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VOL. 3, NO. 5 DECISIONS RELEASED JANUARY 9, 1995 TAXATION 35-5-4677 David R. Allen v. Dir., Div. of Taxation, Tax Ct. (11 pp.) Where New Jersey residents, who had capital loss deductions, some of which were only applicable in New York and others only in New Jersey, contested calculation of the numerator of the resident credit fraction prescribed in N.J.S.A. 54A:4-1(b), tax court held that only the greater of the capital loss that residents incurred in New York or New Jersey is subtracted from income, since deductions from income cannot exceed the total amount of deductions in that state in which the total deductions are greater. (Approved for publication Jan. 9, 1994.) 35-5-4678 Geeming Chin v. Dir., Div. of Taxation, Tax Ct. (11 pp.) Where taxpayer claimed that both New York and non-New York source income should be used in the numerator of the fraction used to determine the resident credit under N.J.S.A. 54A:4-1, tax court held that director properly excluded the non-New York income from the numerator, since it was not taxed in New York. (Approved for publication Jan. 9, 1994.) ENVIRONMENT – NEGLIGENCE 17-2-4679 David Bahrle, et al. v. Exxon Corp., App. Div. (35 pp.) Where homeowners sued oil companies and successive gas station owners for allegedly polluting their groundwater, trial court erred in allowing one oil company to produce expert testimony that second owner’s activity was a source of contamination, since allowing the testimony could have invited the jury to conclude that the second owner was the only source of contamination, despite homeowners’ contrary proofs. INSURANCE – AUTOMOBILES 23-2-4680 Julio Perez v. Melvin Grant, App. Div. (5 pp.) Where plaintiff injured his back in a car accident, trial court erred in dismissing the complaint for failure to meet the verbal threshold, since factual questions existed as to whether plaintiff presented sufficient proof of a significant limitation of use of a body function or system. 23-2-4681 Diedra Sanders, et al. v. Michael R. Fields, et al., App. Div. (5 pp.) Where plaintiff injured her back in a car accident, trial court properly dismissed the complaint for failure to meet the verbal threshold, since the muscle spasms only lasted for four months after the accident. LANDLORD/TENANT 27-2-4682 Grandal Enters. Inc. v. Borough of Keansburg, App. Div. (6 pp.) Where landlord sued tenant for reimbursement for real estate taxes it paid on a parking lot, pursuant to a lease agreement, trial court erred in dismissing the complaint on grounds that the parking lot was tax exempt, since a factual question existed as to whether the property was really tax exempt. WORKERS’ COMPENSATION 39-2-4683 Barbara Gojko v. Team Plastics, Inc., App. Div. (14 pp.) Where employee, who hurt her back after lifting a box on the job, sued for disability benefits, workers’ compensation judge erred in denying coverage based on inadequate proofs presented by both parties, since the proofs were entitled to little weight in the absence of credible witnesses’ sworn testimony. CRIMINAL LAW AND PROCEDURE 14-2-4684 State v. Fitzroy Dillon, App. Div. (7 pp.) Where defendant was convicted of heroin distribution, trial judge properly admitted the defendant’s mug shot into evidence with the identification numbers concealed, since defendant’s identification was at issue, and the judge gave a proper limiting instruction to the jury. 14-2-4685 State v. Kevin Gilliard, App. Div. (6 pp.) Where defendant was convicted of joyriding, trial court properly denied a motion to recuse prosecutor’s office on grounds that his defense attorney had become an assistant prosecutor, since the Attorney General’s Office determined that recusal was unnecessary, and the former defense attorney was isolated from the case. 14-2-4686 State v. Kyle Herrill, App. Div. (5 pp.) Where a jury found defendant guilty of conspiracy to possess cocaine with intent to distribute, but were deadlocked on remaining counts, trial court erred in failing to instruct the jury as to the finality of a partial verdict. 14-2-4687 State v. Alfred M. Mabey, Jr., App. Div. (5 pp.) Where defendant, who was convicted in municipal court of driving while his license was suspended, claimed that he was never notified of the suspension, Superior Court properly affirmed the conviction, since the Department of Motor Vehicles satisfied due process by mailing the suspension notice to defendant’s last known address.

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