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Vol. 4 No. 50 Decisions Released March 14, 1996 STATE COURT CASES ALCOHOLIC BEVERAGES — DRAM SHOP — DAMAGES 47-2-8170 Naldy Petitto v. Sands Hotel & Casino Inc., et al., App. Div. (10 pp.) (1) The general money damage award to plaintiff is reversed as being grossly insufficient and a miscarriage of justice, and (2) the trial judge erred in his jury instructions on the seat-belt defense under the circumstances of the case. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.] CIVIL PROCEDURE — SETTLEMENTS — COMPETENCE 07-2-8171 Arlette Wolkoff v. Carl Villane, et al., App. Div. (14 pp.) The judge should not have denied plaintiff’s motion to vacate settlement of her personal injury case without a plenary hearing, since plaintiff’s right to vacate her settlement depends upon her proving — by competent evidence, including medical and psychiatric expert testimony — that she lacked the ability to understand the nature and effect of the act of settlement; therefore the matter is remanded for such a hearing. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.] CONTRACTS 11-2-8172 John DiPasquale v. Jeff Roscoe, App. Div. (4 pp.) Since there were unresolved fact questions regarding the parties’ relationship, the judge erred in finding that because corporate checks were issued to plaintiff for payment of certain jobs it was conclusive that the sole obligor was the corporation, and that the defendant had no individual liability, and summary judgment in favor of defendant is reversed. CONTRACTS — CAR REPAIR 11-2-8173 Nick Delson v. Leon Touloughian, et al., App. Div. (4 pp.) Summary judgment was properly granted to defendant on plaintiff’s case alleging defendant’s failure to make proper car repairs, since plaintiff was aware, under the agreement between the parties, that when he removed his car from defendant’s lot, his actions fully released the defendant, and, moreover, defendant’s actions were reasonable under the circumstances. CONTRACTS — INDEMNIFICATION — SUBCONTRACTORS 11-2-8174 Michael A. Walker v. Torsiello Construction Corp., et al., App. Div. (9 pp.) Where subcontractor’s employee was injured on job site, and sued general contractor for failure to maintain a safe worksite, summary judgment was appropriate dismissing general contractor’s third-party claim for indemnification against subcontractor, since the indemnification clause in the parties’ agreement was not to be construed to indemnify the contractor against losses resulting from its own negligence in the absence of an expression of such an intent in clear and unequivocal terms. CONTRACTS — SETTLEMENTS — DAMAGES 11-2-8175 Steven Hannigan v. Twp. of Old Bridge, etc., et al., App. Div. (11 pp.) Where plaintiff filed a suit for money damages alleging that defendants breached a settlement agreement under which he was to be appointed to the police department, the judge improperly dismissed the suit, holding that plaintiff’s sole remedy was to seek enforcement of the settlement agreement, since specific performance is no longer plausible because of plaintiff’s age and other public policy considerations, and, in addition, a promisee with a right to specific performance is not barred from seeking damages for breach of contract as an alternative remedy. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.] EDUCATION — DEVELOPMENTALLY DISABLED PERSONS 16-2-8176 N.J.W. v. N.J. Dep’t of Human Svcs., etc., App. Div. (12 pp.) Director’s decision to change educational placement of developmentally disabled student — alleging that the student’s current facility was “unavailable” due to fiscal considerations — is inconsistent with the legislative intent behind the Developmentally Disabled Rights Act and is reversed. 16-2-8177 A.T. v. State of N.J., Dep’t of Human Svcs., etc., App. Div. (11 pp.) It was a manifest mistake for the state to permit budgetary problems to control its determination of the appropriateness of a placement of the developmentally disabled plaintiff, and the director’s decision to transfer plaintiff is reversed. 16-2-8178 M.M., etc. v. N.J. Div. of Developmental Disabilities, App. Div. (15 pp.) Since director originally had determined that plaintiff’s best placement was within the community, and had identified no community program other than the program in which plaintiff was functioning well, it was error for the director to later take the position that plaintiff’s placement should be changed because adequate funds were not available to keep him in his current placement. INSURANCE — AGENTS 23-2-8179 Carl Ellen Agency v. Gen. Accident Ins. Co., et al., App. Div. (6 pp.) In a case where insurer sought to terminate agency’s contract under the Producer Assignment Program due to various violations by, and wrongful acts of, the agency, the commissioner did not err in denying agency’s request for a plenary hearing, since the issues could be adequately addressed on the papers submitted, and the misconduct proved on those submissions was sufficient to justify the agency’s termination. INSURANCE — VERBAL THRESHOLD 23-2-8180 Leonard Wallace v. Thomas Walsh, et al., App. Div. (4 pp.) Where the only objective evidence of injury was the existence of spasm, and where plaintiff’s sole allegation of a “serious impact” on his life was the loss of his sales position, never medically linked with the accident, plaintiff did not meet the verbal threshold requirements and his case was properly dismissed. 23-2-8181 Carole Bailey v. Curvey Landry, et al., App. Div. (11 pp.) Plaintiff’s case was properly dismissed because his doctors did not address plaintiff’s history of TMJ distress or comparatively indicate which of plaintiff’s two automobile accidents caused his injuries. NEGLIGENCE 31-2-8182 Jacqueline Newbon, et al. v. Thomas Elliot, et al., App. Div. (10 pp.) Jury verdict that defendants were not negligent in placing a roll of wire fencing outside of their home for sanitation collection is affirmed, since (1) the judge’s foreseeability instruction closely tracked the model charge, and the supplemental instruction only added to, and did not replace, the model charge, (2) the trial court properly ruled that the town’s garbage ordinances were inadmissible as irrelevant, since the rolled wire was not “garbage” within the meaning of the ordinance, and (3) the defendant’s statement that “plaintiff could sue [him] because that’s what he had insurance for” was properly excluded as it was evidential only of defendant’s attitude, not of any disputed facts. NEGLIGENCE — HORSES 31-2-8183 Gabrielle Rowack, et al. v. Voight Farms, et al., App. Div. (11 pp.) In a case where plaintiff was injured on defendants’ property while taking horseback riding lessons, (1) although the grant of summary judgment to defendants was procedurally improper, the trial court was within its discretion to treat the motion to dismiss as a motion for summary judgment or an involuntary dismissal where it was clear that plaintiffs had no expert in the case, and (2) since plaintiffs could not support their claim without an expert, dismissal was proper. NEGLIGENCE — PRODUCT LIABILITY 31-2-8184 Theresa Wigand, et al. v. Trump Taj Mahal Casino Resort, et al., App. Div. (4 pp.) Where plaintiff fell on a casino escalator, and sued both the casino for negligence and the elevator (sic) company under strict liability and breach of warranty, case was properly dismissed since plaintiffs proffered no expert reports regarding the accident or the escalator, and res ipsa loquitur does not apply under the circumstances. PHYSICIAN/PATIENT — LEARNED-TREATISE RULE 29-2-8185 Charles DaGraca Jr., et al. v. Earl Laing, M.D., et al., App. Div. (12 pp.) In a case where plaintiff alleged that his doctor deviated from acceptable medical standards when he abruptly ceased plaintiff’s medication and then failed to recognize the withdrawal symptoms, the trial court (1) improperly precluded plaintiff from using portions of a learned treatise on drug dependence, toxicity and abuse to cross-examine the doctor’s expert witness, and (2) committed reversible error by virtue of its refusal to permit plaintiff to cross-examine the doctor on his failure to record plaintiff’s last seven prescriptions, and his decision to issue those prescriptions over the telephone without the benefit of an office visit. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.] PUBLIC EMPLOYEES — RATIFICATION OF APPOINTMENTS 33-2-8186 Charles Grimes v. City of East Orange, App. Div. (7 pp.) Although the court agrees with the Board of Merit’s decision that the city commissioners’ invalid appointment of the police chief could by ratified by the mayor, the record does not reveal whether the ratification was made with the same formalities required for the original exercise of power, and remand is required to allow the parties to offer relevant proofs on that issue. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.] REAL ESTATE — CONVERSIONS 34-2-8187 Park Court Dev. Co. v. Kyung Dong Indus. Co., Ltd., et al., App. Div. (8 pp.) Summary judgment dismissing plaintiff’s complaint for rent payment, for specific performance and for damages in excess of $500,000 reflecting the improvement costs to the leasehold is affirmed, since defendants, proposed contract purchasers of the property, had given plaintiffs extensions under the contract, but plaintiff still failed to effect the condominium conversion, and any delays under the contract were solely as an accommodation to the plaintiff. CRIMINAL LAW AND PROCEDURE 14-2-8188 State v. John Lewis, App. Div. (5 pp.) Police officer’s random computer check of defendant’s license plate number was not a violation of the defendant’s constitutional rights, inasmuch as license plates are exposed to public view, and the subsequent computer check did not intrude on a legitimate privacy interest of the defendant. [Approved for publication March 14, 1996. Available online in N.J. Full-text Decisions.]

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