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VOL. 2, NO. 133 DECISIONS RELEASED JULY 22, 1994 TAXATION 35-5-3833 Bellemead Dev. Corp. v. Roseland Borough, Tax Ct. (18 pp.) In office building complex owner’s contest to local property tax assessment, (1) equity build-up adjustment — purporting to allow for principal reduction over the life of the mortgage and a corresponding reduction of the investor’s risk over time — is an inappropriate component of determining capitalization rate for property-valuation purposes and (2) since the tax ratio applied exceeded the upper level of the range promulgated by the director of the Division of Taxation, a rebate is appropriate. (Decided April 6, 1994) [Approved for publication] DEBTOR/CREDITOR 15-2-3834 Commerce Bank, N.A. v. Borden Realty Co., Inc., and Edward H. Parvin, et al., App. Div. (6 pp.) Sellers of realty company, who personally guaranteed corporate loan and were held liable on the note by the lender, had recourse against purchaser of company who agreed — as part of the contract of sale — to assume all corporate debts. 15-2-3835 Trico Mortgage Co., Inc. v. Jorge Forero and Rosa Forero, App. Div. (12 pp.) Trial court properly held that Secondary Mortgage Loan Act does not apply where a new primary mortgage loan — obtained to refinance two existing mortgages — is assigned to a secondary mortgage loan company, since the new mortgage became a first mortgage on the property. INSURANCE – AUTOMOBILES 23-2-3836 Thomas G. Birkner v. Jaime Gallo, App. Div. (4 pp.) Trial court properly dismissed complaint for failure to meet verbal-threshold criteria, since no expert was adduced to prove that plaintiff’s back injury, shown in an x-ray, was caused by an automobile accident. 23-2-3837 Catherine J. D’Allessandro v. P.F.L. Life Ins. Co, et al., App. Div. (5 pp.) Where insured was killed while preparing to tow a car on a roadside, trial court properly held that mother was entitled to death benefits under his accident policy, since he was a vehicle operator, not a pedestrian. JURISDICTION – DEBTOR/CREDITOR 24-2-3838 Crestmont Fed. Savings & Loan Assn v. Nadler, Philopena & Assocs., et al. and Clock Tower Vista Assocs., et al., App. Div. (9 pp.) Fact that New Jersey bank lent money to defendant developer to build a housing project in Connecticut, designed by defendant New York architects, did not create sufficient ties with New Jersey to support jurisdiction over the New York defendants. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3839 Alta Howard v. Alfred Greenwald, M.D., et al., App. Div. (24 pp.) Where a diabetic patient who, after undergoing abdominal plastic surgery, developed badly infected wounds, no-cause verdict was appropriate, since plastic surgeon did not deviate from acceptable medical standards. TORTS 36-2-3840 Armando DiBonaventura v. Anthony Cervino, Sanitary Constr. Co., Inc., et al., App. Div. (8 pp.) Trespass occurred where township’s contractors, while installing a sewer on plaintiff’s property, dumped debris on plaintiff’s property. 36-2-3841 Div. of Envtl. Quality, Dep’t of Envtl. Protection and Energy, v. McCormack Aggregates, App. Div. (7 pp.) The DEPE properly issued administrative orders and penalties to company for emission of sand particles into the air, since the DEPE proved the violations by a preponderance of the evidence. 36-2-3842 Raul Giron v. Saturnino Scull and Dulce Scull, App. Div. (4 pp.) Where a workman is injured on a homeowner’s premise as a result of the very defect or condition he was invited to remedy, New Jersey law creates exception to usual rule of property owner’s liability to business invitees. CRIMINAL LAW AND PROCEDURE 14-2-3843 State v. Luis Columbie, App. Div. (4 pp.) Where defendant was convicted of murder, trial court erred in denying motion for post-conviction relief without an evidentiary hearing, since defendant was not given an opportunity to prove that defense counsel failed to call a crucial eyewitness at trial. 14-2-3844 State v. Victor Kubiak, App. Div. (12 pp.) Where defendant was convicted of murder, trial judge’s failure to instruct the jury to determine if defendant’s out-of-court statements were credible was harmless error, since the voluntariness of defendant’s statements was not in issue, and the jury did not find any of the witnesses’ testimony about his statements incredulous. 14-2-3845 State v. Arnoldo Manresa, App. Div. (5 pp.) Where victim, testifying at trial, failed to describe handgun that defendant had threatened her with, trial court properly held that omission in testimony did not constitute a prior inconsistent statement for which she could be impeached, since it was not natural for her to describe the gun, when not asked to describe it.

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