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Vol. 3 No. 236 Decisions Released Dec. 14, 1995 STATE COURT CASES ATTORNEY/CLIENT 04-2-7327 Henry Melloul v. Marvin H. Sunshine, et al., App. Div. (3 pp.) Since plaintiff’s case is a complex legal malpractice action, expert testimony was necessary to establish the alleged deviation from accepted standards of practice, and, in the absence of such testimony, plaintiff’s case was correctly dismissed. AUTOMOBILES — LICENSE SUSPENSION 05-2-7328 In the Matter of Daniel J. Harris, App. Div. (6 pp.) Administrative order suspending appellant’s driver’s license for one year was proper because appellant’s carelessness was the major contributing factor to a fatal automobile accident. CORRECTIONS 13-2-7329 Frank T. Miller v. James F. Barbo, App. Div. (3 pp.) Inmate’s complaint was properly dismissed because he did not properly pursue his administrative remedy with respect to any specific incident with his outgoing and incoming mail. 13-2-7330 Frank T. Miller v. James F. Barbo, App. Div. (4 pp.) Inmate’s Prerogative writ action — complaining that improprieties with his “interoffice correspondence” constitute a violation of his rights — is inappropriate and is dismissed, since plaintiff should have pursued relief through the Department of Corrections. DEBTOR/CREDITOR 15-2-7331 United Jersey Bank/Central, N.A. v. N.J. Economic Development Authority, et al., App. Div. (6 pp.) Court properly granted bank judgment on its suit to collect against individual guarantors of defaulted loan, since guarantors did not offer competent proof that any of the bank’s actions violated duties of good faith and fair dealing; that bank agreed to forbear from any of its remedies; or that bank acted in a commercially unreasonable way. DEBTOR/CREDITOR — HARASSMENT 15-2-7332 Nickola Pirinski v. Newark Beth Israel Medical Center, et al., App. Div. (6 pp.) Hospital’s efforts to collect delinquent debts owed to it by plaintiff would not be deemed actionable using the standards of the criminal harassment statute; the federal Fair Debt Collection Practices Act; or even the tenets of a claim for intentional infliction of emotional distress; and dismissal of the plaintiff’s suit was proper. FAMILY LAW 20-2-7333 David P. Cousins v. Theresa A. Cousins, App. Div. (5 pp.) Since the documentary submissions of wife establish a prima facie case of changed circumstances, and the material facts were in conflict, the Family Part was obliged to conduct a plenary hearing on wife’s motion for change of custody for her daughter, and denial of such motion is reversed. INSURANCE — VERBAL THRESHOLD 23-2-7334 Rose A. Chapman, et al. v. Victor Howell; Deborah A. Burns, et al. v. Rose A. Chapman, et al., App. Div. (6 pp.) Since judge found that plaintiff’s bilateral carpal tunnel syndrome was established by objective credible evidence, and causally related to the accident, and a genuine question of material fact exists as to whether this condition has had a serious impact on the quality of plaintiff’s life, summary judgment should not have been granted to the defense. 23-2-7335 Gary Slater, et al. v. Jane Pearlstein, et al., App. Div. (6 pp.) Since there is no credible, objective medical evidence in the record that plaintiff’s life has been significantly or seriously impacted within the contemplation of the verbal threshold statute, her case was properly dismissed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7336 Angela Houghton v. Bd. of Review, et al., App. Div. (5 pp.) When appellant accepted an inducement for early retirement offered by her employer and quit her job as a senior platform clerk, she left work voluntarily without good cause attributable to the work, and was properly disqualified for unemployment compensation benefits. LANDLORD/TENANT 27-2-7337 2702 Cindel Drive Associates, L.P., etc. v. Transphase Systems, Inc., etc., App. Div. (3 pp.) Where tenant rejected landlord’s offer to terminate the lease early, tenant’s conduct in thereafter vacating early cannot be considered as a reactivation of the landlord’s offer, and tenant’s leaving at that point constituted a breach of the lease, justifying judgment for landlord. PRODUCT LIABILITY 32-2-7338 Pedro Calderon v. Machinenfabriek Bollegraaf Appingedam BV, et al., App. Div. (18 pp.) Judgment dismissing plaintiff’s complaint was proper, since there is no question that the jury, after a sound analysis of the facts and a correct exposition of the relevant law by the trial judge, found that the inadequate warnings on a baling machine were not the proximate cause of plaintiff’s arm being amputated when he reached into the machine to untangle some wire. [Approved for publication Dec. 14, 1995. Available online in NJ Full-Text Decisions.] REAL ESTATE — SPECIFIC PERFORMANCE 34-2-7339 Brumar, a Partnership v. Wayne Borowski, et al., App. Div. (4 pp.) Court affirms the dismissal of plaintiff’s complaint — seeking specific performance of contract for purchase of a condominium — since the plaintiff did not obtain its mortgage within the contractually-specified time period, and defendant legally had the right to cancel the contract. TAXATION 35-5-7340 Daniel Schiff, et al. v. Director, Div. of Taxation, Tax Ct. (22 pp.) In computing taxpayers’ distributive share of gain from the disposition of partnership property, the property’s adjusted basis for federal income tax purposes must be used, even though plaintiff derived no tax benefit for N.J. gross income tax purposes in prior years from his share of partnership losses primarily attributable to depreciation deductions claimed by the partnership in those early years. [Approved for publication.] WILLS, ESTATES AND TRUSTS — TAXATION 38-1-7341 Leonard F. Hill, et al. v. Estate of Mary Lea Johnson Richards, et al., Supreme Ct. (24 pp.) Because the beneficiary who received a disproportionate advance distribution drafted the agreement for an interim distribution, he was in the best position to foresee and foreclose the possibility of disproportionate tax treatment of the distributions, so it is unfair to adjust retroactively the shares of other beneficiaries who relied on the court-approved final distribution of the trust assets.[Approved for Publication. Available online in NJ Full-Text Decisions.] WORKERS’ COMPENSATION 39-2-7342 Joseph A. Scavone v. D & J General Contracting, App. Div. (8 pp.) Since the record fails to disclose any credible, objective medical evidence to support the trial court’s finding of aggravation of petitioner’s back injury, judgment is reversed, and the compensation carrier on the date of the injury is responsible for all temporary benefits. CRIMINAL LAW AND PROCEDURE 14-2-7343 State v. Daniel Pasterick, Jr., App. Div. (20 pp.) Trial court’s incorrect charge on passion/provocation manslaughter was harmless error; however, testimony of psychiatrist, whom State presented as a rebuttal witness, was so grossly improper and prejudicial, reversal is required. [Approved for publication Dec. 14, 1995. Available online in NJ Full-Text Decisions.] 14-2-7344 State v. Reginald Jordan, App. Div. (22 pp. – includes dissent) Under the circumstances of the case, failure of trial court to proffer Hampton and Kociolek charges was harmless error. [Approved for publication Dec. 14, 1995. Available online in NJ Full- Text Decisions.] 14-2-7345 In the Matter of the Expungement of the Criminal Record of M.D.Z., App. Div. (8 pp.) Since the statutory policy of expunging records connected with criminal charges or convictions does not extend to non-criminal matters such as domestic violence proceedings or matrimonial actions, denial of petitioner’s request to expunge his domestic violence convictions was proper. [Approved for publication Dec. 14, 1995. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES COMMERCE — FRANCHISES 08-7-7346 Sunil Sethi v. The Southland Ins. Corp., etc., U.S. Dist. Ct. (14 pp.) Since defendant may be able to show good cause for terminating plaintiff’s 7-Eleven franchise if the fact-finder believes its allegations, and since plaintiff has not shown that there is any harm he will suffer which cannot be adequately compensated with money damages, plaintiff’s request for a preliminary injunction is denied. GOVERNMENT — PRIVILEGE 21-7-7347 Howard Sterman, et al. v. Twp. of Teaneck, et al., U.S. Dist. Ct. (6 pp.) Since the Board of Adjustment is a quasi-judicial body, its members are protected from being deposed regarding their decision-making by a “mental process privilege,” and plaintiffs’ motion to compel depositions of the Board members who rejected their variance application is denied. INSURANCE 23-7-7348 Central Mutual Ins. Co. v. Dolores Battaglia, et al., U.S. Dist. Ct. (11 pp.) Since N.J. law holds that an intention to cause injury will be inferred as a matter of law when a foster custodial parent engages in a sexual activity with a child in his custody, and insurance policy issued to defendants specifically excludes coverage for intentionally caused injuries, insurer is granted declaration that it owes no duty of defense or indemnity to defendants on sexual abuse complaint of their former foster child. *** Additional Opinion Approved for Publication: 35-5-7322 Salt and Light Company, Inc. v. Mt. Holly Twp.

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