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Vol. 3 No. 250 Decisions Released Jan. 5, 1996 STATE COURT CASES CIVIL PROCEDURE — CLAWANS CHARGE 07-2-7491 Antoinette Nisivoccia, etc., et al. v. Ademhill Assocs., etc., et al., App. Div. (17 pp.) Since the plaintiffs in this civil case had the “last word” at trial, and, thus, the opportunity to address the defense attorney’s comments about plaintiffs’ failure to produce a corroborative witness, and, moreover, since the comments could hardly be considered prejudicial, the remarks did not prejudice the jury against the plaintiffs due to any absence of an authorized Clawans charge or pre-approved summation content, and the judge should not have granted plaintiffs’ new trial motion after a no cause verdict in a negligence case. [Approved for publication Jan. 5, 1995. Available online in NJ Full-Text Decisions.] FAMILY LAW 20-2-7492 Mary Louise Golden v. James J. Golden, III, App. Div. (24 pp.) The trial judge erroneously calculated a equitable distribution award to wife of husband’s monthly tort settlement annuity, which should reflect an amount equal to 50 percent of pre-divorce complaint lost wages, and, since the judge’s award of limited rehabilitative alimony was influenced substantially by that aspect of equitable distribution, the court, exercising original jurisdiction, determines that the factors in the case warrant a permanent alimony award. INSURANCE 23-2-7493 Corradetti Enter. Inc. v. Royal Ins. Co. of Am., App. Div. (6 pp.) In a case where plaintiff sues for damages for negligent storage of merchandise, Law Division judge correctly upheld the insurer’s coverage disclaimer due to the noncooperation of the insured storage company, since insurer was prejudiced by such lack of cooperation. INSURANCE — DISABILITY 23-2-7494 Paul Revere Life Ins. Co. v. Dr. John R. Manzella, App. Div. (8 pp.) The court affirms the rescission of disability policy since the insured had made material fact misrepresentations in his application, and there was ample evidence to support the jury’s finding that insured’s intervening disability due to diabetes between the policy’s effective date and the onset of the claimed disability for his stroke had tolled the running of the incontestability period and was of sufficient duration so that the incontestability period had not yet run. INSURANCE — VERBAL THRESHOLD 23-2-7495 Ana Ascuas v. Warren Cooper, App. Div. (2 pp.) Plaintiff’s medical evidence — consisting of range of motion tests, a general mention of discogenic radiculopathy, and the mere reference to spasm without further elaboration — falls short of establishing injury sufficiently serious to qualify plaintiff as having met the statutory verbal threshold, and her case was properly dismissed. 23-2-7496 Iris Montijo, et al. v. Lazaro E. Terry, et al., App. Div. (7 pp.) Although plaintiff’s doctor observed muscle spasm more than three years after the accident, since the doctor did not provide the required nexus between the injury and the disability, and since the report was a “net opinion,” plaintiff’s case was correctly dismissed. LABOR AND EMPLOYMENT 25-2-7497 Joseph DiPasquale v. Bd. of Review, App. Div. (8 pp.) Since the Board of Review improperly interpreted the statute dealing with alternate benefit year calculation in the context of the uncontroverted facts, judgment denying petitioner the benefit of that calculation is reversed. [Approved for publication Jan. 5, 1995. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — STOCK OPTIONS 25-2-7498 Richard Gillman v. Bally Mfg. Corp., et al., App. Div. (12 pp.) Summary judgment for employer was proper since former executive — a sophisticated businessman — had retired, and stock option agreement clearly provided that the options would lapse within one year after his retirement, executive’s failure to timely exercise the options barred him from doing so at a later time, and former employer made no fraudulent or negligent statements to lead executive to believe otherwise. [Approved for publication Jan. 5, 1995. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7499 Edward T. Mitchell v. Bd. of Review, App. Div. (4 pp.) Decision of Board of Review that reduced petitioner’s benefit rate in light of his choice to accept voluntary enhanced termination program, is affirmed, since the application of the statutes to the facts clearly supports the decision, which is entitled to deference. LAND USE 26-2-7500 WaWa Inc. v. City of Margate Planning Bd., App. Div. (3 pp.) Where planning board granted convenience store’s variance and site plan application to construct a walk-in freezer in the back of its existing store, subject to the condition that tractor-trailer deliveries would be prohibited before 9 a.m. and after midnight, which condition the store owner challenged, trial judge correctly upheld the planning board’s decision, finding that the condition served a legitimate zoning objective — the regulation of traffic and noise. NEGLIGENCE — TORT CLAIMS ACT 31-2-7501 Isabelle Heilig v. Twp. of North Brunswick, Bd. of Educ., App. Div. (11 pp.) Plaintiff’s case against school board for injuries she received when she fell on school steps was properly dismissed by the judge at the conclusion of her case, since she had failed to prove that the school board’s did not act “palpably unreasonable” as a matter of law in putting sand on icy steps, and thus did not meet the standard for proving a dangerous property condition under the Tort Claims Act. REAL ESTATE — MT. LAUREL 34-2-7502 East/West Venture, etc. v. Borough of Ft. Lee, etc., et al., App. Div. (32 pp.) Trial judge’s approval of a settlement in Mt. Laurel builder’s remedy litigation after a “fairness” hearing is affirmed with certain modifications, and does not constitute “contract zoning.” [Approved for publication Jan. 5, 1995. Available online in NJ Full-Text Decisions.] TAXATION — SALES AND USE TAX — BOATS 35-5-7503 Paul Hepler v. Director, Div. of Taxation, Tax Ct. (16 pp.) Since plaintiff’s vessel is used primarily as a charter boat for divers, and not as a party boat or “head boat” for commercial fishing, the decision of the director of the division of taxation that its purchase is not exempt from use tax is affirmed. [Approved for publication. Available online in NJ Full-Text Decisions] CRIMINAL LAW AND PROCEDURE 14-2-7504 State v. Steven McCall, App. Div. (7 pp.) The trial court erred when it permitted one witness to express her opinion on defendant’s guilt and when it permitted as evidence a photographic array used to identify defendant, and, since these errors combine to deprive defendant of a fair trial, his conviction is reversed. FEDERAL COURT CASES DEBTOR/CREDITOR — LANDLORD/TENANT 15-7-7505 Woods Corp. Assocs., etc., et al. v. Signet Star Holdings, Inc., et al., U.S. Dist. Ct. (32 pp.) Where defaulting mortgagor’s debt restructuring agreement with mortgagee was contingent upon tenant’s signing a lessee’s statement, which it refused to do, and where mortgagor then sued tenant and mortgagee, (1) claim that tenant breached lease fails because mortgagor absolutely assigned the lease and rents to mortgagee, and has no right to bring such a claim, (2) claim that tenant tortiously interfered with mortgagor’s prospective economic advantage or contractual relationship with mortgagee fails since there is no evidence that tenant specifically intended to injure mortgagor or interfere with any relationships, (3) claim against mortgagee for negligently naming tenant as party to foreclosure suit is dismissed since mortgagee had the contractual right to name the tenant, the prudent practice in foreclosures is to name all interested parties, and mortgagee owed no duty to mortgagor not to name tenant, and (4) claim that mortgagee breached oral agreements to restructure the loans and dealt in bad faith is dismissed since mortgagee did nothing more than exercise its contractual right to protect its security interest. [For publication. Available online in 3rd Circuit - District Court.] LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-7506 William Brown Jr., et al. v. Local #52, et al., U.S. Dist. Ct. (13 pp.) Where pro se plaintiffs seek to amend their complaint two-and-one-half years after the filing of the original complaint, but where the amendment substantively deals with the same employment discrimination issues and cannot therefore surprise or prejudice the defendants, and, in fact, clarifies the issues, motion to amend is granted. LABOR AND EMPLOYMENT — ERISA 25-7-7507 Sandra Slaydon Hawes, et al. v. Johnson & Johnson, U.S. Dist. Ct. (8 pp.) On former employees’ challenge to defendant’s policy that required them to choose between a voluntary early retirement enhancement program and the standard severance pay, defendant is entitled to summary judgment, since the decision was not arbitrary and capricious and is clearly reserved under the terms of defendant’s severance plan, and the age discrimination claim of employees is also dismissed, since they were actually treated better than younger employees.

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