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VOL. 2 NO. 203 DECISIONS RELEASED NOV. 18, 1994 ARBITRATION AND MEDIATION – PUBLIC EMPLOYEES 03-2-4362 Borough of Pompton Lakes v. Pompton Lakes Borough Employees Ass’n, App. Div. (5 pp.) Where town council objected to arbitrator’s salary increase award to two borough employees on grounds that council did not vote to increase salaries and letter from council member increasing salaries did not bind council, trial court properly affirmed award, since arbitrator’s decision was based his analysis of the testimony. ATTORNEY/CLIENT – NEGLIGENCE 04-1-4363 In the Matter of Judge Philip A. Fenster, A Judge of the Paterson Municipal Court, Supreme Ct. (20 pp.) A municipal court judge is suspended for six months, since he permitted the court’s political independence to be destroyed by knowingly turning over quasi-criminal proceedings in open court to a mayor. [Available online in NJ Full-Text Decisions.] CIVIL PROCEDURE – PHYSICIAN/PATIENT – NEGLIGENCE 07-2-4364 Dong Gul Lee v. Wayne Steinbeck, M.D., et al, App. Div. (8 pp.) Where patient’s husband challenged validity of wife’s psychiatric diagnosis after insurer refused to pay entire bill for her hospitalization, trial court properly dismissed the complaint, since the husband lacked standing because the wife had not brought a claim on her own behalf and refused to participate in husband’s claim. EVIDENCE- ATTORNEY/CLIENT – NEGLIGENCE 19-3-4365 Richard McGuinness v. Timothy L. Barnes, Esq., et al., Law Div. (9 pp.) In a legal malpractice case, trial court allowed a client to submit into evidence lawyer’s out-of-court statements–that he made as a legal-seminar panelist–to impeach him, since the statements were not protected as a First Amendment privilege; because the public’s interest in the full disclosure of truth in the courtroom outweighs a lecturer’s First Amendment rights to free speech. GOVERNMENT – CONTRACTS 21-2-4366 In re: Protest of Intent to Award Contract No. 94-X-27985 Subsurface Remediation Recovery Serv. Contract, App. Div. (17 pp.) In suit to disqualify bidding awards, state Treasury Department properly exercised its discretion in waiving three lowest bidders’ minor irregularities, especially when taxpayers’ money will be saved. INSURANCE – AUTOMOBILES 23-2-4367 Maurice J. King v. State Farm Ins. Co., App. Div. (5 pp.) Trial judge erred in directing insurer to provide additional uninsured and underinsured motorist coverage, since insured’s recollections about conversations that he had with agent regarding coverage were insufficient to justify imposing on the insurer an independent duty advise insured that additional coverage was available beyond information provided in buyer’s guide. 23-2-4368 Antonino Scasso, et al. v. Able Metro Moving & Storage Co., et al., App. Div. (13 pp.) Where carpenter was injured when he fell from a tree due to a van which got caught on a cable the carpenter was working on, trial court properly allowed two eyewitnesses to testify about the van’s speed, since lay people who have experience with vehicles’ operations can give an opinion about speed. INSURANCE – PRODUCT LIABILITY 23-2-4369 Harvester Chem. Corp v. Aetna Casualty & Surety Co., et al., App. Div. (15 pp.) Where insured claimed that insurer did not properly notify insured of mid-term cancelation, which was based on underwriting considerations, trial court erred in dismissing complaint, since public policy prohibits an insurer from unilaterally terminating an insured’s policy mid-term without adequate and objective reasonable grounds. [Approved for publication today. Available online in NJ Full-Text Documents.] NEGLIGENCE 31-2-4370 Lucille W. Langer v. Freddie’s Tavern, App. Div. (4 pp.) Where customer was injured when she fell on restaurant’s exterior steps, trial court properly allowed restaurant’s president to testify that there had been no other accidents on the steps, since testimony was relevant to restaurant’s knowledge or notice of possible defects. REAL ESTATE – CONTRACTS 34-2-4371 GKSN&C v. Henry McKevitt, et al., App. Div. (13 pp.) Trial court properly rescinded property sale on grounds that mortgage and note held by seller were null and void, since seller did not disclose termite reports showing extensive damage to the house, which were latent and material defects. CRIMINAL LAW AND PROCEDURE 14-2-4372 State v. Elijah Bryant, App. Div. (46 pp.) Where defendant, who was convicted of felony murder, claimed that his trial was unfair because a jury heard about a prior juvenile conviction for armed robbery, trial court erred in admitting the evidence, but it was harmless due to the substantial evidence of defendant’s guilt. 14-2-4373 State v. Gerald Timoldi, App. Div. (6 pp.) Where defendant pled guilty to heroin possession, trial court properly held that requiring defendant to forfeit his position as superintendent of parks and recreation, pursuant to N.J.S.A. 2C:51-2(c), was not cruel and unusual punishment, since public employees have advance notice of the statute, and action did not shock the conscience. [Approved for publication today. Available online in NJ Full-Text Documents.] CRIMINAL LAW AND PROCEDURE – ALCOHOLIC BEVERAGES 14-2-4374 State v. Forrest R. Kellam, Jr., App. Div. (5 pp.) Where defendant contested drunk-driving conviction on grounds that officer had no probable cause to stop his car, trial court properly upheld the conviction, since officer had sufficient probable cause to investigate the scene in response to a report about a fight.

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