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Vol. 3 No. 88 DECISIONS RELEASED MAY 11, 1995 ADMINISTRATIVE LAW AND PROCEDURE — MEDICAID 01-2-5594 C. M. v. State Dept. of Human Services, et al., App. Div. (4 pp.) The evidence in the case was insufficient to prove that the county caseworker specifically misadvised the patient’s family not to pay a large, outstanding medical bill, which would have depleted patient’s resources and qualified him for Medicaid benefits sooner, and a later Medicaid qualification date is affirmed. ATTORNEY/CLIENT — OUT-OF-POCKET EXPENSES 04-2-5595 Blume, Vasquez, et al. v. Seymour Handler, App. Div. (4 pp.) Summary judgment in favor of law firm against client for expenses in unsuccessful wrongful death litigation was improvidently granted, since retainer agreement was ambiguous as to the issue of how expenses were to be paid if there was no recovery, and the ambiguity must be construed against the law firm that drew the agreement. FAMILY LAW — SURNAME OF CHILD 20-1-5596 Alan Gubernat v. Karen E. Deremer, Supreme Ct. (42 pp.) In contested cases, a surname selected by a custodial parent shall be presumed to be consistent with the child’s best interest, although that presumption may be rebutted by evidence that a different surname would better serve the child’s interest; since the father in the case failed to produce such evidence, the child will be permitted to keep his mother’s surname. FAMILY LAW 20-2-5597 Jack Stock v. Lulubelle Stock, App. Div. (7 pp.) Since husband violated a divorce judgment and unemployed wife had not received alimony for almost two years, wife was entitled to counsel fees on her application to enforce the judgment, and, when husband cross-moved for alimony reduction, the court failed to permit discovery and to conduct a plenary hearing on the husband’s alleged change of circumstances which deprived wife of a fair consideration of the merits of the cross-motion; therefore the matter is remanded. 20-2-5598 Brian Furman v. Alicia De La Torre, App. Div. (10 pp.) The record presents sufficient credible evidence to support father’s custody award despite the trial court’s failure to analyze the evidence in light of the N.J.S.A. 9:2-4 criteria and its failure to conduct an in camera interview with the child. INSURANCE — PIP COVERAGE TO GOOD SAMARITAN 23-2-5599 Robert E. Burns v. Market Transition Facility of N.J., et al., App. Div. (9 pp.) A good samaritan who is partially inside of an automobile while rendering emergency assistance to its injured driver occupies the vehicle for PIP purposes, and if he is injured while rendering such aid, there is a sufficient nexus between his injuries and the use of the automobile so that he is entitled to PIP benefits. [Approved for publication.] INSURANCE — VERBAL THRESHOLD 23-2-5600 Teri J. Wescoat v. Victor R. McClain, et al., App. Div. (3 pp.) Where there was no evidence that plaintiff’s complaints were causally related to the mild lumbar bulge the plaintiff’s doctor found or that the bulge was causally related to the accident, and where the bulge did not appear on an MRI reading 11 months after it was first discovered, there was insufficient evidence that plaintiff’s injury met the verbal threshold, and summary judgment for defendants was proper. LABOR AND EMPLOYMENT 25-2-5601 N.J. Steel Ass’n., et al. v. Burlington Cty. Bridge Comm’n, et al., App. Div. (8 pp.) Since the controlling statutes give the state Commissioner of Labor express authority to define the locality within which he will determine the prevailing wage rate to use for a bridge re-decking project, and his decision to use Burlington County as that locality is not so entirely without a rational basis that is should be set aside, despite the fact that the choice will cost the taxpayers a large sum of money. 25-2-5602 Petro Mosley v. Bd. of Review,et al., App. Div. (3 pp.) Although a former trucking dispatcher and administrative assistant established that his duties had changed to those of a driver, he failed to show that this change was unsuitable or that he was placed at risk by doing this job, and thus he did not leave his job for good cause, and unemployment compensation benefits were properly denied. 25-2-5603 Nancy Danner v. Bd. of Review, et al., App. Div. (3 pp.) Where deli clerk’s work injury occurred as a direct result of her violation of company rules in failing to use a guard on food slicer, her subsequent fear of the slicer and further possible injury did not constitute good cause, attributable to such work, for leaving, and unemployment compensation benefits were properly denied to her. MUNICIPAL LAW — LAND USE 30-2-5604 Jesse Rosenblum v. Exxon Co., U.S.A., et al., App. Div. (8 pp.) The trial court correctly dismissed the first count of plaintiff’s complaint challenging the grant of a variance to defendant (for modernization of a gas station), since it was time-barred, but the court erred in dismissing the second count, which challenged site plan approval, since this aspect was timely filed. NEGLIGENCE 31-2-5605 Catherine Schwartz v. Dujets Tree Experts, et al., App. Div. (5 pp.) In case where plaintiff fell on an uneven sidewalk and was injured, since the record was devoid of evidence from which the jury could reasonably have concluded that, but for the defendant’s allegedly dilatory removal of the tree stump, the sidewalk would not have been uneven and plaintiff would not have fallen, the complaint was properly dismissed. 31-2-5606 Marianne J. Franklin, et al. v. Manalapan Twp., et al., App. Div. (4 pp.) Even though there was a dispute as to the exact date of the month on which the accident occurred, there was no evidence in the record as to why the attorney waited so long to commence the action, and the trial judge correctly granted defendant s summary judgment motion because the action was not brought within the two-year limitation period. TORTS — IMMUNITIES 36-2-5607 Maryann Marky v. Twp. of Brick, et al., App. Div. (8 pp.) Since the liability urged by the plaintiff (who was injured by her ex-boyfriend when he stole a police officer’s gun) relates to the inadequate training of the police officer with respect to firearm retention, immunity is not provided to the municipality because the negligence is not premised upon harm caused to the plaintiff by acts of either the municipality, the police officer, or the boyfriend. WORKERS COMPENSATION 39-2-5608 Angel Rodriguez v. Extra Supermarket Corp., App. Div. (5 pp.) The court’s order denying petitioner s motion to vacate a dismissal of his action for lack of prosecution and to restore the matter is reversed where the petitioner’s attorney proved excusable neglect in failing to appear at the hearings since his law firm was in the process of dissolution and relocation, and matters were not properly received and tracked. 39-2-5609 Joaquin Molina v. United Steel Deck, App. Div. (8 pp.) Where petitioner’s reopener petition was mailed for filing more than a year and a half before the limitations period expired, and where her attorney would not have needed to wait for a canceled filing fee check or docket number as proof of receipt since the reopener required no new fee and used the old docket number, and where the attorney followed up the presumed filing with many letters to respondent asking for a copy of its answer, with no response, petitioner is entitled to rely on the presumption that the mail was received, and the order dismissing the reopener application as time-barred is reversed. CRIMINAL LAW AND PROCEDURE 14-2-5610 State v. Lyons Precast Erectors, Inc., et al., App. Div. (5 pp.) In this quasi-criminal proceeding where defendants were charged with failure to remit unemployment insurance contributions with the intent to evade payment, the municipal court properly acquitted the defendants, finding that the state had failed to make out a prima facie case against them, and, consequently, the principles of double jeopardy precluded an appeal to the Law Division. 14-2-5611 State v. Evelyn Berman Frank, App. Div. (6 pp.) The denial of defendant’s request for reconsideration of her sentence due to her alleged medical condition and inability to endure incarceration is affirmed, since her fears for her medical condition during her incarceration since the revocation of her probation do not seem to have become a reality and her medical needs can be adequately monitored and addressed in the correctional setting. [Decided and approved for publication May 10, 1995.] 14-2-5612 State v. Paul Marciniak, App. Div. (9 pp.) An order granting defendant’s motion to suppress bullets and firearms seized at the time of defendant’s arrest is reversed since the firearms were seized in a search incident to defendant’s valid arrest pursuant to a warrant issued for his parole violation.

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