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Vol. 3 No. 127 – JULY 10, 1995 STATE COURT CASES FAMILY LAW 20-1-6095 Debra Pascale v. James Pascale, Supreme Ct. (40 pp.) The parties’ custody arrangement, with the mother being the “primary caretaker,” and the father having liberal overnight visitations, is still a tradtitional one, and hence, although the parties’ income exceeds the $52,500 limit covered by the child support guidelines, the court should be guided by the parameters therein established in determining child support award; the mother, as the primary caretaker, should retain authority over the disbursal of the support that both parents must provide. HEALTH 22-2-6096 Beth Israel Hospital, et al. v. Essential Health Services Commission, et al., App. Div. (8 pp.) When hospitals challenged the methodology used to calculate their contributions to fund for “uncompensated care,” and the Essential Health Services Commission deferred to Department of Health and denied hospitals the opportunity to present other financial data that might alter the calculation of their assessments, the assessments are reversed and the matter remanded for further consideration. INSURANCE 23-2-6097 Annie Robinson, et al. v. Stuart B. Cundiff v. Allstate Ins. Co., et al., App. Div. (4 pp.) Where the insured, who purchased liability coverage on investment properties in addition to coverage at his residence, testified that he told his insurance agent to duplicate the policy when he purchased a new residence, but the new policy did not include coverage on the investment properties, the insurer owed coverage to the insured for injuries sustained by a third party on the investment property, since, if the jury believed the insured, under the “common knowledge” exception, no expert testimony would be required to establish a breach of duty and consequent liability on the part of the insurer. INSURANCE — UNINSURED MOTORISTS 23-2-6098 Nat’l. Union Fire Ins. Co. v. Camiel Mohammed, et al., App. Div. (8 pp.) An endorsement clause labeled “employees as insureds” in a commercial insurance policy issued to a construction company was nothing more than a declaration of coverage to employees who were on company business in vehicles not owned by the company, and the clause was not meant to extend UM coverage to a brother-in-law (and resident of household) of employee for injuries sustained when he was struck by a hit-and-run driver. LABOR AND EMPLOYMENT 25-2-6099 Thomas Brodowski v. Bd. of Review, et al., App. Div. (6 pp.) Board of Review’s denial of unemployment benefits to corporate facilities director of health system is reversed, since there was substantial credible evidence to support director’s claim that he was in immediate danger of termination as a result of threatened criminal prosecution for alleged bidding-procedure improprieties, and his resignation was not voluntary. LABOR AND EMPLOYMENT — MUSICIANS 25-2-6100 Jack Koza, t/a Trieste v. N.J. Dept. of Labor, App. Div. (11 pp.) Department’s final decision assessing over $32,000 against musician for unpaid unemployment and disability contributions, interest and penalties is reversed, since the evidence clearly supports the fact that musician, when he performed with others, acted as the equivalent of an agent or a foreman rather than as employer, and the other musicians were independent contractors under the “A,B,C test” set forth in N.J.S.A. 43:21-19(i)(6)(A)(B)(C). [Approved for publication July 10, 1995.] LANDLORD/TENANT 27-2-6101 Aldo Muros v. Maria Morales, App. Div. (4 pp.) Judge properly dismissed landlord’s complaint to evict tenants, alleging that they had stolen electricity from him and ripped up the floor to rewire the premises, since, although the landlord may have other civil or criminal remedies available with respect to the theft charge, theft from the landlord is not one of the specified grounds for eviction under the “eviction for-cause” statute, there was ample evidence that the premises were in bad repair and the proofs were inadequate to establish that any of the holes in the floor were produced by the tenants’ electrical lines. MUNICIPAL LAW 30-2-6102 Anthony M. Sellitto, Jr. v. Borough of Spring Lake Heights, et al., App. Div. (16 pp.) Although there are inconsistencies in two parts of the Local Lands and Buildings Law (N.J.S.A. 40A:12-1 to 12-30) dealing with municipalities’ leasing of lands with or without bidding, analysis of public policy and legislative intent makes it clear that the trial court improperly held that the borough’s lease to cellular phone companies was not subject to the public bidding requirements of Section 14, and, therefore the borough is restrained from enforcing the lease. 30-2-6103 WHS Realty Co. v. Town of Morristown, et al., App. Div. (39 pp.) Partial summary judgment, declaring unconstitutional a portion of the town’s garbage collection ordinance, was proper, since the ordinance unfairly excludes plaintiff’s 140-unit apartment complex from garbage service and such exclusion unfairly, and with no rational basis, discriminates against the dwellers of the apartments. [Approved for publication July 10, 1995.] NEGLIGENCE — COLLATERAL SOURCE RULE 31-2-6104 Teresa Thomas, et al. v. Toys ‘R’ Us, Inc., App. Div. (18 pp.) Since the essence of the collateral source rule is that plaintiff must disclose records of benefits from other sources so that the tort recovery can be offset against them, and since the plaintiff failed to provide the necessary support and documentation to prove that she had not received a double recovery, the judge did not err in his decision to apply an 80 percent copayment factor in molding the verdict to determine plaintiff’s medical benefits.[Approved for publication July 10, 1995.] TAXATION 35-2-6105 Bellemead Dev. Corp., et al. v. Borough of Roseland, App. Div. (5 pp.) Where developer and municipality had settled the developer’s challenge of the tax assessments on 10 properties for $1.3 million and, the day before a scheduled hearing, the developer attempted to rescind the settlement, the Tax Court erred in not holding the developer to the settlement and proceeding to adjudicate the appeal for one of the subject properties on the merits, and the entire original settlement is ordered reinstated. (Decided June 23, 1995.) WILLS, TRUSTS AND ESTATES — BONDS — ARBITRATION 38-2-6106 In the Matter of the Estate of Herbert P. Lash; Fireman’s Fund Ins. Co. v. Prudential-Bache Securities, Inc., et al., App. Div. (17 pp.) Where the administrator of an estate dissipated estate assets and the surety sued him, joining in the suit (on a theory of negligence) the securities broker with whom administrator had opened an account, the surety’s motion for summary judgment when the broker tried to compel arbitration of the claim was properly denied, since the surety’s claim against the broker was separate and distinct from any claim of the Estate, the brokerage agreement (which contained an arbitration clause) was never incorporated into the surety bond, the broker never sought to bind the surety to the brokerage agreement, nor sought the surety’s participation, and, therefore, the surety, never having entered into an agreement to arbitrate, cannot be compelled to do so. CRIMINAL LAW AND PROCEDURE 14-2-6107 State v. Donald Brown, App. Div. (27 pp.) In a murder case, (1) where the police searched the “porter’s closet” with the consent of the superintendent of the apartment building and found evidence incriminating the building’s porter (defendant), motion to suppress the evidence on grounds that porter’s reasonable privacy expectation had been violated was properly denied, since other employees had a key to the closet, the room was for general use and any expectation of privacy was minimal, and (2) although it was error not to suppress defendant’s oral statement (made before he had received his Miranda warnings) that “it was an accident,” the fact that he signed a written confession after receiving the warnings makes the error harmless. [Approved for publication July 10, 1995.] ADDITIONAL OPINION APPROVED FOR PUBLICATION: 12-2-2362 Milton Mitzner v. Lights 18 Inc., et al. (Decided Jan. 21, 1994.)

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