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Vol. 4 No. 14 Decisions Released Jan. 23, 1996 STATE COURT CASES CONTRACTS — QUANTUM MERUIT 11-2-7624 John Ambrose Jr. v. William Smith Jr., App. Div. (8 pp.) Although jury correctly determined that no partnership existed between neighboring landowners regarding real estate development, but that plaintiff nevertheless was entitled to be compensated for his efforts in relocating a stream encroachment on a quantum meruit basis, the amount awarded cannot be based upon speculation regarding possible future development, and remittitur is ordered in the amount of the reasonable value of plaintiff’s services. CORPORATIONS 12-2-7625 John McGovern v. Rocco Turtur, et al., App. Div. (19 pp.) Record supports judge’s decision to require plaintiff to reimburse defendants for services rendered to closely held corporation — in which plaintiff and defendants were sole shareholders and directors — because defendants’ claim was not predicated upon a misappropriation or waste of corporate assets, but instead asked for compensation for services for which plaintiff was personally liable under the shareholders’ agreement. FAMILY LAW 20-2-7626 Frank Francomacaro v. Karen Francomacaro, App. Div. (6 pp.) Trial judge abused his discretion in ordering a sale of the litigants’ marital home, since the best interests of the children, weighed with parental support obligations, dictate that husband and custodial children be allowed to remain in the home until the youngest son graduates from high school. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7627 B.S. v. T.S., App. Div. (6 pp.) Although a husband’s words must be analyzed objectively, the analysis must be from the perspective of an ordinary person who, like the wife, had been subjected to a 25-year pattern of abuse and intimidation, and, therefore, the court correctly determined that husband had made terroristic threats against wife. 20-2-7628 D.C. v. F.R., App. Div. (17 pp.) Although the amendment to the Domestic Violence Act covering dating situations should not be applied retroactively, the pre-amendment history of domestic violence between the parties may be considered by a trial court in determining the appropriate injunctive or monetary remedy where an act of domestic violence arising out of a dating relationship has occurred after the effective date of the amendment. [Available online in NJ Full-Text Decisions.] GOVERNMENT 21-2-7629 Dorchester Manor, etc. v. Borough of New Milford, etc., App. Div. (19 pp. – includes lower court opinion) Trial judge balanced the critical factors of municipality’s budget constraints, the financial effect upon apartment developer, and the effective date of a statute authorizing reimbursement to property owners who do not receive municipal service for garbage collection, and correctly determined that fundamental fairness required municipality to reimburse apartment complex owner for the cost of garbage collection and disposal fees. [Approved for publication Jan. 23, 1996.] GOVERNMENT — BIDS 21-2-7630 Leona Schonberg, et al. v. Essex County Util. Auth., et al., App. Div. (8 pp.) Utility authority correctly determined that co-defendant was lowest responsible bidder and awarded it a contract for the transportation of ash residue produced by county resource recovery facility, since any bid defects were immaterial. INSURANCE 23-2-7631 Robert Fichera v. Liberty Mut. Ins. Co., App. Div. (5 pp.) Insurance commissioner erred in concluding that insurer had the right to refuse to renew insured’s automobile policy — due to the accumulation of eight points against his license — since the record does not support the conclusion that insured was “at least proportionately responsible” for an “accident…which resulted in a payment by the insurer of at least $500″ within the meaning of N.J.A.C. 11:3-34.3. 23-2-7632 Premium Payment Plan, etc., et al. v. Pappas Trucking Ins. Inc., etc., et al., App. Div. (5 pp.) Financier of insurance premiums for several trucking firms under the state Commercial Automobile Insurance Plan had standing to be reimbursed for any unearned premiums upon cancellation of policies by insurers, and summary judgment in its favor was proper. INSURANCE — P.I.P. 23-2-7633 Frankie Taylor, et al. v. Royal Ins. Co., App. Div. (5 pp.) Insurer properly terminated P.I.P. payments for chiropractic services to plaintiff since they constituted unnecessary palliative treatments and would not help improve plaintiff’s condition. INSURANCE — VERBAL THRESHOLD 23-2-7634 Ivan Lipson v. Michael Ushler, App. Div. (6 pp.) Since sprain and strain, complicated by bulging discs, together with spasm, clearly establish adequate objective evidence of injury, and plaintiff’s complaints of being unable to engage in various sporting activities and perform his job would satisfy the “serious impact” standard, summary judgment should not have been granted to defense. 23-2-7635 Cathryne M. Loftus-Smith, et al. v. Susan Margaret Henry, et al., App. Div. (19 pp.) Plaintiff’s complaint should not have been dismissed — for failure to meet the verbal threshold — against nonresident driver insured by a foreign insurance company not authorized to do business in this state, even though the foreign insurance policy required the insurer to provide the same PIP protection as this state, since nonresident was not an “exempt” person under N.J.S.A. 39:6A-8a and was not qualified to raise the verbal threshold as a defense. [Approved for publication Jan. 23, 1996. Available online in NJ Full-Text Decisions.] LANDLORD/TENANT — COMMERCIAL USE RESTRICTIONS 27-2-7636 Drammaci’s Inc., etc. v. Crown-Am. Corp., etc., App. Div. (14 pp.) Where, despite repeated complaints to mall landlord about competitor’s violations of menu restrictions in food court lease, tenant was not granted relief for almost a year, court correctly found that tenant had been harmed by the direct competition and was entitled to damages for losses it sustained, although not anticipated profits, capital and equipment investments. LAND USE 26-2-7637 Hospitality Inv. of S. St. Inc. v. Bd. of Adjustment of the Town of Morristown; Elizabeth Mast, Intervenor, App. Div. (14 pp.) In case involving the expansion of a restaurant/bar, court properly determined that issue was not whether operating the facility with a “nightclub” was a valid pre-existing nonconforming use, but whether the owner had violated a 1987 use variance or any subsequent approvals for the property, and, determining that owner had not, court correctly reversed municipal board’s finding of violation and dismissed residential landowner’s challenge in lieu of prerogative writ. MUNICIPAL LAW 30-2-7638 Timber Ridge Complex, Ltd. v. Multiple Dwelling Regulation Bd. of the Borough of Lindenwold, et al., App. Div. (7 pp.) Although the court does not agree with the trial judge’s conclusion that plaintiff’s constitutional challenge to municipality’s rent control ordinance was barred by res judicata, the judge’s dismissal of the challenge is affirmed because the ordinance is constitutionally valid on its face and as applied to the case facts. NEGLIGENCE 31-2-7639 Charles Filocco, et al. v. Franklin Floors Inc., et al., App. Div. (19 pp.) In case involving butcher’s injuries from fall on supermarket’s meat department floor, a new trial is required since (1) each of the expert’s conclusions was egregiously and fatally infected by an erroneous and uncorrected factual assumption regarding the degree of the floor’s pitch, and (2) the trial judge erred in withholding from the jury the issues of proximate causation and of intervening causation of plaintiff’s ultimate disability with respect to a second accident he suffered at the supermarket. NEGLIGENCE — CHARITABLE IMMUNITY 31-2-7640 Dennis Banks, etc. v. Wheaton Historical Assn., t/a Wheaton Village, App. Div. (15 pp.) Where child was bitten by a rooster at an exhibition of barnyard animals in a historical village, the motion judge properly granted the village summary judgment on the defense of charitable immunity, concluding that village qualified as a nonprofit corporation under N.J.S.A. 2A:53A-7 and that child was a beneficiary of the charitable and educational purposes for which village was organized. NEGLIGENCE — INSURANCE — LOADING/UNLOADING 31-2-7641 In the Matter of: Joseph Kennedy v. Jefferson Smurfit Co., et al. v. North Operating Co., et al., App. Div. (16 pp.) Since the palletizing of bundles, and, therefore, selection of the pallets themselves, were “preparatory actions” to shipment of goods, they were an integral part of the loading and unloading process, and when plaintiff was injured while loading his truck due to alleged defects in the pallets, coverage was provided by the truck’s insurer, since the loading constituted a “use” of the truck. [Approved for publication Jan. 23, 1996. Available online in NJ Full-Text Decisions.] NEGLIGENCE — TORT CLAIMS ACT 31-2-7642 Eduardo Velasquez v. City of Newark, et al., App. Div. (6 pp.) Summary judgment in auto accident case was properly granted to defendants, since plaintiff had not demonstrated “permanent” injury under the Tort Claims Act, and, further, judge properly dismissed claim for unreimbursed economic damages in light of the Supreme Court’s holding in Roig v. Kelsey, 135 N.J. 500 (1994). TORTS — MALICIOUS PROSECUTION 36-2-7643 Donald Johansen, et al. v. Robert Englese, et al., App. Div. (4 pp.) Where calls threatening a police officer’s life were made from plaintiff’s phone, probable cause existed to arrest plaintiff for the threats without further investigation, and, since plaintiff was released as soon as it was discovered that another person had used his phone to make the calls, his malicious prosecution case is dismissed. FEDERAL COURT CASES BANKING — FORGED INSTRUMENTS — AMENDING PLEADINGS 06-7-7644 Amboy Nat’l Bank v. Gen. Ins. Co. of Trieste and Venice, et al.; Citibank, N.A. v. Midlantic Nat’l Bank, et al.; Midlantic Bank, N.A., etc. v. Resolution Trust Corp., etc., et al., U.S. Dist. Ct. (9 pp.) Where assignee of mortgagee sues insurer and various banks — seeking recovery of fire settlement proceeds paid on a forged endorsement of settlement check — the court denies as futile the motions of two banks to amend their answers to include an additional affirmative defense based upon impairment of recourse under New Jersey Uniform Commercial Code Section 3-606, since the mortgagee’s assignee was not a holder of the instrument, and the defense would therefore be inapplicable. INTELLECTUAL PROPERTY — INJUNCTIONS 53-7-7645 Metalurgica Detroit, S.A., et al. v. Alkon Corp., et al., U.S. Dist. Ct. (9 pp.) Despite plaintiff’s claims to the contrary, since the clear language of the parties’ license agreement granted defendant the exclusive right to use plaintiff’s triangle trademark in perpetuity in the U.S., the plaintiff’s attempt to create a subsidiary in the U.S. to directly market products bearing the mark is in violation of defendant’s rights, and since defendant would suffer irreparable harm balanced with the minimal financial loss to plaintiff, defendant is entitled to an injunction prohibiting plaintiff from further use of the mark through any source other than defendant.

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