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Vol. 2, No. 78 DECISIONS ISSUED MAY 4, 1994 CONTRACTS 11-2-3197 Saxon Constr. & Management Corp. v. Masterclean of N. Carolina, Inc., and First Indem. of Am. Ins. Co., App. Div. (10 pp.) Where plaintiff sued defendant for contract breach, trial court properly held that contract-termination clause violated public policy, since it permitted defendant, the defaulting party, to profit from its breach, and discouraged the plaintiff from minimizing its losses. CONTRACTS – ARBITRATION AND MEDIATION 11-2-3198 In the Matter of the Arbitration Between: Tretina Printing, Inc., et al. v. Fitzpatrick and Assocs. Inc., Sup. Ct. (36 pp. incl. concurrence and dissent) Where arbitrator awarded plaintiff money after plaintiff failed to pay one of defendant’s requisitions for work defendant did on design and construction of printing plant and office building, trial court erred in modifying the award, since (1) arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing by the arbitrator, and (2) ambiguity in how the arbitrator calculated one part of a multiple claim complex contract dispute provides no basis for resubmitting the award to the arbitrator for clarification. INSURANCE – AUTOMOBILES 23-2-3199 Hildana Ciser and John Ciser v. Pearl Lustig, App. Div. (4 pp.) Where plaintiff injured her back and shoulders in an automobile accident, trial court correctly dismissed plaintiff’s complaint for failure to meet verbal-threshold criteria, since plaintiff performed her household chores almost immediately after the accident, and doctor’s report which indicated that plaintiff suffered from a permanent consequential limitation was based solely on a range-of-motion test that normally does not constitute objective medical evidence of disability, and there was no other substantial medical evidence. LAND USE 26-02-3200 Joseph Diva and Michael Axelrod v. Planning Bd. of Ventnor City and City of Ventnor, and Herbert Weiman, App. Div. (7 pp.) Where plaintiff Joseph Diva needed subdivision and variance approval to subdivide lots, and Diva contracted to sell land to Ronald McCay with a provision that Diva would repurchase lots if they couldn’t be subdivided, and because McCay did not have money to buy both properties, McCay contracted to sell one lot to plaintiff Michael Axelrod, planning board erred in dismissing application because Diva no longer had standing, since when he sold property to McCay he retained a right to repurchase the property, and was concerned with the application as a “developer.” PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3201 James R. Bradbury, III, et al., v. Francis J. Pizzi, M.D., et al. and St. Francis Medical Ctr., et al., App. Div. (6 pp.) Where jury found defendant doctor 75 percent liable and defendant residents 25 percent liable for patient’s death, trial court properly upheld jury verdict, since jury had before it both plaintiff’s and defendants’ liability theory, and the jury was free to adopt or disregard testimony of any party as it saw fit. TAXATION AND CONSTITUTIONAL LAW 35-2-3202 James William Rinier and Carmella Forziati v. State, App. Div. (12 pp.) Where plaintiffs husband and wife claimed that state Gross Income Tax Act, N.J.S.A. 54A:1-1 to 54:10- 12, violated their federal equal protection and due process rights by requiring them to file a joint state income tax return if they file a joint federal return, causing them to pay a higher-state tax, trial court properly held that (1) the rational-basis test applied, since married persons are not a suspect class, and (2) the fact that there may be adverse tax consequences to some married couples from marital-status classification does not render the tax scheme irrational, since a state does not violate equal protection merely because the classifications made by its laws are imperfect. CRIMINAL LAW AND PROCEDURE 14-2-3203 State v. Billie J. Ballard, App. Div. (8 pp.) Where defendant was convicted of marijuana possession after police officers noticed marijuana and paraphernalia on a bureau in his bedroom, where he was passed out, after police officers entered defendant’s home to investigate a report of suspicious noises late at night (after their knocks, calls and telephone calls were unheeded and the front door was open), trial court properly denied defendant’s suppression motion, since circumstances supported the police officers’ warrantless entry. 14-2-3204 State in the Interest of R.F., App. Div. (12 pp.) Where defendant would have been charged with aggravated sexual assault, if defendant was tried as an adult, and the issue was whether the sex was consensual or forced, trial court properly held that victim’s account was believable, since judge’s decision was based on a careful review of the evidence. 14-2-3205 State v. Lawrence Katz, App. Div. (8 pp.) Where defendant pled guilty to one count of third-degree possession of a controlled dangerous substance, trial court properly affirmed prosector’s denial of defendant’s application for the Pre-Trial Intervention Program, since prosecutor’s decision was based on credible evidence in the record, and there was no abuse of discretion. 14-2-3206 State v. Angel Matos, App. Div. (21 pp.) Where (1) defendant, who was charged with possession of a controlled dangerous substance, entered into a plea agreement where certain charges would be dropped if he testified at co-defendants’ trials, and 2) defendant testified differently from what was expected at his own hearing and trial judge refused to accept plea agreement on belief that defendant was not complying with agreement, trial judge erred in holding defendant in contempt based upon his statement that he did not intend to comply with an order to testify at some time in the future, since the hearing did not fall within the statutory requirement of a “criminal proceeding,” nor did it fit within the conduct to be punished, refusal “to answer a question or produce evidence,” under N.J.S.A. 2A:81-17.3. 14-2-3207 State v. Edward O’Rourke, App. Div. (3 pp.) Where defendant/police officer was convicted of simple assault, for hitting the back of the victim’s head with a flashlight when the victim was attempting to get up after he fell on defendant after someone pushed him, trial court’s conviction of defendant was proper, since the victim had not assaulted the defendant, and conviction was supported by the evidence.

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