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CIVIL PROCEDURE — NOTICE OF MOTION — REAL ESTATE 07-2-8118 Zochowski, etc. v. Zochowski, etc., et al., App. Div. (per curiam) (5 pp.) The parties are brothers and equal shareholders of a family real estate holding corporation. Defendant appeals from a Chancery Division order permitting plaintiff to solely negotiate and execute all papers in connection with the sale of real estate. Because the court is satisfied that defendant has presented proof that he was unaware of the plaintiff’s motion until after the court issued its order, the order is vacated and the matter remanded for further proceedings. CORPORATIONS — CONTRACTS — ARBITRATION 12-2-8119 Air Pegasus of N.Y., Inc., etc., et al. v. Liberty Helicopter Tours, Inc., etc. v. Trenk, et al., App. Div. (per curiam) (31 pp.) The parties tried to globally settle their mutual lawsuits regarding the relations of their various corporations and partnerships involving the West 30th Street heliport and helicopter tours from Manhattan’s west side. The parties mutually chose as arbitrator an attorney who possessed significant knowledge of the heliport’s operations, but the way the “arbitration” proceeded was so fatally flawed, that the court reverses the trial judge’s decision upholding the arbitrator’s orders. The court finds that the appellants never waived their right to certain procedural guarantees, including a hearing, which the agreement anticipated would be held, even though the broad parameters of the conducting of the hearing would be in the arbitrator’s discretion. The court also finds that the appellants objected to the procedural infirmities early and continually thereafter, evidencing a clear intention NOT to waive any of the procedural safeguards of the statute. In addition, the arbitral decisions involved entities who were not parties to the agreement. Rather than remand, the court believes the better alternative is to reinstate the dismissed pleadings as the only effective way to return the litigants to “square one,” from which point they may choose to again arbitrate their claims if they so desire. DEBTOR/CREDITOR — CREDIT CARDS 15-2-8120 Discover Bank, etc. v. Tagayun, App. Div. (per curiam) (4 pp.) The court affirms the judgment entered in favor of plaintiff in accordance with the jury’s unanimous verdict, rejecting defendant’s assertions of error in procedural and evidentiary rulings by the court. The trial court was not biased against defendant, and did not err: in denying defendant’s motion to dismiss the complaint on the grounds that plaintiff did not have standing to sue under the Corporation Business Activities Act dealing with foreign corporations; in its failure to take judicial notice of certain evidence; in its preclusion of expert testimony by defendant’s only witness, her husband; and in its allowance of evidence of other indebtedness incurred by defendant. DEBTOR/CREDITOR — ORAL GUARANTEES — PAROL EVIDENCE — STATUTE OF FRAUDS 15-2-8121 Atlantic City Professional Baseball Club, Inc. v. Rodman, et al., App. Div. (per curiam) (12 pp.) The jurors aptly found on the evidence that appellant W. Rodman had made three oral promises guaranteeing the debt of his son and that plaintiff relied upon them in granting the son and another defendant the right to manage a minor league baseball team, the Atlantic City Surf. They also found that Rodman’s principal purpose, or leading object, in making the promises was to further his own interests in the baseball team, not to benefit his son. The trial judge accurately held that the parol evidence rule did not bar evidence about the oral promises because appellant was not a party to the written contract, and the evidence did not modify or contradict its terms. The judge also properly permitted the jurors to consider whether appellant’s oral promises to assume responsibility for his son’s debts were enforceable because his leading object was to benefit himself, taking the case out of the Statute of Frauds. INSURANCE — VERBAL THRESHOLD — DAMAGES 23-2-8122 Vergara, et ux. v. Reilly, et al., App. Div. (per curiam) (8 pp.) Once the trial judge determined that a new trial was warranted because the damages verdict shocked its conscience, the scope of the new trial should have been limited to the nature of the injustice; therefore, the trial judge erred in including in the scope of the new trial the issue of “permanent injury,” which the jury found in the first trial. The matter is remanded for re-trial of the damages issue only. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION — VOLUNTARY LAYOFFS AND EARLY RETIREMENT 25-2-8123 In re: Adoption of N.J.A.C. 12:17-9.6 by�N.J. Dept. of Labor, App. Div. (Axelrad, J.T.C., t/a) (23 pp.) This appeal challenges the facial validity of N.J.A.C. 12:17-9.6, a regulation promulgated by the Department of Labor and Workforce Development, which provides that employees who leave their employment to participate in “a written voluntary layoff and/or early retirement incentive policy or program … so that another employee may continue to work” are qualified to receive unemployment compensation benefits. The court holds that the regulation is invalid as a matter of law, as it contravenes the legislative policies underlying the Unemployment Compensation Act, N.J.S.A. 43:21-1 to -71, and is inconsistent with the Supreme Court’s interpretation of N.J.S.A. 43:21-5(a) in Brady v. Board of Review, 152 N.J. 197 (1997). [Approved for publication.] PHYSICIANS — PEER REVIEW — IMMUNITY 29-2-8124 Klein, D.D.S., M.D. v. Kushins, M.D., et al., App. Div. (per curiam) (8 pp.) The court correctly granted summary judgment to the defendants on plaintiff’s complaint for malicious interference with prospective economic advantage and intentional and negligent infliction of emotional distress with respect to their recommendations to the Medical Staff Reappointment Credentials Committee, which determined that plaintiff could be reappointed, but only with a period of retraining and supervision, which he refused. Defendants are immune from peer review under the Health Care Quality Improvement Act, as plaintiff failed to show that they did not conduct an objectively reasonable inquiry into whether his actions were in furtherance of quality healthcare. Defendants are also protected by the Tort Claims Act, which provides immunity to entities and individuals involved in professional licensing, as long as the decisions are objectively reasonable and made in good faith. WORKER’S COMPENSATION � SUICIDE 39-2-8125 Karak v. E.I. DuPont, App. Div. (per curiam) (7 pp.) The compensation judge found that plaintiff’s husband’s suicide was not work-related, but that he did not have jurisdiction over her medical malpractice claims which asserted that the suicide was caused by severe depression that was not properly diagnosed by three co-employees who were associated with an Employee Assistance Program (EAP) established by the employer. On remand from the Appellate Division to consider that issue, the compensation judge analyzed the actions of the three very distinct medical providers and aptly concluded that the steps they took were consistent with the purpose and function of the EAP; they observed, gathered information, and referred the patient for the specialized treatment they felt appropriate. The decedent’s suicide, while tragic, was not a result of any deviation from the appropriate standard of care by the co-employees. CRIMINAL LAW AND PROCEDURE — ACCOMPLICE LIABILITY 14-2-8126 State v. Ingram, App. Div. (per curiam) (27 pp.) Because the jury instructions on issues of accomplice liability did not adhere to the requirements of State v. Bielkiewicz, the appellate panel reverses defendant’s murder, conspiracy, robbery and theft convictions and remands for a new trial. CRIMINAL LAW AND PROCEDURE — MIRANDA RIGHTS 14-2-8127 State v. Nguyen, App. Div. (per curiam) (16 pp.) Over the State’s objection, the appellate panel affirms the trial judge’s conclusion that defendant had invoked his right to remain silent during his initial interview with the police, and that all subsequent statements should be suppressed. The judge also correctly ruled, at a “taint” hearing, that the testimony of defendant’s brother should also be precluded as fruit of the poisonous tree. Finally, the judge aptly concluded that the defendant’s jailhouse statement should be suppressed because it was not sufficiently attenuated from the prior statement and was inextricably intertwined. —Susan M. Clapp, Esq., Editor

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