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Vol. 4 No. 51 – MARCH 15, 1996 STATE COURT CASES ATTORNEY/CLIENT — DEFAULT — EXCUSABLE NEGLECT 04-2-8189 Shirley Bramble, et al. v. Neil I. Sternstein, Esq., et al., App. Div. (5 pp.)1M Personal health and business problems of attorney, the possibility that the proffered defenses to malpractice suit may be meritorious, and the lack of harm to the plaintiff provided a sufficient basis to set aside default only two months after its entry, and judge’s decision to deny such relief is reversed. CONSUMER PROTECTION — REAL ESTATE BROKERS 09-2-8190 Roxanne Gennari v. Weichert Co. Realtors, etc., et al.,App. Div. (60 pp.) Where real estate broker made affirmative misrepresentations of material fact as to the qualifications of the builder/developer, upon which proposed purchasers relied, the Consumer Fraud Act does not require a showing of knowledge of falsity, or intent to deceive in order to hold the broker liable to the purchaser for consumer fraud. [Approved for publication March 15, 1996.] CONTRACTS — HOME INSPECTIONS — DAMAGES 11-2-8191 Cornelius J. Dwyer III, et al. v. Foresight Eng’g Inc., etc., et al., App. Div. (4 pp.) Where defendants issued a report to plaintiffs on the condition of plaintiff’s’ home that severely underestimated the extent of wood rot, plaintiffs were entitled to recover the reasonable costs of necessary repairs that resulted from defendants’ negligent performance, even though the repairs were performed by the plaintiffs themselves, and damage award is upheld. EVIDENCE — SEX ABUSE CASES — EDUCATION 19-2-8192 Dana Harris, et al. v. Ulyssee Green, et al., App. Div. (19 pp.) In a case where plaintiffs alleged sexual abuse by an ROTC counselor at their school, the trial judge mistakenly exercised his discretion by refusing to order guidance supervisor to disclose his knowledge of other sexual abuse that occurred in the school, since the privacy interest to be protected was not the supervisor’s, and the judge should have ordered him to answer the questions and drafted an order protecting the identities of the students and educational personnel involved. GIFTS 58-2-8193 Michele Jennings v. Alan Cutler, et al., App. Div. (16 pp.) Judge properly concluded that the mortgage given by defendant to his former lover was a valid and enforceable inter vivos gift, and ordered the mortgage proceeds from the sold underlying property paid to former lover. [Approved for publication March 15, 1996.] INSURANCE — UNDERINSURED MOTORIST PROTECTION 23-2-8194 Celestino Torna v. Mkt. Transition Facility of N.J., et al., App. Div. (3 pp.) Plaintiff’s case for UIM benefits was properly dismissed because plaintiff settled with the other driver without notifying the insurer, and thereby extinguished his rights to UIM coverage. INSURANCE — UNINSURED MOTORIST PROTECTION 23-2-8195 Dennis L. Lamb v. Debra L. Weiss, et al., App. Div. (4 pp.) Defendants’ contention that plaintiff’s trial award should be limited to the amount of the UM arbitration award is without merit; such awards are not issue preclusive because the procedures are more limited than those at trial, such as the inability to cross-examine experts, and the plaintiff’s award is affirmed. INSURANCE — VERBAL THRESHOLD 23-2-8196 Christine Matthews v. Steven Calabrese, App. Div. (9 pp.) Although psychological or psychiatric injury can be alleged under the verbal threshold statute, plaintiff’s psychological evidence fails to meet the objective medical evidence standard because it merely parrots her subjective complaints, fails to provide medical evidence of causal relationship to the accident, and does not distinguish the degree to which the accident aggravated plaintiff’s preexisting psychological condition. 23-2-8197 Shadawn Sumner v. Unsatisfied Claim and Judgment Fund, et al., App. Div. (8 pp.) Although the Legislature amended the verbal threshold law to provide that an injured party who had no automobile to insure and was not a part of a household of an immediate family member having such an automobile would be afforded the benefit of the no-threshold option, the law concerning the Unsatisfied Claim and Judgment Fund was not changed in that regard, and claimants against the fund must meet the verbal threshold. [Approved for publication March 15, 1996.] NEGLIGENCE — SIDEWALKS 31-2-8198 Myra Trinkler, et al. v. Michael D’Andrea, et al., App. Div. (3 pp.) The trial judge correctly held that defendants, as residential landowners, were not liable for their sidewalk’s condition, which was caused by tree roots, where there was no proof that the defendants took any affirmative action to cause the condition. NEGLIGENCE — SOCIAL/BUSINESS INVITEES 31-2-8199 Janet Mullin v. Janice Foy, App. Div. (3 pp.) Where defendant’s New Year’s Eve party had both a political/business purpose and a social purpose, a fact question existed as to whether plaintif — defendant’s mother-in-law and campaign worker — was a social or business invitee, and such a question was for the jury and should not have been resolved on summary judgment. NEGLIGENCE — TORT CLAIM ACT 31-2-8200 William Hearney, et al. v. Twp. of Pemberton, et al., App. Div. (5 pp.) Motion judge properly dismissed plaintiff’s complaint for failure to demonstrate that a dangerous condition existed on the defendant’s premises and that defendant had actual or constructive notice of the condition. REAL ESTATE — BROKERS MALPRACTICE INSURANCE 34-2-8201 ERA Saldon Realtors v. Birmingham Fire Ins. Co. of Pa., et al., App. Div. (6 pp.) Where realtor had been sued for malpractice for selling a radon-contaminated house, judge correctly dismissed realtor’s defense and indemnification suit against its malpractice carrier, since the clear malpractice-policy language excluded claims for bodily injury from pollution. TAXATION 35-2-8202 Twp. of Montclair, etc. v. Cy. of Essex, etc., et al., App. Div. (8 pp.) Judgment declaring that county’s estimated tax bills are without statutory authority and invalid is reversed; the direction that future bills issued after a statutory due date include a reasonable due date based upon the invoice date is affirmed. [Approved for publication March 15, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-8203 State v. Cynthia Cupe, App. Div. (14 pp.) Where defendant had exhausted all avenues of direct review and her conviction had become final prior to the Supreme Court’s decision in State v. Coyle, 119 N.J. 194 (1990) — which prohibits sequential jury charges in murder cases where there is evidence of passion/provocation — defendant may not obtain post-conviction relief on the ground that sequential jury instructions in violation of Coyle were given at trial. [Approved for publication March 15, 1996.] CRIMINAL LAW AND PROCEDURE — CRUELTY TO ANIMALS 14-2-8204 State v. Carlos Rodriguez, App. Div. (5 pp.) Even though trial court invalidated the seizure of defendant’s fighting roosters and other animals and dismissed indictment, the court wrongfully granted the return of the animals to defendant, since the SPCA still had municipal cases pending against defendant, and the independent source doctrine allows the SPCA to use the evidence discovered as a result of the unlawful search since it knew of the evidence from an independent and untainted source. CRIMINAL LAW AND PROCEDURE — DISORDERLY CONDUCT 14-2-8205 State v. William F. Eddy, App. Div. (5 pp.) Defendant’s threatening statements made to employer did not create a “hazardous or physically dangerous condition,” and, although his speech might have constituted some other criminal violation, his conviction under the disorderly conduct statute is reversed. CRIMINAL LAW AND PROCEDURE — JURORS 14-2-8206 State v. Bismallah Holloway, App. Div. (20 pp.) Judge did not mistakenly exercise his discretion by removing the only juror who indicated that she would vote “not guilty,” since she had been tainted by information received from a source outside the jury/court proceedings, nor did the judge err in substituting an alternate juror and instructing the jury to begin deliberations anew. [Approved for publication March 15, 1996.]

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