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Vol. 2, No. 36 DECISIONS ISSUED MARCH 2, 1994 TAXATION 35-5-2731 Texaco, Inc. v. Director, Division of Taxation, Tax Ct. (7 pp) Where taxpayer’s claim for corporate tax refund was pending for 12 years due to litigation, and taxpayer owed state money, tax court held that tax division director should have applied taxpayer’s refund to amounts due to the state due to overpayment. TAXATION – BANKING 35-2-2732 Resolution Trust Corp. (RTC) As Receiver for City Savings, F.S.B. v. William Lanzaro, Sheriff of Monmouth County, App. Div. (Trial court and App. Div. 23 pp.) Where RTC refused to pay sheriff’s fee for conducting property sale, claiming that it is exempt from payment of any taxes and the sheriff’s fee is a tax, trial court properly determined that the sheriff’s fee is not a tax, since the sheriff’s office in New Jersey does not have the power to tax and the fee charged for auctioning property is designed to support the sheriff’s office. [Approved for publication on Feb. 28, 1994.] ATTORNEY/CLIENT – JURISDICTION 04-2-2733 Susan Lopez v. John L. Pitula, App. Div. (13 pp.) Where New York attorney, not licensed to practice in New Jersey, challenged jurisdiction of district fee arbitration committee and claimed that he did not practice in this state, trial court erred in affirming the arbitration committee award, since the state Supreme Court did not intend for the district fee arbitration committee’s jurisdiction to extend to an attorney not licensed or authorized to practice in this state. CIVIL PROCEDURE 07-2-2734 Ambrose Company, Inc. et al. v. The Borough of Ridgefield, The Hackensack Meadowlands Development Commission (HMDC) et al., App. Div. (5 pp.) Where plaintiff — who contracted to renovate a building for Neuman Distributors, Inc. settled suit with Neuman for nonpayment of bills — filed a tort claims act notice after finding out that it was dismissed from Neuman’s job because of complaints by defendants, Ridgefield and HMDC, trial court properly dismissed complaint, since suit was barred by entire controversy doctrine. CIVIL PROCEDURE – WORKERS’ COMPENSATION 07-2-2735 David A. Prowker, Sr. v. Bass Transportation Co., Inc., App. Div. (10 pp.) Where employee who was injured by defective equipment at work was awarded a workers’ compensation claim and filed a civil suit against several parties including his employer, trial court properly dismissed complaint against employer, under doctrine of collateral estoppel. DEBTOR/CREDITOR 15-3-2736 Resolution Trust Corp. (RTC) for Prospect Park Federal Savings Bank v. Berman Industries, Inc., et al., Law Div. (12 pp.) Where defaulted property was auctioned off for far less than actual value and RTC-mortgagee filed deficiency suit against one mortgagor who personally guaranteed mortgage, trial court held that mortgagor is entitled to a fair-market value hearing prior to entry of judgment on damages so the RTC would not collect a windfall. [Approved for publication on Feb. 28, 1994.] INSURANCE – AUTOMOBILES 23-2-2737 Almeena Bowman, et al. v. Veronica Tucker, App. Div. (5 pp.) Where plaintiff’s knee and back were injured in an auto accident, trial court erred in dismissing plaintiff’s claim for not meeting the verbal threshold, since plaintiff had presented evidence that injuries had curtailed her daily activities; for example, she could no longer take gym at school and walked with a noticeable limp. INSURANCE – HEALTH 23-2-2738 Estate of G.E. v. Division of Medical Assistance and Health Services, App. Div. (15 pp.) Even though court entered a qualified domestic relations order for spouse’s pension checks to be applied toward plaintiff’s living expenses and spouse’s Medicaid application was denied where spouse’s income including pension exceeded monetary threshold, director’s denial of Medicaid benefits to spouse still was proper, since it was consistent with federal law and based upon a reasonable construction of New Jersey’s Medicaid regulations. LAND USE 26-2-2739 Kali Bari Temple and Birenda Nath Ganguly v. Board of Adjustment of the Township of Readington, App. Div. (14 pp.) Where plaintiff wanted to use portion of house as a religious temple and other part as residence, in a residential zone where religious uses were only permitted upon grant of a special exception, board erred in denying plaintiff’s variance, since plaintiffs’ proposed ancillary religious use of residential property easily satisfied positive criteria of N.J.S.A. 40:55D-70d. NEGLIGENCE 31-2-2740 Fanny DeFrance v. Twp. of Belleville and Anna M. Gino, App. Div. (4 pp.) Where plaintiff was injured from fall on sidewalk that had been raised up by tree roots, trial court properly dismissed complaint against both defendants, the landowners and the township, since (1) township had adopted ordinance for maintenance of shade trees, making landowner immune from liability, and (2) there was no evidence that township had planted tree or had actual or constructive notice of its condition. 31-2-2741 William Drake, as Executor of the Estate of Madeline Drake v. George Lakatos and Madeline Lakatos, App. Div. (5 pp.) Where decedent was injured when she fell at defendants’ home on floor section which was two and one-half inches lower than rest of floor, trial court properly held that defendants’ did not breach duty of care owed to a social guest. PRODUCT LIABILITY – TORTS 32-2-2742 Birgith Shorter v. Owens Illinois, Inc., et al., App. Div. (11 pp.) Where plaintiff sued defendants since her husband died from exposure to asbestos that may have been manufactured by defendants, trial judge erred in failing to ascertain from the jury whether it adopted plaintiff’s or defendants’ theory as the cause of husband’s death, since the jury instruction must clearly explain each party’s burden of proof and the bases for jury’s decision must be revealed in verdict. PUBLIC EMPLOYEES 33-2-2743 John A. Canavera, Jr. v. Township of Edison, App. Div. (6 pp.) Where police officer returned to force after being on disability for eight years, trial court properly held that police officer was not entitled to seniority, since the township chose not to adopt the Civil Service Act and no statute requires township to cumulate prior and current service in determining a police officer’s seniority rights when returning from disability. PHYSICIAN/PATIENT 29-2-2744 Charles Harris, M.D. v. Kimball Medical Center, App. Div. (6 pp.) Where doctor, by not having staff privileges, could not admit patients to hospital and as a result supposedly lost patients, and during trial, hospital conceded that it was negligent in processing doctor’s application for staff privileges, trial court erred in not allowing doctor to show that he was qualified for hospital staff privileges in order to demonstrate that hospital’s actions were proximate cause for doctor’s financial injury. CRIMINAL LAW AND PROCEDURE 14-2-2745 State v. Anthony Castaldo, App. Div. (9 pp.) Where defendant was charged with welfare fraud for collecting welfare and other benefits while supposedly receiving compensation from prior employer and unemployment benefits, trial court’s failure to instruct jury that it was required to calculate monetary amount involved in theft constituted reversible error, since monetary amount is an element of offense. 14-2-2746 State v. Jake Newmones, App. Div. (6 pp.) Where defendant was charged with purposely or knowingly causing bodily injury to victim with a deadly weapon, a bat, where victim did not require medical treatment, and during trial conference defense counsel asked for submission of disorderly persons charge, trial judge erred in not granting request, since barring a jury from considering a lesser-included offense for which there is a rational basis creates a fatal defect in conviction of greater offense.

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