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Vol. 4 No. 112 – JUNE 12, 1996 STATE COURT CASES DEBTOR/CREDITOR 15-2-9198 Kay Wholesale Drug Co. Inc. v. Robert E. Sauerborn, etc., et al., App. Div. (8 pp.) Plaintiff was certainly entitled to at least partial summary judgment on its collection action on a book account with defendant, however, since the plaintiff failed to respond to defendant’s interrogatories, the award is vacated and the matter remanded for further proceedings limited to the issue of any credits defendant might be entitled to. DEBTOR/CREDITOR — FORECLOSURE 15-2-9199 Citibank, N.A. v. Syed Irshad Raza, et al., App. Div. (5 pp.) Bank’s failure to credit mortgagors’ account with certain payments is irrelevant to mortgagors’ fundamental default, as are mortgagors’ arguments that bank should be held to the terms of an expired forbearance agreement; therefore, judge properly granted bank’s motion to strike mortgagors’ answer. FAMILY LAW 20-2-9200 Patricia M. Murphy v. Michael A. Murphy, App. Div. (3 pp.) Trial court did not abuse its discretion in refusing to confirm the reduction in child support verbally agreed to by the parties at a time when defendant was unemployed, and order fixing arrears is affirmed. INSURANCE — P.I.P. — BUSES 23-2-9201 Olga Rodriguez v. N.J. Transit Bus Operations Inc., etc., et al., App. Div. (5 pp.) Since the provision of no-fault medical expense benefits to injured passengers was intended only to apply to private commercial bus operations, not a public entity such as defendant NJT, summary judgment dismissing NJT passenger’s suit for PIP benefits is affirmed. 23-2-9202 Stephanie Shuster v. State Farm Ins. Co., App. Div. (5 pp.) Suit for PIP benefits against insurer was properly dismissed on the ground that it was not filed within the time permitted by statute, and insured’s contention that the insurer’s conduct in handling the PIP claim excuses plaintiff’s failure to timely file is without merit, since the insurer simply sought the information to which it was entitled under the policy terms and did not act wrongfully, or in a misleading or dilatory way. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-1-9203 Robert Green v. Selective Ins. Co. of Am., Supreme Ct. (25 pp.) (1) Where insurer knew of plaintiff’s extensive injuries because of its involvement in PIP suit, it was on notice of the pending tort case, and court should not have dismissed plaintiff’s UIM claim as untimely when plaintiff gave notice to the insurer prior to tort settlement, but seven years after the accident. (2) The court holds that the six-year statute of limitations on uninsured motorists/underinsured motorists claims should run from the accident date, not the date the insurance contract is breached, and this holding applies prospectively, however, the benefit of this prospective ruling shall apply only to other claims that have not expired within six months of the date of this decision. [This is a companion case to 23-1-9204 below.] 23-1-9204 Martin S. Zirger v. Gen. Accident Ins. Co., Supreme Ct. (26 pp.) Insurer waived its right to arbitrate the amount to which its insured was entitled on a UIM claim when the insurer permitted its insured to proceed to a jury verdict on damages against the underinsured motorist without intervening and participating in the litigation; this holding applies prospectively to cases in which the third-party action is tried after the effective date of this decision or the UM/UIM carrier is afforded notice and an adequate opportunity to intervene. [This is a companion case to 23-1-9203 above.] INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-9205 N.J.A.F.I.U.A., etc. v. Kathleen Lyon, et al., App. Div. (5 pp.) Judge erred in ruling defendant ineligible for UM coverage because she was driving a horse and carriage and was neither a passenger nor operator of a motor vehicle, nor a pedestrian, at the time of the accident with an uninsured truck, since defendant’s status was irrelevant once it had been established that she was a named insured in an automobile policy and that a proximate cause of her injuries was the operation of an uninsured motor vehicle that was neither owned nor provided for the regular use of the defendant or any resident of her household. MUNICIPAL LAW 30-2-9206 Harry Pascoe v. Twp. of Jefferson, et al., App. Div. (13 pp.) Judge correctly found that municipality’s refusal to renew plaintiff’s junkyard license was an appropriate enforcement response to plaintiff’s “slack and sloppy” operation of the yard and to his unlawful expansion, and that the refusal was not a violation of plaintiff’s civil rights. TORTS — CIVIL RIGHTS 36-2-9207 Robert E. Brennan v. Richard W. Barry, etc., et al., App. Div. (8 pp.) The panel affirms the lower court’s dismissal of plaintiff’s case — alleging various torts and civil rights violations for defendants’ alleged public disclosure of confidential information — and the judge did not err in failing to apply res judicata to another trial judge’s ruling that there had been a “leak of confidential information,” since there was no showing that this finding was essential to the judgment in the other matter, and since opinions of a court of equivalent rank are not binding. CRIMINAL LAW AND PROCEDURE — P.T.I. 14-2-9208 State v. Kevin Fitzsimmons, App. Div. (11pp.) Although the defendant was charged with a second-degree crime, and therefore “compelling reasons” must be established to overcome the presumption against PTI, the facts of this case — including that defendant had no prior record, that all of the offenses were motivated by his long-term severe drug addiction, and that his rehabilitative efforts have been “Herculean” — militate in favor of defendant’s entry into PTI. [Approved for publication Jun. 12, 1996.]

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