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Vol. 4 No. 107 – JUNE 5, 1996 STATE COURT CASES ARBITRATION — DE NOVO TRIALS 03-2-9116 Envtl. Professionals Inc. v. Anthony Fasciano, et al., App. Div. (4 pp.) Defendant made a tactical decision not to participate in arbitration and consequently was obliged to make a timely application for a trial de novo, therefore, since it has not shown extraordinary circumstances for its untimely request, the judge correctly denied the de novo application, and the fact that plaintiffs were aware of defendant’s intention to seek a de novo trial is irrelevant. CIVIL PROCEDURE 07-2-9117 Video and Appliances Unlimited Inc. v. Sony Corp. of Am., et al., App. Div. (7 pp.) Since sanctions could have been imposed as an alternative remedy, the trial judge abused his discretion by dismissing plaintiff’s complaint for plaintiff’s failure to appear on scheduled trial date, where plaintiff’s counsel had previously, albeit unsuccessfully, attempted to have the trial date adjourned due to a federal court-ordered audit of plaintiff’s business which plaintiff’s principals were ordered to attend. 07-2-9118 Pub. Serv. Mut. Ins. Co. v. Cebex Inc., et al., App. Div. (5 pp.) The trial court erred in denying corporate defendant’s application to set aside default judgment against it without holding a hearing on the issue of whether the recipient of the original summons had authority to accept service on behalf of the corporation. CONTRACTS 11-2-9119 Ed Cheval v. Camille Whitehead; Julianne Whitehead, et al. v. Ed Cheval, App. Div. (22 pp.) Verdict is affirmed in favor of plaintiff building contractor in a case concerning a bakery construction contract, because (1) the judge did not abuse his discretion by excluding contractor’s prior convictions, which occurred 15 years prior to trial and did not relate directly to his veracity, and (2) contractor presented sufficient evidence to show that the defendant mother was a true party and principal to the contract for the bakery’s construction as a venture for her two daughters. DEBTOR/CREDITOR — CORPORATIONS — USURY 15-2-9120 Norman Goldstein Assocs. Inc., et al. v. Lou Scharf Inc., et al., App. Div. (8 pp.) The trial judge correctly found that the use of the corporate debtor in this transaction was simply an effort by lender to mask a usurious loan to the individual debtors, therefore judgment in favor of individual debtors is affirmed, however, since usury is not available as a defense to a corporate defendant, judgment in favor of corporation is reversed. DEBTOR/ CREDITOR — PREFERENCES 12-2-9121 In re: Van Foo Inc., et al., App. Div. (4 pp.) The trial judge correctly concluded that two payments to one creditor constituted a preference prohibited by N.J.S.A. 14A:14-14, and his order that the total amount should be returned to the receiver is not an abuse of discretion and is affirmed. FAMILY LAW 20-2-9122 Rose Sarhan v. Mohamed Beshr Hassan Sarhan, etc., App. Div. (10 pp.) The record supports the judge’s determination that defendant intended his son’s move to Egypt to be permanent, despite his representations to the court that the move was temporary, and the judge’s order that son be returned to this country, holding defendant in contempt and ordering a warrant for his arrest are affirmed. 20-2-9123 Walter K. Booker v. Teresa Clarke Booke, App. Div. (5 pp.) Since the various equitable distribution decisions of the trial judge were discretionary and there was no abuse of that discretion, the order setting forth the manner of distribution and allocation of assets is affirmed. 20-2-9124 Kathy Cripps v. Charles Cripps, App. Div. (7 pp.) Since the parties’ divorce agreement was ambiguous with respect to the parties’ intentions as to whether their agreement to share 50 percent of the household expenses would be contingent on their continued co-residency in the household, a plenary hearing was required, and the judge should not have granted ex-husband’s application to hold wife to the sharing agreement after she moved out without such a hearing. FAMILY LAW — BAIL 20-2-9125 John Pirozzi v. County of Hudson, App. Div. (16 pp.) In a case where ex-husband defaulted in his support payments, was arrested, and had a friend post his bail, the county was obligated to return bail money to the friend, since the funds were only subject to forfeiture in the event that the ex-husband failed to appear in court, and, when he did appear, the money was subject to release; this decision is not changed by the fact that the bail monies were subject to turnover to the ex-wife toward support arrears had they been posted by the ex-husband himself. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9126 Mrs. J.L. v. Mr. J.L., App. Div. (4 pp.) Since plaintiff’s credible testimony graphically describes a knowing or purposeful act — defendant’s grabbing of her breasts — which was timely corroborated by the investigating police officer, the record supports proof of an act of domestic violence, even though there was no specific testimony taken from defendant regarding his intent to assault plaintiff. INSURANCE — VERBAL THRESHOLD 23-2-9127 Frank Ferrara, et al. v. Eleanore H. Palamara, et al., App. Div. (3 pp.) Although plaintiff’s X-rays constituted objective medical evidence of the narrowing of his spinal disc spaces, there was no such evidence of the nature of his alleged preexisting condition, or of any aggravation of that condition due to the accident, and his doctor’s conclusions in that regard were based solely on his subjective statements; therefore, summary judgment was properly granted dismissing the case for failure to meet the verbal threshold. LABOR AND EMPLOYMENT 25-2-9128 Ernest Terry v. Consol. Rail Corp., et al., App. Div. (18 pp.) In a case where plaintiff prevailed in his Federal Employers’ Liability Act case — alleging injury caused by unreasonable exposure to fumes and airborne particles during his employment — defendants’ challenges on appeal are without merit, however, since there was no evidence to support the apportionment of damages based on plaintiff’s smoking, the matter is remanded for entry of an amended judgment for the full amount of damages awarded by the jury. LANDLORD/TENANT 27-2-9129 Star Enter., etc. v. Joseph Tirrito, etc., et al., App. Div. (6 pp.) The submission of a bona fide lease offer by a third party was the factual predicate of landlord’s claim that tenant breached its commercial lease when it failed to match the offer, and the record supports judge’s finding that the landlord failed to carry his burden to show that third party lease offer was bona fide, and not just a plan to obtain a rent increase from current tenant who had to match the offer or give up lease, and therefore tenant was not in breach of lease, and judge correctly ordered enforcement of tenant’s properly exercised purchase option. LAND USE 26-2-9130 Russell Swanson, et al. v. Planning Bd. of the Twp. of Hopewell, et al., App. Div. (11 pp.) Judge properly concluded that developer’s payment to municipality for sewer plant — on condition that certain property within the expanded sewer service area was rezoned — did not, under the facts of the case, constitute an “illegal exaction” but, instead, was a fair and reasonable “reconciliation of the needs of the Township and the developer.” NEGLIGENCE 31-2-9131 Jo Joy, et al. v. Harrah’s Marina Hotel and Casino, App. Div. (7 pp.) Trial was fairly conducted and jury could reasonably have concluded that plaintiff proved that decorative lambrequin hanging over defendant’s theater stairway was a hazardous condition requiring defendant to either warn patrons or place handrail at a greater distance so patrons could avoid contact, and verdict in plaintiff’s favor is affirmed. PARENT/CHILD 28-2-9132 In the Matter of the Guardianship of L.A.M., A Minor, App. Div. (3 pp.) Although parents genuinely love their child, love is not enough, and judge correctly found that termination of parental rights was in the best interest of the child. PHYSICIAN/PATIENT 29-2-9133 Pete Robbins, etc, v. Freehold Area Hospital, et al., App. Div. (39 pp.) Where plaintiff’s sole theory was that doctors had tested 15-year-old decedent’s blood for ammonia, found elevated levels and did not react appropriately, but where all of the hospital, laboratory and office records belied plaintiff’s claim, and showed that the boy had never even been tested for ammonia, dismissal of the malpractice case was proper.

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