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Vol. 4 No. 32 – FEBRUARY 16, 1996 STATE COURT CASES ARBITRATION 03-2-7904 Warner Ins. Sys., etc. v. Joy Hollis, App. Div. (4 pp.) Arbitrator did not exhibit partiality by failing to have someone contact insurer’s counsel, who didn’t appear, since the scheduling error was the attorney’s office’s fault, not the arbitrator’s, nor did the fact that the nature of the arbitrator’s private practice was primarily plaintiff’s negligence litigation exhibit partiality, since the arbitrator’s qualifications were known to both parties before the arbitration hearing, and there were no objections. AUTOMOBILES — LICENSE SUSPENSION 05-2-7905 Div. of Motor Vehicles v. Richard W. Elliott Jr., App. Div. (9 pp.) Director of Division of Motor Vehicles correctly suspended complainant’s commercial driver’s license for 60 days based upon his conviction in another state of two serious traffic violations in a commercial vehicle within a three-year period, and complainant received the due process to which he was entitled. CONSUMER PROTECTION 09-2-7906 Rug & Design v. Steven Rubenstein, App. Div. (4 pp.) Since the writing showing the parties’ agreement for rug installation was not signed by the defendant in violation of the Consumer Fraud Act, plaintiff was not entitled to recover, and judgment for plaintiff is reversed and entered in favor of defendant. ENVIRONMENT — INSURANCE 17-2-7907 Carpenter Technology Corp. v. Admiral Ins. Co., et al., App. Div. (7 pp.) Since the elements contained in an environmental insurance policy’s definition of a “covered claim” are present, and based upon the insurer’s actions since it received the files in this matter, insurer is estopped to deny coverage and partial summary judgment in favor of plaintiff was proper. ENVIRONMENT — RIGHT TO JURY TRIAL 17-2-7908 GEI Int’l Corp., etc. v. St. Paul Fire & Marine Ins. Co., et al., App. Div. (13 pp.) The trial court properly struck plaintiff’s demand for a jury trial on its Spill Act insurance coverage claims and contribution for cleanup costs, since there is no common law right to a trial in such cases, and the Legislature clearly intended a court to make these equitable determinations without a jury. [Approved for publication Feb. 16, 1996.] EVIDENCE 19-2-7909 Robert Link v. Mark A. Miller, et al., App. Div. (9 pp.) In a negligence suit arising out of a collision, denial of new trial after a verdict of no negligence was proper, since (1) judge’s limiting instruction when defense counsel asked an inappropriate question referring to alcohol was sufficient, (2) evidence of plaintiff’s prior criminal conviction was properly admitted to challenge his credibility, and (3) the trial court did not err in refusing to admit a prior inconsistent statement of an unavailable witness. FAMILY LAW 20-2-7910 Nancy Giordano v. John Giordano Jr., App. Div. (18 pp.) (1) Defendant’s motion to vacate divorce judgment was correctly denied, since the judgment was validly obtained by wife through proper use of substituted service when defendant, having agreed to pay child support, fled the state and evaded plaintiff and his obligations, and (2) defendant, who paid nothing until he was indicted for willful non-support and contempt, cannot now argue that retroactive adjustment of his child support arrearages is “manifestly unjust.” INSURANCE — VERBAL THRESHOLD 23-2-7911 Georgina Soto, et al. v. Antonio O. Silva, et al., App. Div. (6 pp.) Since plaintiff’s sprains and strains do not satisfy the verbal threshold and since she has failed to set forth a definite time frame during which she was unable to perform substantially all of her customary activities, her case alleging a Type 9 injury under the verbal threshold was correctly dismissed. LABOR AND EMPLOYMENT — TITLE VII 25-2-7912 Edouard J. Casseus v. Elizabeth Gen. Medical Center, App. Div. (12 pp.) Although plaintiff, a black Haitian male, is a member of a protected class and has made out a prima facie Title VII discrimination case, defendant has produced a legitimate reason for plaintiff’s demotion — that he failed to perform and was unqualified for the position of sanitation supervisor — and, since plaintiff has offered no evidence that the reason is pretextual, and since the record is barren of any evidence of racial hostility toward plaintiff, his case was properly dismissed. [Approved for publication Feb. 16, 1996.] PRODUCT LIABILITY 32-2-7913 Elizabeth Konsuvo, et al. v. Chrysler Motors Corp., et al., App. Div. (13 pp.) Judge’s factual findings regarding the viability of plaintiffs’ manufacturing-defect claim were not fatally inconsistent, and he properly deleted any reference to that claim from the jury verdict form, noting that plaintiff’s expert had not implicated such a defect as a possible cause of the unexplained acceleration of plaintiffs’ Jeep. PUBLIC EMPLOYEES 33-2-7914 In the Matter of Michael Jordan, App. Div. (4 pp.) Merit System Board correctly concluded that firefighter forfeited his office with the municipal fire department because of his federal criminal conviction for conspiracy to possess cocaine. REAL ESTATE — CONDOMINIUMS 34-2-7915 Aram K. Jerrehian Jr. v. Ass’n of Owners of the Gardens Plaza, a Condominium, App. Div. (7 pp.) Reversal is required of judgment holding that condominium homeowners’ association was within its rights not to replace plaintiff’s windows at its expense, even though the window seals were broken through no fault of the plaintiff, since the windows constitute a portion of the outside wall, and the master deed mandates that the association maintain, repair and replace them. REAL ESTATE — HOMEOWNERS’ WARRANTIES 34-2-7916 Joan Vernose, et al. v. John Forster, et al. v. A.K. Bldrs., Inc., App. Div. (4 pp.) The trial judge erred in holding that the language of the homeowners’ warranty “clearly stated” that the parties had elected the warranty as the sole dispute remedy, barring arbitration, and plaintiffs were entitled to arbitrate their dispute concerning defendant’s deck construction. CRIMINAL LAW AND PROCEDURE 14-2-7917 State v. Dennis G. Ippolito, App. Div. (12 pp.) In a case where defendant was convicted of theft of movable property, reversible error occurred when the judge failed to instruct the jury on defendant’s “claim of right” defense, and the state’s contention that the application of this defense is limited to cases where defendant can claim actual ownership of property allegedly taken is without merit. [Approved for publication Feb. 16, 1996.] 14-2-7918 State v. Louis Jones, App. Div. (21 pp.) Defendant’s state prosecution for third-degree cocaine possession and first-degree possession of cocaine with intent to distribute were not barred under N.J.S.A. 2C:1-11 because of defendant’s previous federal conviction in North Carolina for conspiracy to distribute cocaine, and for violating the Travel Act, since the elements of proof are significantly different; however, the judge’s failure to instruct the jury in accordance with State v. Hampton, 61 N.J. 250 (1972) — concerning its duty to determine the credibility of defendant’s out-of-court admission — constituted plain error and requires a new trial. [Approved for publication Feb. 16, 1996.] 14-2-7919 State v. Ramon Liriano, App. Div. (14 pp.) The judge erred in admitting hearsay evidence concerning a domestic violence victim’s state of mind, and defendant’s conviction for terroristic threats is reversed. 14-2-7920 State, in the interest of M.A., a juvenile, App. Div. (3 pp.) The judge erroneously dismissed, as time-barred, a prosecutor’s motion for a waiver hearing, holding that the date of the victim’s first report of an incident to the prosecutor’s Sexual Assault Victims’ Assistance Unit triggered the 30-day period for the prosecutor’s office to request referral of this juvenile matter to the adult court, since it is the later date — on which the actual complaint was filed — which triggers the time constraints, and the application was timely. Editor’s Note: There will be no Alert Monday due to the President’s Day holiday.

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