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Vol. 2, No. 41 DECISIONS ISSUED MARCH 11, 1994 TAXATION 35-2-2807 Lawrenceville Garden Apartments v. Lawrence Township, App. Div. (4 pp.) Where apartment owner filed tax appeal directly with tax court and then parties settled matter, tax court properly dismissed apartment owner’s complaint even after settlement was reached and later withdrawn, since apartment owner pursuant to N.J.S.A. 54:3-21 filed appeal late with the tax court; complaint would have been timely if filed with county board of taxation. CONTRACTS 11-2-2808 Michael Bucino v. Frank Bucino and Elaine Bucino, App. Div. (5 pp.) Where plaintiff-father alleged that his defendant-son did not give father his share of profits from sale of jointly owned property and insurance business, trial court properly granted son’s motion for voluntary dismissal, since after court reviewed father’s evidence, it determined that father failed to present a prima facie case. INSURANCE 23-2-2809 Progressive-Caip-Eds/NJ v. T.I.V. Enterprises, et al., App. Div. (12 pp.) Where plaintiff-insurer provided commercial insurance for company’s truck fleet and, after inspection of company’s premises, insurer raised premium payments and later canceled coverage for non-payment of premium increase, trial court improperly dismissed insurer’s complaint for additional insurance premium, since factual issues existed and discovery was not complete. LABOR AND EMPLOYMENT 25-2-2810 Glenn Ross v. Passaic Radiology Associates, P.A., et al., App. Div. (6 pp.) Where employee sued employer in corporate and individual capacity for breach of implied covenant of good faith and fair dealing for terminating him after employment contract expired, trial court erred in dismissing complaint against corporate officers individually, since when corporate officers commit a fraud under cover of a corporation, where they will receive personal gain, “they are bound to answer personally for their wrongful acts.” LAND USE 26-2-2811 James R. Ientile, Inc. v. Zoning Board of Adjustment of the Township of Colts Neck and the Township of Colts Neck, App. Div. (11 pp. incl. dissent) Where plaintiff rented building on farm which was located in area zoned for farming and in which plaintiff repaired and serviced its heavy equipment, board correctly decided tbat plaintiff’s use of the property was improper, since plaintiff’s use of building was not incidental and subordinate to farm use. REAL ESTATE – ENVIRONMENT 34-2-2812 F & C Pardun Realty v. Gulf Oil Corp., et al., App. Div. (4 pp.) Where landowner’s property was contaminated by petroleum products leaking from underground storage tanks, and oil company sold fuel to plaintiff and serviced equipment ancillary to tanks for more than 20 years, trial court properly dismissed landowner’s complaint against oil company, since landowner was not able to prove that oil company owned tanks. CRIMINAL LAW AND PROCEDURE 14-2-2813 State v. Hashona Clark, App. Div. (15 pp.) Where, after defendant was apprised of his rights and told that his palm print was found in jewelry store, he gave a taped confession admitting that he helped his brother in a robbery at the store, and, even though trial court erred by failing to instruct jury about credibility of defendant’s custodial statement, it was not reversible error, since overwhelming evidence was presented at trial, which clearly established defendant’s guilt. 14-2-2814 State v. Michael Elliott, App. Div. (7 pp.) Where defendant was found guilty of robbing an eldery woman in her house, trial court properly admitted as an “excited utterance” police officer’s testimony about what defendant told him within a few minutes after crime occurred, since defendant stated that he was shaken up before he gave police officer his statement, and other criteria under N.J.R.E. 803(c)(2) were met. 14-2-2815 State v. Wilfredo Flores, App. Div. (11 pp.) Where prosecutor during summation kept talking about one packet of white powder that had not been tested by state police lab to prove that it was cocaine, and asked jury to compare that packet to others that had been tested proving that they contained cocaine, prosecutor’s comments were not reversible error, since any prejudicial effect that the prosecutor’s statements may have had were cured by trial court’s instructions. 14-2-2816 State v. Kevin Lambert, App. Div. (12 pp.) Where defendant who had been under a suicide watch in jail and was taking a drug used for treatment of mental disorders requested a psychiatric evaluation so court could determine if he was competent to stand trial or able to raise a diminished capacity defense, trial court erred in not granting defendant’s request, since if there is any bona fide doubt as to competency, defendant must undergo a psychiatric evaluation. 14-2-2817 State v. Daniel Nwobu, App. Div. (4 pp.) Where county pretrial intervention program director rejected defendant’s application into the program, and on appeal trial court admitted defendant to program contrary to state’s position, trial court erred in rejecting director’s decision, since, absent adequate factual basis or where director’s reasons are pretextual, court may not substitute its judgment for that of the director.

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