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Vol. 2, No. 27 DECISIONS RELEASED FEBRUARY 16, 1994 TAXATION 35-2-2635 Richard’s Auto City, Inc. v. Director, Division of Taxation, App. Div. (18 pp.) Where net operating losses generated by a corporation for its tax year were claimed as a corporation business tax by a second corporation under the state Corporation Business Tax Act, N.J.S.A. 14A:10-6, after the first corporation had merged into the second corporation, director erred in not allowing the deduction, since he based his decision on N.J.A.C. 18:7-5.13(b), which improperly expanded the limiting aspects of N.J.S.A. 54:10A-4(k)(6)(D), which would disallow the deduction where the primary purpose of the corporation’s transfer was the carry-over of the net operating loss, which had not occurred in this case. [Approved for publication on Feb. 14, 1994]. ADMINISTRATIVE LAW AND PROCEDURE – AUTOMOBILES 01-2-2636 Liberty Lincoln Mercury v. Ford Motor Co., et al., App. Div. (6 pp.) Chancery court properly dismissed plaintiff’s application for an interlocutory injunction compelling defendant Ford Motor Co. to give it written notice under the Motor Vehicle Franchises Act that Ford had granted a franchise to co-defendant Regency Motors, since initial subject matter jurisdiction rested solely with the Motor Vehicle Franchise Committee. ATTORNEY/CLIENT – NEGLIGENCE 04-2-2637 Circle Chevrolet, et al. v. Giordano, Halleran & Ciesla, et al., App. Div. (21 pp. incl. dissent) Where defendants, counsel and accountants, did not properly examine formula created by landlord’s counsel to calculate a rental increase the plaintiff automobile dealership had to pay, trial judge properly dismissed dealership’s professional negligence suit against both defendants under the entire-controversy doctrine, since the cause of action against both defendants accrued before the settlement of the litigation instituted to reform the rental increase. CONTRACTS 11-2-2638 Brendon Connors v. Sexton Studios, Inc., App. Div. (6 pp.) Where customer sued photo developer and photo developer’s counsel attended calendar call and customer was not present when his particular case was called for trial because he was delayed in traffic but attended the end of the call, trial judge erred in dismissing customer’s complaint with prejudice, since plaintiff’s conduct was not egregious and did not warrant such a severe sanction. GOVERNMENT – EDUCATION 21-2-2639 Board of Education of the Township of Colts Neck, et al., v. Board of Education of the Freehold Regional High School District, et al., App. Div. (15 pp.) Where voters through a binding referendum had authorized the building of a new high school, board’s refusal to build the school was not justified, since the board did not demonstrate extraordinary supervening events, warranting the nonadherence to the voters’ decision. INSURANCE 23-2-2640 Helen E. Adams and Jerome Adams v. Orlando Alvarado and Ramon Gonzalez, App. Div. (6 pp.) Where plaintiff suffered from temporay spasms and tenderness in her back and plaintiff’s denture was broken in an auto accident, trial judge properly dismissed plaintiff’s claim, since plaintiff’s injuries did not satisfy the verbal threshold requisites. WORKERS’ COMPENSATION 39-2-2641 Doris George v. Ravjo, Inc. and Commissioner of the Department of Labor, et. al., App. Div. (9 pp.) Where employee –who was found to be partially disabled from job-related injury — first reopened claim alleging increased disability, then filed a claim against subsequent employer because her new job supposedly aggravated her pre-existing condition, and both claims were joined using the “odd lot” doctrine under which she claimed 100 percent disability, the case was remanded after denial of new benefits, since the trial court failed to consider the requisite factors to properly determine if the employee was totally disabled, under the “odd lot” doctrine. CRIMINAL LAW AND PROCEDURE 14-2-2642 State v. Allan Oreszak, App. Div. (7 pp.) Where defendant was found guilty of knowingly manifesting an extreme indifference to human life when he pointed a firearm at his stepson, trial court erred in not charging the jury on the lesser-included offense of simple assault, since if there was a rational basis in the evidence, as in this case, a lesser-included charge may be considered even if the facts at issue do not literally comport with one of the statutory categories in N.J.S.A. 2C:1-8d. CRIMINAL LAW AND PROCEDURE – EVIDENCE 14-2-2643 State v. Larry Nicholas, App. Div. (7 pp.) Where defendant had threatened a man with a gun who had insulted defendant’s girlfriend, trial judge’s admission of defendant’s written statement from an earlier case was harmless error — a statement in which defendant indicated that he had beaten a man with his fists for insulting his girlfriend but would not attack the man with a weapon — even though the trial judge instructed the jury that statement was admitted only to show defendant’s motive and did not instruct on its relevance to defendant’s credibility.

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