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Vol. 4, No. 227 — November 27, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-0649 Williams v. Smith; Leinbach v. Seybolt, et al., App. Div. (9 pp.) In a controversy regarding the sharing of the negligence case contingent fee between plaintiffs’ former and successor attorneys, and ensuing legal malpractice counterclaims brought against former attorney by plaintiffs and the successor attorney, trial judge erred in denying former attorney’s motion for an order striking specific interrogatories served upon him by the successor attorney in furtherance of the malpractice claim. FAMILY LAW 20-2-0650 Williams v. Williams, App. Div. (3 pp.) Court erred in authorizing wife’s attorney to execute on husband’s behalf any documents necessary to carry out the equitable distribution aspects of the divorce judgment. 20-2-0651 Graziani v. Graziani, App. Div. (8 pp.) Judge did not abuse his discretion in denying defendant’s motion to reduce child support where judge was not satisfied that defendant had expended all good faith efforts to secure gainful employment at a level closer to his historical earning capacity, nor did judge err in holding in abeyance plaintiff’s motion seeking defendant’s contribution to daughter’s college expenses until resolution of criminal complaint brought against defendant by the daughter. INSURANCE — ADVERTISEMENTS 23-2-0652 Karpinski, etc. v. Automated Ins. Concepts Agency, Inc., et al., App. Div. (2 pp.) Insurance commissioner correctly concluded that term life insurance advertisement placed by appellants had the capacity to mislead the average consumer because it did not prominantly display the disclaimer. INSURANCE — UNDERINSURED MOTORIST COVERAGE 23-2-0653 Breitenbach v. Motor Club of America Ins. Co., App. Div. (10 pp.) Motion judge erred in granting summary judgment to insurer on the grounds that plaintiff’s execution of a release with a tortfeasor during the thirty-day period while awaiting carrier’s decision on the settlement constituted a per se bar to UIM coverage. [Approved for publication Nov. 27, 1996.] LAND USE 26-2-0654 40-42 Brunswick Ptshp., etc. v. Twp. of East Brunswick, et al., App. Div. (13 pp.) Township’s lien against commercial condominium owner — for penalties imposed as a result of disputed impermissible use of the basement area — is fatally defective since there was never any notice to the owner that by seeking a rational resolution to the problem through municipal and state proceedings, it was subjecting itself to a continuing fine. Owner’s affirmative suit should not have been dismissed, and is remanded for a resolution of the underlying problem of the basement use. MUNICIPAL LAW — CONSTRUCTION OFFICIALS — TENURE 30-2-0655 Cutler v. Borough of Westwood, et al., App. Div. (12 pp.) Law Division judge correctly interpreted N.J.S.A. 52:27D-126 and denied former municipal construction code official tenure. [Approved for publication Nov. 27, 1996.] NEGLIGENCE — FRAUD — ENTIRE CONTROVERSY 31-2-0656 Twp. of Verona v. Fisher, App. Div. (5 pp.) Although the motion judge determined that Township’s complaint against plaintiff — alleging fraud in a withdrawn negligence suit — should be dismissed for failure to set forth specific facts under R.4:5-8(a), the court concludes that the action was barred by the entire controversy doctrine, since the fraud claim should have been brought in the negligence action commenced by the plaintiff. NEGLIGENCE — HORSE RACING 31-2-0657 Underwood v. Atlantic City Racing Assn., etc., et al., App. Div. (10 pp.) In a case where jockey sued track and lighting contractor for injuries sustained in a fall, in accordance with the “law of the case” doctrine, the trial judge should have applied the standard of care decided by the motion judge, that of ordinary negligence, and defendants’ motion in limine — seeking to apply a reckless or intentional standard — should have been denied. [Approved for publication Nov. 27, 1996.] NEGLIGENCE — LANDOWNER LIABILITY 31-2-0658 Monheit v. Aaron Rottenberg, et al., App. Div. (11 pp.) In case where plaintiff fell while inspecting (at developer’s invitation) a partially constructed townhouse in a development in which he was about to purchase a unit, the court correctly found that plaintiff was a business invitee as a matter of law and properly refused to submit to the jury the question whether plaintiff was a trespasser, even though plaintiff had been warned by mason on site not to enter because there were open drainage pits in building. PHYSICIAN/PATIENT 29-2-0659 Canesi v. Wilson, et al., App. Div. (13 pp.) On the record, it is clear that the general consensus of medical opinion is that there is no valid evidence of a cause and effect relationship between the drug Provera and limb reduction abnormalities in a fetus; a 1993 warning to that effect in the P.D.R. was eliminated and not returned. Since no evidence of a cause and effect relationship exists in the record, plaintiffs’ direct claims that plaintiff’s deformity was caused by the prescribing of Provera were properly dismissed. [Approved for publication Nov. 27, 1996.] PHYSICIAN/PATIENT — DENTISTS 29-2-0660 Hines v. American Dental Ctr., et al., App. Div. (4 pp.) Proof that plaintiff’s caps were installed negligently and that anesthesia was not properly administered through the vein in plaintiff’s arm required expert medical testimony to establish the standard of care, and the judge properly dismissed plaintiff’s malpractice case for plaintiff’s failure to supply the needed report, after he had been given repeated opportunities to comply. CRIMINAL LAW AND PROCEDURE 14-2-0661 State v. Daniels, App. Div. (8 pp.) Trial judge erred by failing to give an appropriate limiting instruction to the jury with respect to prosecutorily-admitted testimony of defendant’s prior bad acts, and such error requires reversal of conviction. FEDERAL COURT CASES CIVIL PROCEDURE — JUDICIAL NOTICE 07-7-0662 Storm v. Young, et al., U.S. Dist. Ct. (11 pp.) In a civil rights case arising from plaintiff’s prosecution for stalking, (1) the court denies pro se plaintiff’s multitude of requests for judicial notice under Fed.R.Civ.P. 44.1 and 201, since the facts presented are all subject to reasonable dispute, as they form the crux of the plaintiff’s constitutional claims. (2) Plaintiff’s motions to amend his complaint are denied, inter alia, because he has failed to specify allegations in two of the motions, and defendants could not, therefore, respond, and, with respect to the third proposed 328-page amended complaint — a “Joycian amalgam of factual allegation, opinion, evidentiary submission and legal argument” — the plaintiff fails to make a clear and concise statement required by the rules, and it would be nearly impossible for the defendants to respond. (3) The amendments are also denied as futile, due to the numerous immunities which would be available to the defendants. (4) Motion to consolidate is denied since, although plaintiff’s claims in both cases are largely based on section 1983, there is a marked difference in the actions of the various defendants which are relevant to each claim. [Filed Nov. 14, 1996.] EVIDENCE — DISCOVERY — SEXUAL HARASSMENT — MEDICAL RECORDS 19-7-0663 Armstrong, et al. v. Morris Cy., et al., U.S. Dist. Ct. (9 pp.) Since plaintiffs have placed their mental and physical states in issue with their allegations that defendants’ conduct caused them emotional distress and pain and suffering, the plaintiffs’ records of medical procedures and psychological counseling are relevant and defendants’ motion to compel discovery of these records is granted; plaintiffs’ claims of privilege are without merit, although the sensitivity of certain issues may go to the admissibility of such records at trial, and some protective order may be appropriate, upon motion. [Filed Nov. 14, 1996.] INSURANCE — VERBAL THRESHOLD 23-7-0664 Witty v. U.S.A., U.S. Dist. Ct. (22 pp.) Deciding an issue of first impression in this District, the court finds that the federal government, although self-insured, is entitled to the protective umbrella of immunity created by N.J.’s verbal threshold statute, and that the non-economic injuries alleged by the plaintiff do not meet the threshold in this case, therefore summary judgment will be granted on plaintiff’s claims for non-economic losses contained in the first count of his complaint. [Filed Nov. 15, 1996.][For publication.] CRIMINAL LAW AND PROCEDURE — CARJACKING 14-7-0665 U.S.A. v. Norwood, U.S. Dist. Ct. (23 pp.) In a case requiring the court to address an issue as yet undecided in the Third Circuit, regarding the meaning of the amendatory language of the federal carjacking statute, 18 U.S.C. 2119, the court holds that the government need only prove that defendant had conditional intent — that he intended to cause death or seriously bodily harm only if the alleged carjacking victim refused to surrender his or her vehicle, and denies defendant’s motion for judgment of acquittal. (emphasis supplied) [Filed Nov. 15, 1996.][For publication.] Editor’s Note: Due to the long holiday weekend, there will be no Alert published on Friday, November 29th. The next Alert will be issued on Monday, December 2nd. Happy Thanksgiving! A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The head of New Jersey’s disciplinary review board joins the cry for the creation of a mental-health exception to the automatic-disbarment rule for thieving attorneys. See page 1 of the Dec. 2 Law Journal.

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