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Vol. 4, No. 228 — December 2, 1996 STATE COURT CASES CONSUMER PROTECTION — REAL ESTATE — TORTS 09-2-0666 Santangelo, et al. v. Abbate, App. Div. (6 pp.) “As is” clause in residential real estate contract does not bar suit based on fraudulent concealment of structural damage where plaintiff presented evidence that extensive cat urination and consequent rug shampooing had caused structural damage masked by the carpet and by extensive interior painting and caulking 18 months before the sale, notwithstanding noticeable pet odor in house during several pre- closing inspections. EVIDENCE — EXPERT WITNESS — ADVERSE INFERENCE CHARGE 19-2-0667 Cafferata, et al. v. Peyser, App. Div. (13 pp.) Videotape of defense medical expert witness deposed during trial pursuant to R. 4:14-9 could not, over defense objection, be introduced for any reason by plaintiff during the trial because there were no exceptional circumstances, and it was not reversible error for trial judge to refuse plaintiff’s request for an adverse inference charge for non-production of the witness. INSURANCE — VERBAL THRESHOLD — PRIOR INJURY 23-2-0668 Mustachio v. Epstein, et al., App. Div. (5 pp.) Plaintiff’s failure to explain by credible medical evidence why the muscle spasm noted in June 1995 and the small disc herniation noted in January 1996 were causally related to her first automobile accident in May 1994 and not her second accident permits the conclusion that plaintiff has failed to pierce the tort threshold required under N.J.S.A. 39:6a-8a; therefore summary judgment is appropriate. INSURANCE — DEBTOR/CREDITOR — LIQUIDATION 23-4-0669 In the Matter of the Liquidation of Integrity Insurance Company, Ch. Div. (17 pp.) The liquidator of an insolvent insurance company has the statutory authority to estimate the net present value of “incurred by not yet known or reported losses” and pending case reserves on behalf of future claimants as a class and to allow such contingent claims to participate in the final distribution of the insurer’s estate. The reinsurers and others will have the opportunity to contest whether a claim is subject to estimation, what the value of the claim is, and other issues that may arise. LABOR AND EMPLOYMENT — RETALIATORY DISCHARGE 25-2-0670 Chelly v. Knoll Pharmaceuticals, et al., App. Div. (16 pp.) Trial judge correctly concluded that employer had not violated a clear mandate of public policy by not immediately disclosing 11 instances of elevated liver enzyme readings during test of experimental drug by defendant-employer, because these results were not “serious” and “unexpected” within the meaning of F.D.A. regulations; plaintiff’s professional disagreement with corporate management is the product of a difference in medical judgment which is not sufficient to form a basis for a Pierce wrongful discharge cause of action. [Approved for publication, Dec. 2, 1996]. 25-2-0671 Dorish v. Firmenich-Chem Fleur, Inc., App. Div. (3 pp.) In action alleging wrongful discharge because plaintiff filed workers’ compensation claim and was handicapped, summary judgment in favor of employer is upheld because employee’s multiple hearsay and speculation do not meet his burden of producing evidence from which it can be inferred that it is more probable than not that the termination was unlawfully motivated. LANDLORD/TENANT — EQUITABLE REMEDIES 27-2-0672 Calderaro, et al. v. American Timber Company, App. Div. (15 pp.) Part performance of an oral lease cannot bind a party who has not only not signed the written lease, but has expressly refused to sign it and has never orally agreed to it. The Law Division’s equitable remedial power will be used to craft the terms of a reasonable rental value and payment. TAXATION — REAL PROPERTY 35-2-0673 Jepson Refrigeration Corp. v. City of Trenton, App. Div. (7 pp.) Where, after one adjournment, the taxpayer was late in obtaining and serving its appraisal report, that discovery infraction at the County Tax Board level cannot form the basis for the Tax Court’s dismissal of an appeal for lack of prosecution with its consequent loss of Tax Court jurisdiction. [Approved for publication Dec. 2, 1996]. CRIMINAL LAW AND PROCEDURE 14-2-0674 State v. Black, App. Div. (6 pp.) No double jeopardy violation for defendant to be sentenced on his guilty plea for the crime of absconding from parole while also receiving additional prison time for the same violation of parole since Parole Board’s purpose is remedial rather than punitive. [Decided and approved for publication Nov. 27, 1996]. 14-2-0675 State v. Bragg, App. Div. (12 pp.) Convictions overturned because the trial court 1) failed to instruct the jury that for the court to have jurisdiction, the kidnapping or criminal restraint either had to occur in New Jersey or constitute an attempt in New Jersey to cause serious bodily injury, and 2) admitted other crimes evidence without specifically stating the purposes for which it could be used, constituting plain error).[Approved for publication Dec. 2, 1996]. 14-2-0676 State v. Kennedy, App. Div. (4 pp.) A defendant who is only convicted of meter tampering or who only acknowledges tampering as part of a plea is not subject to restitution for theft of services unless he acknowledges on the record that the metered commodity had been obtained and the dollar amount thereof. [Approved for publication Dec. 2, 1996]. 14-2-0677 State v. Haley, App. Div. (9 pp.) Where pro se defendant timely asked for jury charge on the right not to testify, and where judge thereafter omitted the charge and neither the defendant nor his stand-by counsel alerted the judge to the charge’s absence, there is no basis for invoking the “invited error” doctrine, and the failure to include this charge is reversible error per se. Additional opinion approved for publication: 31-2-0658 Monheit v. Aaron Rottenberg, et al., [Decided and approved for publication November 27, 1996]. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … After four months, investigators are not sure what brought down TWA Flight 800. But in Gerald Baker’s view, that’s no cause to hold back on litigation. He has filed a wrongful death suit on behalf of the husband of one of the victims. See page 1 of the Dec. 2 Law Journal. Volume 4, No. 229 — December 3, 1996 CIVIL PROCEDURE – TORTS 07-2-0678 Cummings v. Bahr, App. Div. (17 pp.) (1) Where plaintiff offered a new theory as to liability premised on a new characterization of plaintiff’s status as that of invitee onto plaintiff’s property rather than licensee, and the information establishing this new theory was previously available to plaintiff, the trial judge correctly applied R. 4:49-2 in denying plaintiff’s second motion for reconsideration; (2) the appropriate standard for review of a denial of a motion for reconsideration is the federal “abuse of discretion” standard; (3) in determining whether a party has “successfully asserted” a prior contrary position and, therefore, is barred under the doctrine of judicial estoppel from asserting a new position, if the prior position is has helped to from the basis of a judicial determination it has been successfully asserted and the doctrine applies. [Approved for publication Dec.3, 1996] INSURANCE – AUTOMOBILES 23-2-0679 Washington v. Market Transition Authority, App. Div. (8 pp.) Where the insurer pays for later medical expenses but not for earlier expenses, the statute of limitations prescribed by N.J.S.A. 39:6A-13.1 for the commencement of an action against an automobile insurer for payment of personal injury protection benefits begins to run from the time of the last payment actually made rather than when the earlier uncompensated expense occurred. [Approved for publication Dec. 3, 1996.] INSURANCE – MISREPRESENTATION 23-2-0680 Menichelli v. Massachusetts General Life Insurance Company, App. Div. (8 pp.) Decedent’s knowingly false representation on his life insurance policy application that he was not a smoker constitutes equitable fraud and voided the policy within two years of its issuance. WORKERS COMPENSATION 39-2-0681 Paylor v. County of Hudson, App. Div. (20 pp.) Where the trauma to petitioner’s heart was undisputed, the trial judge was within in his discretion to believe petitioner’s expert that her cardiomyopathy was caused by the trauma rather than by viral or genetic causes, as testified to by respondent’s expert, and there is no cause to overturn the compensation judge’s decision; (2) although a party’s failure to supply its adversary with an expert’s CV severely hampers the adversary’s ability to cross examine the expert, the absence of the CV of petitioner’s expert here in no way influenced respondent’s decision not to cross examine him on his qualifications, and on appeal respondent cannot dispute the ability of the doctor to testify. PUBLIC EMPLOYEES 33-2-0682 In the Matter of Valese, App. Div. (6 pp.) The final determination of the Merit System Board reducing the disciplinary sanction imposed on the police officer to a six-month suspension, instead of removal, based on three separate incidents involving inappropriate and abusive use of language was appropriate. TORTS – DEFAMATION – IMMUNITY 36-2-0683 Neuman v. Shebell, App. Div. (4 pp.) The alleged defamatory statements against plaintiff, made by the city attorney during a motion in an action brought an indian tribe in which plaintiff is the asserted leader, were made in the course of a judicial proceeding and, therefore, are absolutely privileged; plaintiff’s claim that the statements violate R.P.C. 3.4(e) does not give rise to an independent cause of action, and the appropriate remedy for that claim is through the disciplinary process. NEGLIGENCE – TORT CLAIMS ACT 31-2-0684 Fahey v. Levoch, App. Div. (7 pp.) Because there are genuine issues of material fact as to whether the township owned or controlled the property over which foliage had grown, causing the alleged visibility impediment which resulted in plaintiff’s accident, whether a dangerous condition existed on the property, and whether the discretionary immunity under N.J.S.A. 59:2-3 applies, the grant of summary judgment in favor of the township is reversed. LABOR AND EMPLOYMENT 25-2-0685 Lennon v. N.J. State Prison, Dept. of Corrections, App. Div. (2 pp.) The decision of the Merit System Board that appellant should be removed from his position as a senior correction officer because of insubordination in disobeying two direct orders to report to work is affirmed. LABOR AND EMPLOYMENT – UNEMPLOYMENT BENEFITS 25-2-0686 Canova v. Board of Review, App. Div. (3 pp.) The decision of the Board of Review, affirming the denial of petitioner’s claim for unemployment compensation benefits based on a finding that she was discharged from her position as a legal secretary for misconduct connected with her work (performing personal work on office time, unreasonable use of the telephone for personal business and habitual tardiness), is affirmed. 25-2-0687 Merunka v. Board of Review, App. Div. (3 pp.) The decision of the Board of Review, affirming a Decision of an Appeal Tribunal, that appellant was ineligible for unemployment benefits, in part, because she left work voluntarily without good cause, and that she must refund all benefits paid to her in error, is affirmed. 25-2-0688 Bradley v. Board of Review, App. Div. (4 pp.) Petitioner’s claim that she left her employment because her employer misrepresented the health benefits plan to her, even if true, does not amount to “good cause,” and the decision of the Board of Review, affirming the Appeal Tribunal finding that plaintiff is disqualified from receiving unemployment benefits, is affirmed. CRIMINAL LAW AND PROCEDURE 14-2-0689 State v. Mordan, App. Div. (4 pp.) The trial judge properly denied defendant’s motion for acquittal since the evidence overwhelmingly supported the factual basis for the jury to find that the State had prove the elements of attempted sexual assault beyond a reasonable doubt. 14-2-0690 State v. Jones, App. Div. (3 pp.) The trial judge’s decision denying defendant’s motion to withdraw his guilty plea to felony murder and his motion for post-conviction relief, finding that defendant entered the plea knowingly and voluntarily with a full understanding of his exposure to a 30 year parole disqualifier, and that entry of the plea to avoid possible exposure to the death penalty for knowing and purposeful murder did not render the plea coerced, is affirmed. 14-2-0691 State v. Wilson, App. Div. (5 pp.) Although defendant was entitled to inquire of the victim, a convicted criminal, as to any expectation of favorable treatment he might receive by the State in exchange for his testimony, defendant was not denied a fair trial since the victim of a crime always has a genuine motivation to testify against a defendant, and the jury was fully aware of the victim’s criminal history and that he was serving a sentence when he testified. CRIMINAL LAW AND PROCEDURE – SEARCH AND SEIZURE 14-2-0692 State v. Sanders, App. Div. (4 pp.) Where the police received an anonymous tip that there was a man with a gun at a rooming house, and the first officer patted-down defendant on the front porch, and the second officer, upon noticing that the front door to the house was open, entered and chased a suspect, and upon seeing another open door entered that room, which turned out to be defendant’s, and there he saw narcotics in plain few, and defendant was then arrested and searched, which yielded a small quantity of cocaine, the trial judge’s finding that the entry into the house and room were justified by the public safety exception, and that the plain view of the narcotics provided probable cause for the search, is affirmed. Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … In a stunning bench ruling that could start to crack West Publishing Co.’s pre-eminence in legal publishing, a federal judge has ruled that West’s industry-standard page numbering sytem is just a series of accidental facts, not intellectual property subject to copyright. See page 1 of the Dec. 2 Law Journal.

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