman, et al. v. Leo A. Crispi, Sr., et al., App. Div. (12 pp.) Although defendant had committed a number of technical violations and breaches of partnership agreement, an audit did not reveal that he engaged in either inaccurate or inappropriate conduct, and the judge did not err in restoring him as general partner and dismissing plaintiff’s complaint for breach of fiduciary duty, however, although the transactions at issue did not constitute fraud, defendant should have disclosed them to his partners; therefore the defendant is not entitled to indemnification for his litigation costs from his partners, even though he prevailed in this suit. CIVIL PROCEDURE 07-2-8940 Bell Atlantic v. Francis M. O’Grady, etc., App. Div. (6 pp.) Judge erred in refusing to grant plaintiff’s motion to suppress defendant’s answer for failure to answer interrogatories on the ground that plaintiff had failed to comply with R. 1:6-2, since this rule is inapplicable to motions in the Special Civil Part. INSURANCE 23-2-8941 Edgar Nartey v. N.J.A.F.I.U.A., App. Div. (9 pp.) (1) After judge found that plaintiff should not be denied coverage for accidental injuries because of tortfeasor’s insurance-application misstatement and subsequent voiding of the policy, the judge erred in holding defendant responsible for the full amount of the policy’s $300,000 coverage, since retroactive voiding of a policy issued by the defendant renders it responsible only for the mandatory statutory minimum coverage. (2) The question of whether the defendant had the right to void the policy was not adjudicated, and requires a plenary hearing on remand. 23-2-8942 Debra Ann Hilton v. Mkt. Transition Facility of N.J., et al., App. Div. (5 pp.) Judge did not err in granting a directed verdict on liability against insurer, since the insurer’s proffered evidence — that the subject policy had been back dated — was speculative, and reasonable inferences could not be drawn from such evidence. INSURANCE — VERBAL THRESHOLD 23-2-8943 Deborah L. Dreher v. Philip J. Bertola, et al., App. Div. (6 pp.) Although the elicitation of pain on manipulation of plaintiff’s knee joint and patella are subjective reactions, there is nothing in the record to indicate that the diagnosed “chondromalacia” of the patella would manifest itself through other, more objective symptoms; therefore, the diagnosis of the condition constituted sufficient objective evidence of injury to have survived defendant’s motion for summary judgment. LABOR/EMPLOYMENT — JURORS 25-2-8944 Charles Guenther v. Deull Serv. Co., App. Div. (10 pp.) Although a juror was permitted to leave the jury room unaccompanied during deliberations to smoke a cigarette for three to five minutes, such conduct did not have the capacity to influence the jury’s verdict in any realistic sense, and verdict of non-discrimination in favor of employer is affirmed. LABOR/EMPLOYMENT — RELIGIOUS FREEDOM — DISCRIMINATION 25-2-8945 Eileen Gallo v. Salesian Soc’y Inc., etc., et al., App. Div. (57 pp.) (1) The state’s interest in abolishing age and gender discrimination is compelling, and enforcement of that interest — in a discrimination suit filed by a parochial high school lay teacher of English and history — does not constitute a substantial burden on defendant’s free exercise of religion. (2) The intrusiveness of carefully measured discovery is no reason to exempt defendants from L.A.D. scrutiny where the school’s spiritual functions are not in issue; therefore defendants are not entitled to a blanket exemption because of their status as a religious institution, and their challenge to the L.A.D.’s application to the plaintiff’s termination under the constitution’s Establishment Clause is rejected. [Approved for publication May 17, 1996.] LAND USE — SIGNS 26-2-8946 Venus Lounge Inc., etc. v. Twp. of Cherry Hill, App. Div. (9 pp.) The court correctly found in favor of municipality in its determination that the mural on the side of plaintiff’s nightclub was a “sign” within the definition of the municipal zoning ordinance, and in its finding that the pertinent sections of the zoning ordinance regarding signs are not unconstitutional. NEGLIGENCE — TORT CLAIMS ACT — LATE NOTICE 31-2-8947 Teresa A. Ohlweiler v. Twp. of Chatham, App. Div. (9 pp.) The trial judge did not abuse his discretion in relaxing the 90-day notice of claim requirement where plaintiff was diligent and timely throughout in seeking both medical care and legal advice respecting her injury, but where the changes in her physical condition — from minor to more serious — were unusual, unanticipated and unexpected, and where there was no prejudice to the defendant. [Approved for publication May 17, 1996.] PHYSICIAN/PATIENT 29-2-8948 Frances Haliotis v. Javad Khavarian, M.D., etc., et al., App. Div. (11 pp.) The motion judge properly exercised his discretion in denying doctor’s motion to vacate a default judgment, since doctor was either grossly negligent in failing to forward the summons and complaint to his insurer, or in failing to determine why insurer had not filed an answer on his behalf, and insurer, alternatively, was grossly negligent in not protecting doctor’s interests; the ultimate determination of the coverage issue between doctor and insurer, however, will occur in the declaratory judgment suit between them, and has nothing to do with the plaintiff. TORTS — CHARITABLE IMMUNITIES — VOLUNTEERS 36-2-8949 Lambert DeVries, et al. v. Habitat for Humanity, et al., App. Div. (18 pp.) Plaintiff, a volunteer worker who conferred a benefit on defendant, but received no benefit in return other than personal satisfaction, was not a “beneficiary” under the charitable immunity statute, N.J.S.A. 2A:53A-7 and is entitled to bring a tort action for injuries he sustained while working on one of defendant’s construction projects. [Approved for publication May 17, 1996.] A Daily Reporter of N.J. Court Decisions

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