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Vol. 4 No. 119 – JUNE 21, 1996 STATE COURT CASES CORPORATIONS 12-2-9310 Anthony Petruzzi v. Joseph T. Tallone, App. Div. (2 pp.) The court affirms judgment entered in favor of defendant on his counterclaim against plaintiff — alleging misappropriation of corporate assets, breach of fiduciary duty, and breach of shareholders agreement — and rejects plaintiff s argument that the business judgment rule governs the evaluation of his behavior as a corporate officer since rights and obligations owed by officers and stockholders of a closely held corporation to other officers and stockholders are more analogous to rights and obligations owed to partners in a partnership. EVIDENCE — COMPUTER PRINTOUTS — DEBTOR/CREDITOR 19-2-9311 Hahnemann Univ. Hosp. v. Sonya Dudnick, App. Div. (11 pp.) Reviewing the law regarding admission into evidence of computer printouts, the court holds that the trial judge did not err by admitting into evidence hospital s computer printout records regarding defendant s account and that the hospital established the reasonableness and necessity of its charges, and affirms the judgment in hospital s favor. [Approved for publication Jun. 21, 1996.] FAMILY LAW 20-2-9312 Joan B. Mularz v. Raymond W. Mularz, App. Div. (5 pp.) While awards regarding counsel fees and permanent alimony are affirmed, as is the court s rejection of husband s contention that he is entitled to equitable distribution of plaintiff s Social Security entitlement, the court remands on the issue of plaintiff s interest in defendant s pension, since the immediate payout ordered cannot be accomplished without the liquidation of most of the parties’ assets, and the judge should have determined the feasibility of securing plaintiff s interest by other measures. 20-2-9313 Cecelia T. O Brien v. John A. O Brien, App. Div. (7 pp.) (1) Trial court erred when it found that defendant did not commit fraud by misrepresenting his actual income for certain years, and by using N.J.S.A. 2A:17-56.23a to shield him from retroactive modification of support in light of his misrepresentation. (2) Trial court also erred in finding it fair to order plaintiff to pay defendant the difference between the amount defendant actually paid for medical insurance and the amount he would have paid under plaintiff s policy had she complied with a prior court order. 20-2-9314 Marion Jean Usdan v. Martin James Beatty, App. Div. (12 pp. — includes concurring opinion) In allocating the costs of an expensive college education for the parties academically talented daughter, the court erred in considering only the current earned incomes of both parents, and failed to consider other factors required by law; therefore, the matter is remanded. INSURANCE — AGENTS 23-2-9315 In the Matter of the Termination of M.A. Aziz Agency by Atl. Mut. Ins. Co., etc., App. Div. (11 pp.) Based on the insurance commissioner s examination of the insurer s file of applications submitted by the agent, which contained sufficient deficiencies and failed to conform with insurer s underwriting guidelines, commissioner s conclusion that insurer had properly terminated its agency agreement with agent is affirmed, however, that part of the order permitting insurer to retain or assign agent s book of business is reversed. INSURANCE — DUTY TO DEFEND 23-2-9316 Primo s Italian Restaurant Inc., etc. v. Michael A. Peters v. Allstate Ins. Co., et al., App. Div. (7 pp.) The trial court properly held that homeowner s insurance policy issued to defendant accused of arson did not provide coverage to him in connection with the arson claims asserted by restaurant plaintiff for property damage sustained as a result of fire set by defendant. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-9317 Olivia Sims v. N.J.A.F.I.U.A., etc., App. Div. (7 pp.) Insurer was properly granted summary judgment on UIM coverage claim for failure to give proper notice to the insurer of settlement. INSURANCE — VERBAL THRESHOLD 23-2-9318 Gaspar A. Viola v. Robin M. Thomas, et al., App. Div. (12 pp.) Judge correctly held that plaintiff s doctor s reports of elevations in muscle tensions had no objective meaning and that plaintiff s subjective complaints of headaches and back pain were not corroborated by objective evidence to surmount the verbal threshold. Judge also correctly rejected plaintiff s claim that he should not be subject to the verbal threshold because he was injured during the course of his employment. LABOR/EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-9319 Franklin C. Bobbe v. Bd. of Review, et al., App. Div. (3 pp.) Given bartender s uncontroverted assertion that he frequently did not have an opportunity to eat meals, despite the fact that he was docked a half hour s pay to consume such meals, it is clear that he had a compelling reason to leave his employment more than just mere dissatisfaction with the job, and he was improperly denied unemployment compensation benefits. NEGLIGENCE — SLIP AND FALL — SNOW REMOVAL IMMUNITY 31-2-9320 Susie M. Edwards, et al. v. Cy. of Mercer, et al., App. Div. (9 pp.) (1) Judge incorrectly held that slip-and-fall case had been settled, since the initial offer was no longer on the table for plaintiff to accept once plaintiff had made a counteroffer, and (2) county should have been granted summary judgment based on snow removal immunity granted to public entities. PHYSICIAN/PATIENT 29-2-9321 Ruth Ginsberg, etc. v. St. Michael s Hosp. , et al., App. Div. (18 pp.) The judge did not err in giving a Scafidi charge, but error did exist in (1) his requiring the jury to answer interrogatories relevant to both but for causation and substantial factor causation in the same case, (2) failing to tell the jury the difference between the two concepts, (3) permitting improper evidence on the substantial factor aspect of the causation charge, and (4) prohibiting doctor from explaining fully the opinions he formed during the course of treating the patient as to the cause of the conditions that resulted in the patient’s death. [Approved for publication Jun. 21, 1996.] WORKERS COMPENSATION 39-2-9322 Terrence Abraham v. Matco Transp. Inc., App. Div. (5 pp.) Since co-employees were both at their place of employment on a Sunday because they had been asked to come to work, and since the fact that the usual transportation patterns of the employees would be anticipated by the employer to require adjustments, employee s injuries sustained in employee parking lot while waiting to give co-employee a ride home were compensable and claim petition should not have been dismissed. CRIMINAL LAW AND PROCEDURE — DATE RAPE 14-2-9323 State v. Rodney F. Lyles, App. Div. (17 pp.) While neither the trial court s handling of the fresh- complaint evidence nor its failure to have held a competency hearing for defendant constituted plain error, defendant s conduct, while opprobrious and certainly constituting the heinous second-degree crime of sexual assault, cannot also be construed as constituting the independent crimes of first-degree kidnaping by unlawful confinement, and first-degree sexual assault, and those convictions are reversed because of insufficiency of evidence. [Approved for publication Jun. 21, 1996.] CRIMINAL LAW AND PROCEDURE — ROADBLOCKS 14-2-9324 State v. Andrea Bundick, et al., App. Div. (6 pp.) Since state successfully demonstrated a roadblock’s validity, judge erred in suppressing defendants drug evidence found when their car was stopped in the roadblock. FEDERAL COURT CASES BANKRUPTCY — DISCHARGEABILITY OF CLAIM FOR DEFECTS IN A HOUSE 42-6-9325 In re: Donald O. Reynolds; Victor M. Starr, et al. v. Donald O. Reynolds, U.S. Bankruptcy Ct. (10 pp.) Since plaintiffs in this adversary proceeding have failed to prove that the debtors committed fraud by concealing alleged defects in a house sold by the debtors, plaintiffs have failed to show that their claim against debtor for those defects is nondischargeable. [For publication.] CONTRACTS — USURY 11-7-9326 Paul S. Dopp v. Bob Yari, U.S. Dist. Ct. (23 pp.) Contract for the financing of litigation in exchange for a division of the final proceeds is an enforceable contract and does not constitute a usurious loan, since the arrangement was entered into in good faith without intent to evade the usury laws, and collection of the entire interest was at risk and depended upon the contingency that plaintiff prevail at trial. [For publication.] PRODUCT LIABILITY — EXPERTS 32-7-9327 Evetta Dennis, et al. v. Pertec Computer Corp., et al., U.S. Dist. Ct. (13 pp.) In a case where data entry operators allege various upper extremity problems allegedly due to design defects in defendants machines and defendants’ failure to warn of the potential for such problems, the court grants defendants motion to preclude the testimony of three of plaintiffs experts, noting (1) that although the court embraces novel scientific opinions, those opinions must be based on scientific methods and procedures rather than on a subjective belief or unsupported speculation, and the first expert s unrecorded mental methodology here amounts to nothing more than unsupported speculation, (2) that the second expert s opinion has not gained general acceptance, and (3) the third expert — on warnings — cannot prevail since his entire testimony is based upon the foundation laid by the two discredited experts. [For publication.] PRODUCT LIABILITY — REMOVAL AND REMAND 32-7-9328 Caridad Miniet, et al. v. Automated Packaging Sys. Inc., et al., U.S. Dist. Ct. (14 pp.) Since both the 30-day removal requirement imposed by 28 U.S.C. 1446 and the requirement that all defendants join in the removal petition are fundamental, and since defendant has not carried its burden of showing compliance with these requirements, case is remanded to state court. CRIMINAL LAW/PROCEDURE –SENTENCING 14-8-9329 U.S.A. v. Francia Tabares, etc., Third Cir. (11 pp.) Defendant s sentence violated due process because the district court relied upon the erroneous assumption that she had been previously convicted of a drug crime, whereas the record shows only that she had been arrested before with no prior convictions, and matter is remanded for resentencing.

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