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Vol. 4 No. 46 – MARCH 8, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-8114 Domenic Malinconico v. Gerald J. Council, App. Div. (3 pp.) Plaintiff’s legal malpractice complaint was properly dismissed because he made general allegations of ineffective assistance of counsel in his federal criminal suit, and presented no expert report to support those allegations. ATTORNEYS — FEES 04-2-8115 Irene Odell v. Catherine C. Elphick v. Prudential Property and Casualty Ins. Co. of N.J., et al., App. Div. (4 pp.) Since automobile negligence case was not complex and was resolved by cross-motions after minimal discovery, trial court correctly noted that the case’s level of complexity did not justify the amount of fees that defense counsel sought, and properly reduced those fees. CONSUMER PROTECTION — AUTO REPAIR 09-2-8116 Prestige Auto Body v. United Servs. Auto. Ass’n, et al., App. Div. (9 pp.) Where the facts of the case — dealing with auto repair costs in excess of a written estimate — raised the issue of consumer fraud, the judge correctly raised those issues sua sponte, and, finding that plaintiff repair shop had violated the Consumer Fraud Act, properly dismissed its complaint against consumer for the balance of fees allegedly owed, but the component of the order finding plaintiff responsible for litigation defense costs is reversed. CORRECTIONS 13-2-8117 Dennis Pryor v. N.J. Dept. of Corrections, App. Div. (5pp.) Although the rule prohibiting inmates from using foul language is required to maintain order, the application of the rule to plaintiff, who used foul language in the context of a psychotherapy session where he had been encouraged to express himself, was erroneous, and his punishment is expunged. [Approved for publication March 8, 1996.] FAMILY LAW — BANKRUPTCY 20-2-8118 Hector Corral v. Cheryl Corral, App. Div. (12 pp.) Where, under the terms of a property settlement agreement, wife waived alimony and any interest in assets valued at over $1 million in consideration for her negotiated share of equitable distribution, and where more than 44 percent of her expected distribution was erased by husband’s unexpected bankruptcy, wife was entitled to relief from the judgment of equitable distribution, and the judge correctly awarded her permanent alimony. FAMILY LAW — RELIGIOUS EDUCATION 20-2-8119 Janet Lynn Hoefers v. William H. Jones Sr., App. Div. (35 pp. — includes one-page App. Div. opinion and 34-page Chancery Div. opinion, also approved for publication) Compelling agnostic father to pay for childrens’ education in a private religious school does not violate his constitutional rights, and does not constitute the court’s support of religion. [Approved for publication March 8, 1996.] GOVERNMENT — BIDDING 21-2-8120 Pub. Communications Assocs. Ltd. Inc., etc. v. Cy. of Union, et al., App. Div. (9 pp.) Since contract for phone system to be installed in county correctional system was a complex and required mixing both goods and services, the judge was correct in concluding that the county could validly award the contract without competitive bidding. INSURANCE — P.I.P. — DEEMER STATUTE 23-2-8121 State Farm Mut. Auto. Ins. Co. v. Eileen Crocker, App. Div. (10 pp.) A nonresident, insured under an out-of-state automobile policy, who was injured in a New Jersey accident, is entitled to binding arbitration of a dispute over personal injury protection benefits available to her by virtue of the “deemer statute,” N.J.S.A. 17:28-1.4. [Approved for publication March 8, 1996.] INSURANCE — VERBAL THRESHOLD 23-2-8122 Hope Loeffler v. Bahis Mansour, et al., App. Div. (4 pp.) The trial judge erred in failing to include the word “permanent” in the jury interrogatory describing the legislative requirements of a type 7 injury under the verbal threshold, and jury verdict finding that plaintiff met such requirements therefore must be reversed. 23-2-8123 Rona Cooper, et al. v. Ursula Kugelman, et al., App. Div. (22 pp.) (1) Although the objective evidence in the case was scant, there was enough to suggest that plaintiff suffered continuing spasm long after the accident, if the jury chose to believe it, and jury’s verdict for plaintiff is affirmed. (2) The judge did not err in failing to instruct the jury that plaintiff’s “significant limitation” under a type 8 injury must be permanent, since the Legislature included the word “permanent” for type 6 and 7 injuries, but specifically did not include it in the definition of a type 8 injury, and, therefore, a “significant limitation of use of a body function or system” need not necessarily be permanent. 23-2-8124 Charise Kelly v. Rita DiGiacopo, App. Div. (4 pp.) Plaintiff’s physicians’ reports, based on MRI studies showing physical abnormality, and taken in light of plaintiff’s statements about how her injuries limited her household and social activities, constituted objective, credible evidence that could support a finding in plaintiff’s favor, and summary judgment was improper. LABOR AND EMPLOYMENT — DISCRIMINATION 25-2-8125 S. Devendra K. Verma v. AT&T Bell Laboratories, etc., et al., App. Div. (5 pp.) Plaintiff’s claim of national origin discrimination was properly dismissed since plaintiff failed to proffer evidence that, following his termination, defendants sought to replace him, a requirement of the prima facie case. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8126 Maureen Ramirez v. Bd. of Review, App. Div. (6 pp.) Petitioner was properly declared ineligible for benefits because she had insufficient employment weeks and/or wages during the applicable base year. NEGLIGENCE 31-2-8127 Angela Fante, et al. v. Trump Taj Mahal Assocs. Partnership Inc., etc., App. Div. (12 pp.) The judge erred in dismissing the claims of 77-year-old plaintiff — alleging that casino was negligent in failing to warn her when she was trampled by a crowd reacting to the sudden, unannounced appearance of Donald Trump and Michael Jackson on the casino floor — since the judge erroneously concluded that expert testimony would be required to determine the correct degree of proper security. NEGLIGENCE — MUNICIPALITIES — TORT THRESHOLD 31-2-8128 Carol A. Rodino, et al. v. City of Union City, et al., App. Div. (5 pp.) Case involving plaintiff’s injuries from a fall into a pothole on a city street was properly dismissed, since plaintiff’s submissions failed to escalate to the level required for the Tort Claims Act threshold PARENT/CHILD 28-2-8129 N.J. D.Y.F.S. v. P.B., et al., App. Div. (12 pp.) On the evidence of the harm that had been caused, and would likely be caused in the future, by mother’s conduct, the judge correctly concluded that continuing parental rights of mother would do more harm than good, even though the likelihood of the children’s adoptability was unclear. 28-2-8130 Elena Balle v. Joseph R. Balle, App. Div. (5 pp.) The judge properly determined that defendant’s alleged admission — that he was plaintiff’s biological father — was a lay opinion and little more than speculation, and did not constitute the required showing of “exceptional circumstances” necessary to grant plaintiff relief from prior judgment which declared that defendant was not plaintiff’s father. PRODUCT LIABILITY — BANKRUPTCY 32-2-8131 Samuel P. Alloway III, et al. v. Gen. Marine Indus. L.P., et al., App. Div. (19 pp.) In case where plaintiff sued foreconomic losses due to the sinking of his boat, the trial judge erred in holding (1) that a consumer could not assert a product liability claim for economic losses to a product, (2) that a consumer who institutes a product liability claim for such economic loss to a product cannot proceed against the manufacturer’s successor, and (3) a consumer’s product liability claim for economic loss against a successor that purchased a bankrupt corporation’s assets in a bankruptcy proceeding is precluded by Section 363 of the Bankruptcy Code. [Approved for publication March 8, 1996.] PUBLIC EMPLOYEES 33-2-8132 In the Matter of Elizabeth Kay Duncan, App. Div. (4 pp.) In a case where employee appealed her suspension imposed for fighting and creating a disturbance on her job, the administrative law judge properly rejected employee’s claim that her behavior was caused by a reaction to prescription medication, since the employee had been instructed as to the procedure required to enforce a subpoena issued to her physician, and chose to proceed in the case without following such procedure. TORTS — DEFAMATION 36-2-8133 Carmine Fornaro Jr. v. Anna R. McGarry, et al., App. Div. (4 pp.) The statements of defendants — that the plaintiff, their brother, had wrongfully appropriated some of their deceased mother’s jewelry — were entitled to qualified privilege, since they were inquiries by interested parties relating to the proper administration of an estate, and plaintiff’s defamation complaint was correctly dismissed. WRONGFUL DEATH — ASBESTOS 40-2-8134 Anna M. Jones, etc. v. Owens-Corning Fiberglas Corp., App. Div. (13 pp.) The trial court erred in dismissing widow’s claim seeking damages attributable to the death of her husband as a result of colon cancer allegedly caused by exposure to asbestos, since the plaintiff’s proposed medical evidence was sufficient to withstand a summary judgment motion. [Approved for publication March 8, 1996.] CRIMINAL LAW AND PROCEDURE — FORFEITURE 14-2-8135 State v. One (1) 1987 Acura Legend, etc., et al., App. Div. (4 pp.) The Law Division erred in granting summary judgment to the defendant, since the evidence presented a question of material fact as to whether the defendant had used the car to transport firearms from New York to New Jersey. FEDERAL COURT CASES INSURANCE — FRAUD ON THE COURT — SANCTIONS 23-7-8136 Michael Perna, et al. v. Electronic Data Sys. Corp., U.S. Dist. Ct. (40 pp.) Where, during a document inspection in case filed by producer agent against servicing carrier — alleging that servicing carrier had breached its duty by failing to properly service the producer agent’s accounts — one of the partners of the producer agent willfully and in bad faith gained unauthorized access to certain materials and photocopied them, the court determines that the only appropriate sanction to punish the perpetration of fraud upon the court is that this partner’s individual claim should be dismissed, and servicing carrier’s motion in that regard is granted, however, since it appears that the partner acted in his own interest and not in the course of the partnership’s authorized activities, dismissal of the entire producer agent partnership’s claim is denied.

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