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Vol. 2, No. 79 DECISIONS ISSUED MAY 5, 1994 CONTRACTS – ATTORNEY/CLIENT 11-2-3208 Roger C. Steedle v. Barbara Dougherty and Richard Dougherty, App. Div. (5 pp.) Where defendants retained an attorney in plaintiff firm to represent them in an accounting action, and plaintiff after a year successfully moved to be relieved as counsel because counsel fees pursuant to a retainer agreement were not paid, and defendants claimed that they retained the attorney, not the firm, to represent them individually and when attorney refused to appear in court the retainer agreement was breached, trial court properly held that (1) counsel had not been individually retained, and (2) defendants had continued to accept legal services even after they realized that the particular attorney was not going to do the work and the matter had been delegated to others, since findings were based on substantial evidence. CONTRACTS – AUTOMOBILES 11-2-3209 Brenda Allette v. Don Saffioti and AAMCO Transmissions, App. Div. (5 pp.) Where plaintiff had defendant inspect her car’s transmission, because plaintiff was told that defendant did not charge for towing or a repair estimate; and defendant would not return the car until fees for the estimate and towing were paid, trial court properly held that defendant owed plaintiff the value of the car and plaintiff’s loss of use of the car, since trial judge found plaintiff’s account credible. INSURANCE – AUTOMOBILES 23-2-3210 Jacqueline Mata and Paul Mata v. Ronald A. Ballard, Jr. and Brenda Mason, App. Div. (6 pp.) Where plaintiff’s back was injured in an automobile accident, trial court properly dismissed plaintiff’s complaint for failure to meet verbal-threshold criteria, since (1) plaintiff did not seek treatment until four days after the accident, and (2) medical examinations and tests were negative, except for some tenderness and spasms. INSURANCE – TORTS 23-2-3211 Altino Pedro, et al., v. Liberty Hillside Assocs. et al. and Sirocha Constr., Inc., v. Mount Vernon Fire Ins. Co., App. Div. (7 pp.) Where Sirocha, who had contracted with Liberty Hillside to rehabilitate a building, subcontracted with plaintiff’s employer to paint the building, and plaintiff was injured when scaffolding–owned and set up by Sirocha–on which he was working collapsed, trial court erred in holding that Sirocha’s insurer, Mount Vernon, properly disclaimed coverage, since under a proximate-cause analysis the claim was made by plaintiff, an independent contractor, who was injured by Sirocha’s negligent act which preceded plaintiff’s services. PUBLIC EMPLOYEES – CONTRACTS 33-2-3212 New Jersey State AFL-CIO, et al., v. Samuel Crane, in his capacity as Treasurer of the State of New Jersey, et al., App. Div. (5 pp.) Plaintiffs challenged L. 1992, c. 41, which changed method of valuing pension funds from book value to market value, resulting in a reduction of employers’ contributions, trial court properly held that the law did not impair the employees’ contractual rights, and it was not an unlawful taking of property, since pensions systems (1) do not endow public employees with contractual rights, and (2) are subject to legislative policy rather than bound by immutable contractual rights and obligations. WILLS AND TRUSTS 38-2-3213 In the Matter of the Estate of Edward J. Mecka, Sr., et al. v. Agnes Foley, et al., App. Div. (5 pp.) Where defendants, decedent’s children, after accepting shares of their father’s estate appealed from estate disbursement because wife’s estate was reimbursed for payment of her husband’s funeral expenses, trial court properly affirmed estate disbursement, since (1) children were barred from contesting the order, after accepting their estate shares, and (2) if an estate is solvent as their father’s was, the estate is primarily liable for the funeral expenses, and only if the estate is insolvent is the surviving spouse primarily liable, entitling the wife or her estate to reimbursement. CRIMINAL LAW AND PROCEDURE 14-2-3214 State v. Michael Brown, App. Div. (23 pp.) Where defendant was convicted of purposeful or knowing murder, trial court erred in not allowing defense counsel to cross-examine a witness about his habitual cocaine use and alleged use of cocaine on a night several months before the stabbing in which defendant supposedly threatened the victim, since (1) evidence of a witness’s sensory or mental defects has unquestionable relevancy in attacking the witness’s credibility, and (2) the Rule 55 hearing that was held did not focus on witness’s cocaine use. 14-2-3215 State v. Mark Bryant, App. Div. (4 pp.) Where defendant was indicted for purposeful and knowing murder, trial judge erred in amending the indictment to aggravated manslaughter, since the record supported the grand jury’s determination that the defendant should stand trial for purposeful and knowing murder. 14-2-3216 State v. Bruce Risely, App. Div. (10 pp.) Trial court properly denied a petition for post-conviction relief by a juvenile (who was tried as an adult and was convicted of felony murder) that was filed five years after his conviction, based on the federal court decision in Helton v. Fauver, 930 F.2d 1040, 1047 – 1048 (3rd Cir. 1991) (regarding a co-defendant, where the federal court held that the New Jersey Supreme Court’s holding that waiver may be required to satisfy the public’s need for deterrence even if there is a possibility for rehabilitation constituted an unforeseen change law, which could not be applied retroactively), since the Helton decision is persuasive but is not binding on this state’s courts, and nothing prohibited the defendant from filing his post-conviction proceeding earlier. 14-2-3217 State in the Interest of S.S., a Juvenile, App. Div. (9 pp.) Where defendant was fingerprinted when he was charged with delinquency, and if tried as an adult he would have been charged with receiving stolen property and car theft, Appellate Division held that N.J.S.A. 2A:4A-61 authorizes such fingerprinting, since this is supported by the legislative intent.

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