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Vol. 4, No. 158 – August 15, 1996 STATE COURT CASES CIVIL PROCEDURE — VACATING DISMISSAL 07-2-9864 Matoka Boone v. George Williams, et al., App. Div. (4 pp.) Where case was dismissed for plaintiff s failure to answer interrogatories and remained dormant for 15 months before plaintiff moved to vacate a dismissal order, the inordinate lapse of time is fatal to plaintiff s appeal, and the excuse that the attorney handling the matter had departed from the firm is insufficient to constitute extraordinary circumstances or good cause authorizing a relaxation of discovery rules. CONTRACTS — IMPLIED-IN-FACT 11-2-9865 Jersey City Sewerage Auth. v. Kearny Mun. Util. Auth., et al., App. Div. (10 pp.) Trial judge correctly entered judgment in favor of plaintiff on its suit for costs incurred in constructing a pipeline to transport sewage, since, although the parties had not signed a contract agreeing on the cost allocation of the construction, the record reflects that the project was a joint venture and there was no question that there was an implied-in-fact agreement to share the costs. DEBTOR/CREDITOR — FORECLOSURE 15-2-9866 Vincent Occhiolini, et al. v. Nathan Perlmutter, etc., et al., App. Div. (6 pp.) Since defendant failed to raise any evidence of intentional misrepresentation on the plaintiffs’ part, he failed to make out a prima facie case of fraud and misrepresentation, and the trial judge correctly granted summary judgment to the plaintiffs in this foreclosure action. INSURANCE — P.I.P. 23-2-9867 Tito Cobo, et al. v. Market Transition Facility, etc.; Lydia Rivera, et al. v. N.J.A.F.I.U.A., etc., App. Div. (26 pp.) The trial judge misapplied the law to the facts of this case, and erroneously concluded, based on an inadequate record, that the physical therapy provider-plaintiffs fees were reasonable merely because they were either modality-based or consistent with the PIP fee schedules. [Approved for publication Aug. 15, 1996.] NEGLIGENCE — TORT CLAIM ACT — VOLUNTEERS 31-2-9868 C.P.,an infant, etc., et al. v. Twp. of Piscataway Bd. of Educ., et al., App. Div. (20 pp.) In a case where minor plaintiff was sexually molested in a swimming pool by a volunteer instructor in a school board-sponsored swimming program, (1) judge properly dismissed tort claims against school board for plaintiff s failure to satisfy the statutory threshold set forth in N.J.S.A. 59:9-2d, since the judge found that plaintiff s emotional distress claims did not establish that she had sustained a permanent loss of a bodily function, however, since plaintiff is a minor, the dismissal shall be without prejudice; and (2) the civil rights claims against school board also were properly dismissed, since no policy or “deliberate indifference” have been shown, however, (3) that part of the judge’s ruling allowing plaintiff to execute on individual defendant/volunteer’s IRA to satisfy the judgment against him is reversed, since the asset is exempt from the creditors’ claim under N.J.S.A 25:2-1. [Approved for publication Aug. 15, 1996.] A Daily Reporter of New Jersey Court Decisions NEXT WEEK IN THE … In what may be a pulling back on its seminal ruling in Jacob v. Norris, McLaughlin & Marcus, the state Supreme Court says that retainer agreements can require clients to give reasonable notice before firing a lawyer — and to pay liquidated damages if they don’t. See page 1 of Monday’s Law Journal.

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