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Vol. 3 No. 118 DECISIONS RELEASED JUNE 23, 1995 STATE COURT CASES CONTRACTS 11-2-5975 Debra Richel v. Otto Fisher, App. Div. (6 pp.) Where chiropractor began to criticize his associate’s performance, stopped paying her certain compensation to which she was entitled, gave her bad checks and brought in another chiropractor to work in her office, these actions constitute anticipatory breach of the employment contract, and judgment in favor of the associate was proper, but since judge made miscalculations in the damages award, and failed to give defendant a mitigation credit, matter is remanded for that purpose. FAMILY LAW 20-2-5976 Harold S. Ivins, Jr. v. Jean Linda Ivins, App. Div. (4 pp.) Since husband’s decision to take an early retirement was voluntary, it is not “changed circumstances” that would permit his original payments to be reduced, especially where the wife cannot be gainfully employed as a result of an illness which existed when the agreement was made, and is totally dependent on husband’s payments. HEALTH 22-2-5977 Hamilton Hospital, et al. v. William Waldman, Comm’r., et al., App. Div. (5 pp.) Hospitals’ challenge to a requirement that they make certain payments to the Health Care Trust (now replaced by a different fund under the 1992 Health Care Reform Act) is denied, since the reform act clearly contemplated that hospitals’ payments under both the old and new statutes would be husbanded and applied in aid of the statutory purposes, and the Legislature did not evince any intent to forgive any accrued obligations. LABOR AND EMPLOYMENT 25-2-5978 Pedro Valera v. Bd. of Review, et al., App. Div. (5 pp.) Where employee was out on disability leave, and there was a communication mishap involving one of the doctor’s letters required for an extension request and employee was thereby terminated, his disqualification for unemployment benefits is reversed since there must be a determination whether employee would have returned to work at the end of the year’s absence but for the termination, and the matter is remanded for that purpose. LAND USE 26-2-5979 George X. Sand v. Zoning Bd. of Adj. of Beach Haven Borough, et al., App. Div. (6 pp.) Where landowner was denied a building permit on his oceanfront property after his building was demolished in a storm, the trial judge’s decision denying landowner’s application for recovery of the property’s value on the theory of inverse condemnation was erroneous and is reversed, since there was a “taking,” and all economically viable use of the land was lost when the variance was denied, making it impossible for the owner to build on his residential lot. MUNICIPAL LAW 30-2-5980 Zulima V. Farber, Public Advocate of N.J. v. Borough of Seaside Park, App. Div. (10 pp.) Public Advocate’s decision to sue borough because it discriminated against daily beach users in favor of weekly and seasonal users) was not arbitrary and capricious, since the borough s brief shows existence of a factual basis for those allegations. 30-2-5981 Bruce Brody, et al. v. Karl Miller, et al., App. Div. (4 pp.) Where a board of adjustment member owned property within 200 feet of the applicant’s property and, accordingly, recused himself from a decision concerning his neighbor but still made several contributions during the hearing, it did not constitute error since the recused member’s statements were brief and factual in nature and had no capacity to influence the board’s decision; the decision to grant variance over objections is affirmed. NEGLIGENCE 31-2-5982 Gloria Hamilton v. H&G Inc., et al., App. Div. (4 pp.) Since a hotel owner or operator is under a duty to exercise ordinary care to render premises reasonably safe for the hotel guests’ use, the judge incorrectly granted summary judgment to hotel on a guest’s suit for injuries guest received when she slipped and fell while getting out of a bathtub that was 6.5 inches higher than the floor; the matter is remanded for the jury’s consideration of the issue, but summary judgment on a products liability claim against bathtub manufacturer is affirmed. 31-2-5983 Theresa R. Shaw, et al. v. New Jersey Camp Jaycee, et al., App. Div. (8 pp.) Where a mildly retarded adult was injured while at a special camp, where he received reduced camp tuition for working part-time as a waiter, (1) since the record clearly raises genuine issues of fact as to whether he was injured during the course of his employment or his use of the camp’s recreational facilities as a camper, summary judgment on the basis that workers’ compensation was plaintiff’s only remedy was erroneous; and (2) plaintiff’s filing of a workers’ compensation petition, which was dismissed on statute of limitations grounds, does not bar the present common law negligence suit; however (3) the case can proceed only against the camp director, as the camp should have been granted summary judgment based on charitable immunity. TAXATION 35-2-5984 Corporate Property Investors v. Director, Div. of Taxation, App. Div. (5 pp.) An entity that elects to be taxed as a real estate investment trust is entitled to deduct the dividends it pays its shareholders from its calculated taxable income under the New Jersey Corporation Business Tax Act, as well as under federal income tax laws. 35-2-5985 Fedway Associates, Inc. v. Director, Div. of Taxation, App. Div. (3 pp.) Company that purchases items of tangible personal property, such as napkins, corkscrews, calendars, golf bags and electronic equipment, to distribute as incentives to its sales staff and as promotional items to its customers, is not entitled to a use tax exemption for those items under the Urban Enterprise Zones Act, despite the fact that one of company’s locations was in an urban enterprise zone. [Approved for publication June 23, 1995.] [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE 14-2-5986 State v. James Mathus, App. Div. (24 pp.) Although certain counts alleging that defendant used victim’s credit card recite that defendant intended to defraud several stores, the trial court improperly instructed the jury that it only had to find that defendant defrauded one store in order to convict on these counts, and court’s failure to fully instruct the jury on the need for a unanimous vote as to each particular location warrants reversal on those counts. 14-2-5987 In the Matter of an Application for a Protective Order, App. Div. (14 pp.) Where appellant asserts that state promised complete confidentiality in exchange for his testimony and fears criminal retaliation if his statements are released in discovery by the state, the trial judge should not have rejected appellant’s application for a protective order on the ground that he had no standing to be heard in a matter relating to a criminal indictment in which he is not named, since the release of assertedly privileged information gives him the right to intervene, and the matter is remanded for a hearing on whether there was an agreement, what it was, and whether it was breached. [Approved for publication June 23, 1995.] [Available online in N.J. Full- Text Decisions.]

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