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Vol. 3 No. 68 DECISIONS RELEASED APRIL 11, 1995 ADMINISTRATIVE LAW AND PROCEDURE — CASINOS 01-2-5377 Kathryn Lersch v. Sands Hotel, Casino & Country Club, App. Div. (8 pp.) Since slot machine payouts are strictly governed and machine on which plaintiff won was limited by Casino Control Commission regulations to a $15,000 payout, the fact that a faulty wire caused sign over machine to incorrectly flash $75,000 did not give rise to plaintiff’s cause of action against the casino for breach of contract and the trial judge erred in concluding that plaintiff had such a cause of action. BANKING 06-2-5378 American Nat l Fire Ins. Co. v. Nat l Community Bank of N.J., et al., App. Div. (6 pp.) Where an employee fraudulently opened a bank account in his employer’s name and, through the account embezzled $41,000, and the insurance company (subrogee of the employer) sued the bank to recover the loss, the trial judge erred in holding that the action was barred by certain banking statutes dealing with conclusive presumptions of correctness of accountings vis a vis the depositor and all claiming through him, since, under the circumstances of the embezzlement, the employer (and plaintiff as its assignee) could not come within the statutory meaning of all claiming through the depositor. CONTRACTS — LIMITATIONS 11-1-5379 Metromedia Co. v. Hartz Mountain Assoc., Supreme Ct. (8 pp.) Under the installment contract theory of accrual of a cause of action, tenant’s claims for credit for the cost of cleaning services accrued on a monthly basis beginning on the effective date of the agreement for reimbursement with the landlord, but any recovery for cleaning services for the period from Jan. 1, 1985, to Feb. 1, 1986, would be time-barred. EVIDENCE 19-2-5380 Anne Giuffre, et al. v. Englishtown Auction Sales, Inc., App. Div. (6 pp.) While a photograph of conditions at a flea market in an area removed from the location in which plaintiff fell may have been relevant as to the credibility of market operator’s testimony concerning general reasonableness of safety procedures allegedly implemented and enforced, its exclusion by the trial judge on the basis that it did not depict the area in which plaintiff was injured did not have the clear capacity to bring about an unjustice and was not error, especially where four photographs of the exact area where plaintiff fell were admitted. FAMILY LAW 20-2-5381 Gloria Jean Bloom v. Stephen Bloom, App. Div. (5 pp.) The motion judge correctly denied husband’s application for termination of support obligation since husband paid weekly support pursuant to a separation agreement for seven years and then stopped unilaterally for 11 years, and the fact that wife did not move before the court for 11 years was not probative of her acquiescence, and husband would not be permitted to unilaterally cease his obligation and then rely on his own action as a basis for future cessation or reduction. 20-2-5382 Doreen L. Arpa v. Louis P. Arpa, App. Div. (6 pp.) An order prohibiting the mother from removing the child of the marriage from enrollment in a specific school district is reversed to the extent that it would survive the resolution of the then-pending application for change of custody by the father, subject to the father’s burden on remand to show significant reasons critical to the child’s well-being why such removal would be detrimental. INSURANCE — VERBAL THRESHOLD 23-2-5383 Carol Gaffney v. Nancy Scheid, App. Div. (3 pp.) Since plaintiff’s medical report did not state whether the findings regarding her limitations in range of motion were based on verifiable physical examination or observation rather than subjective patient responses, plaintiff’s proofs failed to surmount the verbal threshold. INSURANCE — ENVIRONMENTAL LITIGATION 23-2-5384 American Employers Insurance Co., et al. v. Elf Atochem North America, Inc., et al., App. Div. (19 pp.) Where insurer had filed a declaratory judgment action in New Jersey against its insured and other carriers to determine their respective insurance coverages for various multistate environmental and toxic tort claims against the insured, and obtained a temporary restraining order from the state judge enjoining insured from proceeding with another subsequent action in Texas, the judge below improperly vacated the TRO on the insured’s motion since the court which first acquires jurisdiction has precedence in the absence of special equities and the judge failed to give proper weight to the slight benefits and many burdens of fractionalizing this complex litigation. [Approved for publication April 11, 1995.] JURISDICTION 24-2-5385 Alcides J. Irizarry, et al. v. Allen W. Eoff, et al., App. Div. (5 pp.) Since both New Jersey and Vermont adopted the Uniform Insurers Liquidation Act (which was developed to resolve difficulties encountered in the reorganization and liquidation of insurance companies with assets and liabilities in various states), Vermont, with jurisdiction over the rehabilitator of the defendant’s insurer, has exclusive jurisdiction over plaintiff’s claim on settlement proceeds. NEGLIGENCE 31-2-5386 Michael A. Bozza v. Forrest Burgener, et al., App. Div. (8 pp.) Where contractor’s employees were injured removing glass on premises of individual, who also happened to be a principal of the general contractor, the motion judge correctly denied that landowner had any liability to contractors since his status as landowner was not transformed by his connection to the general contractor, and landowner is not responsible for harm which occurs to a contractor’s employees as a result of the work that they were hired to perform. [Approved for publication April 11, 1995.] 31-2-5387 Dennis Therein, et al. v. Villaroy & Boch, et al., App. Div. (4 pp.) Since a landowner is under no duty to protect an independent contractor’s employee from the hazard created by the performance of the contract work, trial judge was correct in ruling that defendant owed no duty to employee of forklift-repair company who was injured when forklift reversed and crushed him against wall at defendant’s premises. TORTS 36-2-5388 Gladys Wehr v. Raritan Valley Community College, et al., App. Div. (9 pp.) (1) Plaintiff’s complaint for damages attributable to defendants’ breach of a discrimination suit settlement agreement was properly dismissed by the trial judge because she had failed to comply with the notice requirements of the Tort Claims Act, and plaintiff’s argument that the act doesn t apply because her action is based on breach of contract is not supportable. (2) The trial judge mistakenly refused to allow plaintiff to amend her complaint six months after it was filed to add another defendant, and therefore the matter is remanded for that purpose. WORKERS COMPENSATION 39-2-5389 Donald Porter v. Elizabeth Bd. of Education, App. Div. (10 pp.) (1) The compensation judge erred, both factually and legally, in dismissing the claim petition because he concluded that the petitioner didn’t meet his burden of proof on the issue of permanent disability, since there was proof of a large disc herniation and significant spinal cord compression, as a result of which petitioner had bone graft and fusion surgery with resultant scarring and significant restriction of motion. (2) The judge’s determination that petitioner’s injury arose out of (and not just in the course of) his employment is not supported by the record, and the matter must be remanded. [Approved for publication April 11, 1995.] CRIMINAL LAW AND PROCEDURE 14-3-5390 State v. Lois Broadley, Law Div. (6 pp.) In a case involving defendant’s conviction for driving while intoxicated, since the police department failed to establish reasonable procedures to provide defendant with an opportunity to exercise her right to an independent blood test, the Breathalyzer results must be suppressed, but since there was independent evidence of defendant’s guilt, her conviction is affirmed. [Approved for publication April 10, 1995.] 14-2-5391 State v. Juan A. Lugo, App. Div. (11 pp.) Since the defendant requested a charge on passion/provocation manslaughter as a lesser-included offense of murder, and there was evidence that could have provided a rational basis for the jury to acquit the defendant of the greater offense and convict him on the lesser, the trial court erred in not giving that instruction to the jury. 14-2-5392 State v. Byron A. Franklin, App. Div. (8 pp.) In a case involving the use of a stolen credit card, where defendant said it was his friend who used the card and not him, the identity of the author (and the handwriting) on the credit card receipt was a critical issue, and the trial judge erred in excluding a copy of the friend’s signed employment application since it was relevant and its exclusion prejudiced defendant’s right to a fair trial. 14-2-5393 State v. Efrain Rodriguez, App. Div. (12 pp.) Where defendant made certain statements admitting guilt during plea negotiations and the case then proceeded to trial because the judge rejected the plea, defendant’s contention that his constitutional right to testify at trial was impermissibly chilled (since his denials could result in a perjury prosecution) is not supportable and his conviction is affirmed. [Approved for publication April 11, 1995.] 14-2-5394 State in the Interest of G.H., a Juvenile, App. Div. (7 pp.) Where, on the basis of a second delinquency complaint, the crimes charged changed from felony murder, a strict liability crime, to purposeful or knowing murder, a specific intent crime, the time period in which to file a waiver motion commenced running from the filing date of the second delinquency complaint, and the trial judge erred in denying as late the state’s motion to waive jurisdiction in the Law Division and refer defendant to be tried as an adult on two murder counts. ADDITIONAL OPINIONS APPROVED FOR PUBLICATION: 26-2-5349 Jersey City Redevelopment Agency v. The Mack Properties Co. #3, et al. (April 7, 1995); 36-2-5354 F.A., et al. v. W.J.F., Jr., et al. (April 7, 1995); 36-2-5355 Dominick J. Gallo v. Princeton University, et al. (April 7, 1995); 14-2-5356 State v. Roosevelt Grey (April 7, 1995). -

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