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Vol. 3 No. 223 Decisions Released Nov. 27, 1995 STATE COURT CASES DEBTOR/CREDITOR 15-2-7114 Convention Services, Inc. v. Showtime Exhibit Builders, Inc., App. Div. (3 pp.) Summary judgment on book account claim was incorrectly granted to plaintiff who plaintiff failed to establish all of the requisites of a such an account, and the invoices attached to the complaint are, by themselves, insufficient. FAMILY LAW 20-2-7115 Albert F. Chestone v. Rose B. Chestone, App. Div. (17 pp.) Since trial judge failed to apply or to interpret federal regulations that control the husband’s federal Civil Service pension and may have predicated his decision to award the wife counsel fees and costs upon an erroneous conclusion as to husband’s income, the order is reversed on both counts. [Approved for publication Nov. 27, 1995.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-7116 J.G. v. R.G., App. Div. (3 pp.) While the acts committed by the wife are not in and of themselves serious matters, they are — when taken in combination with the purpose to harass and the explosiveness of the domestic situation — properly held to constitute domestic violence. INSURANCE — VERBAL THRESHOLD 23-2-7117 Sebastian Pisano, Jr. v. Linda Fiumefreddo; Sebastian Pisano, Sr., et al. v. Linda Fiumefreddo, et al., App. Div. (7 pp.) Where plaintiffs’ depositions were vague as to the impact of their injuries on their lives, but their certifications submitted in opposition to the defendants’ summary judgment motions were more concrete, the judge erred in discrediting the certifications and granting summary judgment, since the discrepancy is a function for the jury to weigh. LABOR AND EMPLOYMENT — POLICE 25-2-7118 State Troopers Fraternal Assn. of N.J., Inc., et al. v. State of N.J., et al., App. Div. (5 pp.) In suit for retroactive pay increases brought by troopers who retired after expiration of prior collective bargaining agreement but before the new agreement became effective, trial judge’s failure to make a critical finding of fact as to the state police’s prior practice in such situations is cause for remand. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7119 Patricia A. McCann v. Bd. of Review, App. Div. (5 pp.) Petitioner’s election of a retirement incentive package in the face of a potential layoff did not constitute an involuntary separation from employment, and the fact that she was mistakenly advised by her employer that she would be eligible for unemployment benefits is immaterial, since it was only one of the factors she considered in accepting the retirement package. NEGLIGENCE — WORKERS’ COMPENSATION 31-2-7129 Violet M. Chartier v. Richard P. Allen, et al., App. Div. (4 pp.) Trial judge correctly dismissed negligent suit by employee who fell in a public area of the employer’s premises, finding the “dual capacity” doctrine inapplicable, since the employee had been compensated for her injuries through the remedy of workers’ compensation and the employer owed her no separate and distinct duty of care as a landowner. PUBLIC EMPLOYEES 33-2-7130 In the Matter of Charles P. Cable, App. Div. (5 pp.) Dept. of Personnel did not act arbitrarily or capriciously when it refused to grant appellant lateral title or demotional title rights after he was laid off; however, since the record does not address one of the titles which appellant states that he held and through which he alleges such rights, the matter is remanded. 33-2-7131 In the Matter of Henry Setkiewicz, etc., App. Div. (5 pp.) Where errors had been discovered in the scoring of a promotional examination — administered by the N.J. Dept. of Personnel for the position of Deputy Fire Chief of Hoboken — the request of an unsuccessful candidate to access the successful candidate’s examination and scoring key was improperly denied on the basis of confidentiality. PUBLIC EMPLOYEES — RETIREMENT 33-2-7132 In the Matter of David C. Summers, M.D.; David C. Summers, M.D. v. Jersey City State College, App. Div. (10 pp.) Doctor who did not meet the statutory threshold of 20 years of service in any one “retirement account” (since service credits in two positions cannot be accumulated to meet the threshold) was properly denied a veteran’s pension. WORKERS’ COMPENSATION 39-2-7133 Pearl McCarthy v. Quest International Co., App. Div. (7 pp.) Where a company picnic took on a heightened importance for two newly-merged companies to get to know each other in order to foster a better working relationship, and bookkeeper was specifically compelled by her superiors to attend and participate in a tug-of-war, the injuries she sustained in the tug-of-war were compensable. [Approved for publication Nov. 27, 1995.] 39-2-7134 Daniel Cirasella v. GAF Corp., App. Div. (5 pp.) There was substantial credible evidence for the compensation judge to conclude that petitioner failed to sustain his burden of proving that his bilateral carpal tunnel syndrome arose out of and in the course of his employment. CRIMINAL LAW AND PROCEDURE 14-2-7135 State v. Edward J. Gallagher, App. Div. (25 pp.) Since the trial judge erred in his definition of penetration in the jury charge on aggravated sexual assault by anal penetration, and failed to charge the lesser included offenses, the conviction for that offense is reversed. [Approved for publication Nov. 27, 1995.] 14-2-7136 State v. Theodore Vanderveer, App. Div. (8 pp.) An officer, who by training or experience can recognize burnt marijuana by smell, and who has a justifiable basis for believing that what he smelled in a confined outdoor porch space was such an odor, has sufficient probable cause to conduct a warrantless search of the persons in the immediate area from where the smell has emanated, and motion to suppress was improperly granted. [Approved for publication Nov. 27, 1995.] 14-2-7137 State v. Samuel Carter, App. Div. (8 pp.) Even if probable cause to search the vehicle existed when it was seized, once the police had determined that neither the defendant nor his car had been involved in a suspected armed robbery, and defendant was released, the police had no further right to search the car without a warrant, and the defendant’s motion to suppress evidence of contraband found in the car should have been granted. 14-2-7138 State v. Antwan Eden, App. Div. (10 pp.) Defense counsel’s questioning of defendant, which elicited his juvenile court record, together with counsel’s failure to object to accomplice’s hearsay testimony, which was the only evidence against defendant, constituted ineffective assistance of counsel, and robbery conviction is reversed.

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