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Vol. 4, No. 148 – August 2, 1996 STATE COURT CASES CIVIL PROCEDURE — REINSTATING COMPLAINTS — ENVIRONMENT 07-2-9768 Mitchell Envtl. Inc. v. Bergen County Utils. Auth., et al., App. Div. (11 pp.) The trial court improperly exercised its discretion by denying plaintiff s motion to vacate a judgment of dismissal since, although the original dismissal was without prejudice for failure to appear at a mandatory case management conference, the failure to reinstate was predicated on disputed post-conference conduct which the plaintiff did not have the opportunity to contest before the trial judge. CIVIL PROCEDURE — REINSTATING COMPLAINTS — NEGLIGENCE 07-2-9769 Henry Batista v. Rafael Valera, et al., App. Div. (4 pp.) In light of plaintiff s voluntary dismissal of the complaint — entered by the judge when plaintiff failed to appear for trial even though his counsel appeared — there is no basis to credit plaintiff s assertion with respect to alleged lack of trial-date notice; since counsel was aware of the dismissal , plaintiff should have immediately sought reinstatement, and his motion filed more than one year after dismissal without a reason for the late filing is too late. CIVIL PROCEDURE — VACATING DEFAULT 07-2-9770 Calhoun & Assocs. v. Barry Tobias, App. Div. (3 pp.) In a dispute over legal fees, judge properly denied defendant s motions to vacate default and for reconsideration, since the defendant s sole argument was that he did not have notice of a proof hearing; there was no requirement that he be notified since he had not entered an appearance, and defendant s contention that an acknowledgment of service by his attorney at that time be considered the equivalent of an appearance verges on the frivolous. FAMILY LAW 20-2-9771 Jeanne Melmed v. Victor Melmed, App. Div. (4 pp.) (1) Based upon defendant s unorthodox business accounting methods, the judge correctly imputed income based upon the parties lifestyle, and the alimony and support awards are wholly justified. (2) Based upon defendant s failure to disclose a judgment against him which made it impossible for him to convey the marital residence to plaintiff free and clear of liens, and based upon defendant s misrepresentation of his right to certain other real property, the value of what plaintiff was to have received in the separation agreement was substantially compromised, and the judge correctly ruled that the agreement was unenforceable. INSURANCE — VERBAL THRESHOLD 23-2-9772 Ethan Nistok v. Ernest S. Serghis, et al., App. Div. (3 pp.) Plaintiff s case was properly dismissed for failure to cross the verbal threshold, since his doctor s report, although mirroring the statute, was insufficient to create a material dispute of fact by credible, objective evidence. LANDLORD/TENANT 27-2-9773 C & H Realties Inc. v. Patricia A. Ryan, et al., App. Div. (3 pp.) Trial court correctly concluded, after having heard the witnesses and examined the pertinent documents, that the two principals of tenant company were individually liable to plaintiff landlord for breach of lease damages. LAND USE 26-2-9774 Nick Ivanow v. Bd. of Adjustment of the Borough of Hawthorne, App. Div. (5 pp.) The trial judge erred in concluding that the municipal board s action — in denying plaintiff s variance application for an addition on his nonconforming two-family house — was arbitrary and capricious, and the judge s decision is reversed, and the board s denial reinstated. NEGLIGENCE 31-2-9775 Gerald E. McTamney v. Hamilton Twp. Bd. of Fire Comm’rs, etc., et al., App. Div. (10 pp.) In a case involving an automobile accident on ice — which plaintiff alleged was caused by fire department’s negligence — the evidence at trial was sharply disputed and the jury, as the finder of fact, was free to accept the defendants testimony that they did not flush a hydrant and that any water left in the hoses after their activity drained downhill and did not spill and pond on the road. TORTS — ASSAULT 36-2-9776 Stanley J. Bier v. Mun. Square Assocs., App. Div. (5 pp.) Jury verdict finding that maintenance worker was not acting either in self- defense or within the scope of his employment when he broke plaintiff s nose — for parking in an area despite maintenance worker’s objection — is not against the weight of the evidence and motion for new trial was properly denied. Now on Counsel Connect Additional Opinion Approved for Publication: 17-2- 9631 U.S. Bronze Powders Inc. v. Commerce & Indus. Ins. Co., et al. [Decided July 18, 1996 and approved for publication July 25, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … As the sole beneficiary of her mother’s estate, Dena Hochberg Crane should have received her inheritance within days of her mother’s death. But resistance from the estate’s executors has dragged out the process. The case is currently on trial in Monmouth County Superior Court, four years after Crane’s mother died. See page 1 of the Aug. 5 Law Journal.

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