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Vol. 2, No. 23 DECISIONS ISSUED FEBRUARY 8, 1994 AGENCY AND PARTNERSHIP – REAL ESTATE 02-3-2585 Eugene Heller v. Hartz Mountain Industries, Inc., et al., Law Div. (18 pp.) Where buy-out price for plaintiff’s withdrawal as a participant in all of defendant’s real estate developments was governed by the partnership agreement controlling each development, and Hartz had managed the whole appraisal process to the total exclusion of plaintiff in order to determine the respective partnership values, trial court held that defendant breached its fiduciary duty to plaintiff, which extends even in a buy-out situation, since defendant controlled the entire appraisal process, so much so that the appraiser thought that defendant and not the partnership was his employer. [Approved for publication on Feb. 4, 1994.] CIVIL RIGHTS 46-2-2586 Susan Maczik v. Gilford Park Yacht Club, App. Div. (18 pp.) Where club violated the Law Against Discrimination by denying plaintiff club membership on the basis of her sex, director of the Division of Civil Rights erred in awarding plaintiff punitive damages, since the 1990 amendments to the act did not give the director the authority to award punitive damages. CORRECTIONS 13-2-2587 James Brown v. Howard L. Beyer, App. Div. (4 pp.) Department of Corrections erred in disciplinary adjudication in convicting state prison inmate for conspiring to kill white prison staff members, since the only proof for the conviction was an unsubstantiated confidential report of the officers who interviewed an informant and repeated informant’s statement that the informant had heard the prisoner make the offending remarks that the only way to be free was to kill all white staff members. FAMILY LAW 20-2-2588 Joan Goldstein v. Marvin Goldstein, App.Div. (5 pp.) Trial court properly held that husband was still obligated to pay alimony to his wife, since wife’s salary increase during the 13 years since the divorce and property-settlement agreement did not constitute a substantial change in circumstances when considering her present and past debts, expenses and needs. FAMILY LAW – JURISDICTION 20-2-2589 In the Matter of the Adoption of a Child by T.W.C. and P.C., App. Div. (19 pp.) Where mother, a New York resident, who had privately placed her newborn son for adoption by New Jersey residents and later revoked her consent for the adoption, trial court properly held that New Jersey law applied, since New Jersey had “significant connection” jurisdiction under the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act because, among other things, (1) the child had lived in New Jersey from two days of age, and (2) mother and adoptive parents agreed that the adoption action would take place in the New Jersey court. INSURANCE 23-3-2590 Firemen’s Fund of New Jersey v. Bertha M. Caldwell and Georgia Caviness, Law Div. (13 pp.) Where defendant Caviness was injured in her residence, a two-family dwelling owned by defendant’s sister, co-defendant Caldwell, and homeowner’s insurance policy excluded coverage for injury to insureds defined as residents of insured’s household who are relatives, and the insurance policy did not define household, trial court held that, in analyzing the policy’s exclusion, it must be shown that a familial relationship existed between the parties, such as the sharing of companionship and some degree of joint domesticity. [Approved for publication Feb. 4, 1994.] 23-2-2591 J.B. Robinson Construction Co., et al. v. Cigna Insurance Co., et al., and Edward and Anna Rivera, et al., App. Div. (6 pp.) Where plaintiff officers of construction company were also Cigna employees who adjusted property-damage claims submitted by Cigna insureds (and were terminated for their failure to cooperate in insurer’s investigation regarding plaintiffs’ potential conflict of interest), trial court properly dismissed as time barred plaintiffs’ complaint seeking payment from insurer for work done on insureds’ homes since plaintiffs knew that insurer would not pay plaintiffs’ construction bill when they were fired, well within the six-year statute of limitations. LAND USE 26-3-2592 New Brunswick Cellular Telephone Co. v. Old Bridge Township Planning Board, et al., Law Div. (22 pp.) Where township planning board denied plaintiff’s application for a height variance and site plan to develop and operate a base station and 160-foot antenna tower, trial court held that on remand the planning board should balance whether the benefit the public will receive from the variance outweighs the detriment, just as a zoning board is required. [Approved for publication Feb. 4, 1994.] PUBLIC EMPLOYEES 33-2-2593 In the Matter of John Rutkowski, App. Div. (12 pp.) Where administrative law judge’s decision affirming the dismissal of police officer for on-the-job intoxication was based on prior incidents for which the police officer already had been penalized and the fact that the officer’s record was not as extensive as had been represented to the judge, the decision is remanded since had all the facts been known to the judge she may have accepted a lesser alternative penalty, in lieu of dismissal. WORKERS’ COMPENSATION 39-2-2594 Frederick G. Kroeter v. Harvco, App. Div. (8 pp.) Where petitioner, a roofer, worked independently on jobs with respondent and respondent took no taxes or other deductions out of petitioner’s pay, workers’ compensation judge properly determined that petitioner was not entitled to coverage under respondent’s workers’ compensation policy, since the respondent had no control over petitioner’s work activity, in order for respondent to be deemed an employee. WORKERS’ COMPENSATION – JURISDICTION 39-2-2595 Anthony Mastice, Sr., et al. v. Interstate Industrial Corp. and Mobil Oil Corp., et al., App. Div. (8 pp.) Where New Jersey workers’ compensation law recognizes an elective option for injured minor employees to bring a cause of action under common-law negligence and New York law does not recognize such a claim, trial court erred in holding that New Jersey worker’s compensation law should apply to a New Jersey minor injured on a job site in New York, since New Jersey does not have a strong enough public-policy interest in the outcome to outweigh New York’s interest in immunizing its employers against common-law negligence liability. CRIMINAL LAW 14-2-2596 State v. Dorian Gray, App. Div. (4 pp.) Where defendant, who allegedly tossed a baby into the air and failed to catch the child, causing the baby to fall on her head and die, trial judge erred in instructing the jury on an essential element of reckless manslaughter by stating that the defendant would be guilty if he consciously disregarded a risk that he might not catch the baby, or that she might slip and fall to her injury, since the two instructions involved obviously different levels of blame. 14-2-2597 State v. Keith Jackson, App. Div. (10 pp.) Where victim reported to police that she had just seen alleged rapist enter an apartment and police–after banging on the apartment door and announcing their presence–were let into the apartment by the suspect, who was arrested and whose articles were seized during the arrest, trial court properly admitted articles seized, since there was substantial evidence that the police had not kicked in the apartment door, and therefore there was no warrantless entry. 14-2-2598 State v. Gill Job, App. Div. (4 pp.) Where technician who drew defendant’s blood testified that she gave only one vial of blood to the arresting officer, who testified that he was given two vials of defendant’s blood, trial court properly admitted defendant’s blood-alcohol tests into evidence, since the state established the proper chain of custody from the police officer’s testimony about his receipt of the blood vials from the technician. 14-2-2599 State v. Dashon Mc Clam, App. Div. (5 pp.) Where informant notified police officer that alleged murderer was living with the defendant and after being told by defendant’s neighbor that defendant had friends living with him, the police officer looked through defendant’s basement apartment window and noticed what appeared to be a bag of cocaine and landlord let police officer into defendant’s apartment, trial court properly held that there were sufficient exigent circumstances to justify a warrantless search of defendant’s apartment, since the police officer was lawfully investigating informant’s lead and had an arrest warrant for the alleged murderer. 14-2-2600 State v. Albert Twitty, App. Div. (4 pp.) Where police officer noticed a vehicle, without headlights or taillights on, exit a closed unlight gas station, and after stopping the vehicle, the arresting officer saw two spent gun cartridges in the middle of the driver’s side seat, trial court properly concluded that traffic stop and search of the car was justified, since the initial motor vehicle stop was reasonable and the subsequent observation of the spent shells supported the interior search of the vehicle. CRIMINAL LAW – EVIDENCE 14-3-2600 State v. Anthony Dudley, Law Div. (7 pp.) Where shooting victim during first photo array made a positive identification of defendant Dudley and co-defendant, and also gave a taped statement to the police naming co-defendant, but victim during second photo array who picked a photo of defendant Dudley out but was not certain that he was the shooter, trial court held that exculpatory statements made by victim during second photo array was admissible, since (1) the victim was not available at trial, and (2) the exclusion of the hearsay statements would be prejudicial to the defendant. [Approved for publication Feb. 4, 1994.]

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