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Vol. 3 No. 244 Decisions Released Dec. 27, 1995 CONTRACTS — INSURANCE 11-2-7423 Housing Authority of the City of Newark, etc. v. McAllister & Johnson, etc., App. Div. (6 pp.) Motion to vacate default judgment in suit for breach of contract to insure was properly denied since the record contains no certification by defendant denying knowledge of the first trial date or that a default was entered, denying that it had notice of the proof hearing, or denying that its predicament was due to anything other than its own neglect. HEALTH — MEDICAID ELIGIBILITY 22-2-7424 Emily Natale v. Div. of Medical Assistance and Health Services, et al., App. Div. (8 pp.) Final decision denying plaintiff retroactive Medicaid benefits is affirmed, despite plaintiff’s equitable estoppel claim that she relied to her detriment on the Division’s letter that indicated it had reviewed her history and found that coverage would be provided contingent upon the financial eligibility determination, which had yet to be made. INSURANCE 23-2-7425 Lawrence A. Stein v. Metropolitan Entertainment, Inc., App. Div. (3 pp.) Where theatrical concert producer was covered under defendant’s prior group health insurance plan, but defendant negligently failed to notify him in a timely manner of the date of the cancellation of the coverage when he ceased to be a full-time employee, the judge properly found that defendant was obligated to continue coverage. INSURANCE — MISREPRESENTATIONS — RESCISSION 23-2-7426 The Union Central Life Ins. Co. v. Angela Khorozian, et al. v. Teresita Seijas, et al., App. Div. (9 pp.) Although the appeals court disagrees with the trial judge’s conclusion that the insured’s failure to reveal the nature of her other employment — as an undercover agent for the U.S. government — was a basis for rescission of her disability policy, her concealment of material facts regarding income received from that employment is sufficient to effect a rescission of the policy. INSURANCE — P.I.P. 23-2-7427 Sandra Battestella v. USAA Ins. Co., App. Div. (3 pp.) Although palliative chiropractic treatment is within the statutory scope of personal injury protection (PIP) compensability, the trial judge correctly concluded that plaintiff had failed to prove by a preponderance of the evidence that the extent of the palliative treatment rendered was either reasonable or necessary, and her complaint for payment of additional medical benefits was properly dismissed. LANDLORD/TENANT — PARKING LOTS 27-2-7428 Gregory Park Cooperative Corp. v. Crown Pkg. Corp., et al., App. Div. (8 pp.) Summary dismissal of landlord’s complaint for unpaid rent on commercial parking lot — because the six-year old lease in a redevelopment area of Jersey City was void ab initio for failure to obtain approval by the local redevelopment agency — was error since, inter alia, landlord could still recover for unjust enrichment or quantum meruit. [Approved for publication Dec. 27, 1995. Available online in NJ Full-Text Decisions.] LAND USE 26-2-7429 Frederick J. Waters, et al. v. Twp. of Galloway, etc., et al., App. Div. (26 pp.) Landowners who failed to comply with applicable land-use ordinances did not present prima facie proof of a denial of substantive due process in their quest to obtain a permit to construct a sanitary sewer system for their mobile home park, and a prior Board of Adjustment resolution declaring the park a legal nonconforming use did not entitle landowners to proceed without such compliance. [Approved for publication Dec. 27, 1995. Available online in NJ Full-Text Decisions.] NEGLIGENCE 31-2-7430 Gwendolyn Coleman v. Michael A. Curran, et al.; Randolph Harris v. Michael A. Curran, et al., App. Div. (4 pp.) Since bus driver admitted negligent conduct when he testified that he took his eye off the mirror and turned the wheel the wrong way, and that, if he had driven the bus differently through an opening between two vehicles, the accident would not have happened, no cause is reversed. 31-2-7431 James Talton, et al. v. Voorhees Twp., App. Div. (4 pp.) Since the plaintiff’s expert’s opinion lacked a factual basis for his conclusion that the municipality was aware of the existence of the pothole in which plaintiff fell and broke his ankle while jogging, summary judgment in favor of the municipality is affirmed. 31-2-7432 Catherine Maisonet, et al. v. Kenneth T. Hoffman, App. Div. (7 pp.) Where inadequate representation of counsel left plaintiffs — two of whom are infants — with summary judgment granted as to the defendant owner of the vehicle and denial of their motion (filed prior to summary judgment) to amend the complaint to add the vehicle’s driver, in the interests of justice the plaintiffs’ case will remain open on condition that a prompt motion to amend is made in full compliance with court rules. PRODUCT LIABILITY — EXPERTS 32-2-7433 Isaac B. Leventhal, et al. v. Stihl, Inc., et al., App. Div. (9 pp.) The mere fact that a witness is an expert in a wide general field, such as engineering, does not make everything he says admissible as expert testimony, and the judge properly found that plaintiffs’ expert lacked the necessary qualifications to testify about the design and function of chain saws. REAL ESTATE — ADVERSE POSSESSION 34-2-7434 Bruce Gilson, et al. v. Keith Boxe, et al., App. Div. (3 pp.) Summary judgment dismissing plaintiffs’ adverse possession complaint against defendants was proper since the plaintiffs had failed to prove a “hostile” entry upon and use of the property in question. WILLS, ESTATES AND TRUSTS 38-2-7435 In the Matter of the Estate of Peter Rogers, App. Div. (7 pp.) Award of a counsel fee to excluded claimants’ attorney was proper where excluded claimants prevailed in their claim of a right to share in the estate, but appointment of one of the excluded claimants as sole administrator was erroneous, since permitting only one of the two sets of heirs to administrate the estate will lead to inevitable difficulties. WORKERS’ COMPENSATION 39-2-7436 Alicia J. Thames v. Laidlaw Transit, Inc., App. Div. (6 pp.) Although judge properly determined that petitioner had not sustained her burden of proving permanency of injury, his decision that employer was not responsible for chiropractor’s bill on the ground that petitioner did not properly notify employer of her need for further medical treatment is reversed, since the record reveals repeated efforts by both the petitioner and the chiropractor to advise the employer of the diagnosis and treatment, and employer made no effort to respond to these repeated overtures. CRIMINAL LAW AND PROCEDURE — DEATH BY AUTO 14-2-7437 State v. Thomas J. Lane, App. Div. (14 pp.) The trial judge correctly charged the jury on the subtle differences between “recklessness” as envisioned by the Legislature in death by auto and “recklessness” as envisioned in the manslaughter statute, and properly left it for the jury to determine whether the defendant’s intoxication would constitute an additional act of recklessness beyond his reckless driving. [Approved for publication Dec. 27, 1995. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES ARBITRATION — CONTRACTS 03-7-7438 FAWBS, Inc., etc. v. Chrysler Corp., et al., U.S. Dist. Ct. (15 pp.) Defendant’s motion to stay this contractual dispute and to compel arbitration is granted, since the sales and service agreement between the parties contains a valid arbitration agreement, the dispute falls within the substantive parameters of that agreement, and the plaintiff has not either expressly nor impliedly waived arbitration. DEBTOR/CREDITOR 15-7-7439 Shivom Leather Arts, et al. v. Excelled Sheepskin and Leather Coat Corp., et al., U.S. Dist. Ct. (18 pp.) In a dispute over unpaid invoices, (1) since an issue of material fact exists as to whether defendant has fulfilled its obligations under a prior settlement agreement with plaintiff KAB, defendant’s request for summary judgment on the KAB invoices covered by that agreement is denied, and (2) since certain invoices of plaintiff Shivom are dated more than four years before the commencement of this action, they are time-barred and defendant is granted summary judgment as to those invoices. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-7-7440 Ronald W. Telepo v. Christine Todd Whitman, etc., et al., U.S. Dist. Ct. (7 pp.) Although tier classification proceedings have been initiated, plaintiff has not established a right either to an emergent restraining order or to a preliminary injunction because adequate procedural due process opportunities are available in Superior Court before a final determination of his classification is made.

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