26-1-1704 Borough of Saddle River v. 66 East Allendale, L.L.C., Sup. Ct. (LaVecchia, J.) (59 pp., including dissent by Albin, J.) The jury heard evidence about the probability of a zoning change that should have been ruled on by the judge in advance and outside of the jury’s presence. A new trial on just compensation is required because the jury was allowed to hear speculative evidence that undermined the soundness of its property-valuation determination. [Decided Oct. 21, 2013.]
27-1-xxxx State v. Hinton, Sup. Ct. (Patterson, J.) (53 pp., including dissent by Albin, J.) Where, as here, an eviction proceeding has advanced to the point that a warrant of removal has been executed, a tenant does not have a reasonable expectation of privacy in the premises. Therefore, the police action in Hinton’s apartment was not a “search” under either the Fourth Amendment of the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution. [Decided Oct. 24, 2013.]
04-2-xxxx Hedden v. Kean University, App. Div. (Parrillo, P.J.A.D.) (26 pp., including dissent by Guadagno, J.A.D.) We hold that an email from the head women’s basketball coach at Kean University to the university’s general counsel was protected by the attorney-client privilege even though she later disclosed it to the NCAA during its investigation into certain practices of the university’s athletic program. In the organizational context, the university is considered the client and holder of the privilege, which cannot be waived by an employee who is neither an officer nor director of the entity, and who was not acting under the direction or with the express approval of the university in releasing the document. Judge Guadagno dissents, finding, based on his review, that the email was not seeking legal advice from counsel; was not made in confidence because another university employee was copied on the document; and that, in any event, any privilege that may have attached was waived when the university failed to object to the employee’s disclosure to the NCAA. [Decided Oct. 24, 2013.]
35-5-1705 Marina District Development Co., L.L.C. v. City of Atlantic City, Tax Ct. (DeAlmeida, P.J.T.C.) (64 pp.) The court adopts the income approach to determine the true market value of an Atlantic City casino-hotel. In addition, the court held that when determining net operating income under the income approach an appraisal expert’s averaging of the subject property’s annual net operating income over a four-year period lacks credibility, as averaging does not reflect the expert’s weighing of various factors having an impact on the subject property’s future earning potential. In addition, the court held that failure to extract business value through application of a hypothetical management fee inflated expert’s opinion of value under income approach. The court adopted the opinion of one of plaintiff’s appraisal experts. As a consequence, assessments on subject property reduced for two tax years. [Decided Oct. 18, 2013.]
35-5-xxxx Fairfield Dev. c/o 46 Auto Imports v. Totowa Borough, Tax Ct. (Bianco, J.T.C.) (6 pp.) On defendant Totowa Borough’s motions to dismiss plaintiffs Fairfield Development and Anton & Simon Schweighardt’s complaints for failure to respond to information requests under N.J.S.A. 54:4-34 (Chapter 91), the Tax Court found that Totowa failed to comply with the requirements of Chapter 91 and thus was not entitled to the dismissals. In particular, Totowa failed properly to include a copy of the statute, as required by the plain language of Chapter 91. [Decided Sept. 30, 2013.]
35-5-xxxx Hill v. Dir., Div. of Taxation, Tax Ct. (Sundar, J.T.C.) (17 pp.) Defendant’s determination to seek recovery of erroneously paid gross income tax (GIT) refunds to plaintiffs was correct. Nonresident plaintiffs contended that defendant was estopped from seeking recovery of refunds because their nonresident GIT returns had reported all of the distributed trust income, and defendant issued refunds after examination of such returns. Plaintiffs also argued estoppel based on prior telephonic advice from defendant that nonresidents are not subject to the GIT, and because plaintiffs were time-barred from seeking credit for the GIT in Pennsylvania where they reside. However, plaintiffs’ nonresident GIT returns did not report the amount of the New Jersey source trust income. Further, plaintiffs did not dispute that the distributions paid to them by resident trusts were subject to GIT. Moreover, the defendant’s refund payment by its accounting section was not based on a substantive judment and determination of the merits of refund sought on plaintiffs’ GIT returns. Therefore, the defendant was not estopped from seeking the timely initiated recovery of the erroneous refunds. Defendant’s motion for summary judgment is granted and plaintiffs’ cross-motion for summary judgment is denied. [Decided Oct. 23, 2013.]
36-2-1730 Arroyo v. Durling Realty, L.L.C., App. Div. (Sabatino, J.A.D.) (11 pp.) In this negligence case, plaintiff was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of defendant’s convenience store. The trial court granted defendant summary judgment, which we affirm. We reject plaintiff’s argument that defendant is liable under the “mode of operation” theory of liability recognized in Nisivoccia v. Glass Gardens Inc., 175 N.J. 559, 563 (2003), and in other customer self-service cases. The present case is dissimilar to the successful mode-of-operation cases in several respects. In particular, the phone card had to be presented to a cashier after it was taken from a self-service rack, making the nexus between the rack and the eventual presence of the card on the sidewalk extremely attenuated. Also, the card stored minutes or value and thus was not debris that would invariably be discarded when its purchaser left the store. It cannot be reasonably asserted that the store’s “method of doing business,” see Nisivoccia, 175 N.J. at 564, created the sidewalk hazard. What the purchaser chose to do with the card on leaving the store was not an integral feature of the store’s retail operation. Hence, ordinary principles of premises liability, including plaintiff’s obligation to show defendant’s actual or constructive notice of a dangerous sidewalk condition, apply. The trial court properly rejected plaintiff’s proffered report from a construction consultant, which included criticisms of defendant’s maintenance and trash-removal practices. The expert’s criticisms comprised inadmissible “net opinions” that were not based on objective standards. Instead, the opinions were based on the expert’s personal experiences, without sufficient substantiation or competent proof that they were prevailing or common in the field. [Decided Oct. 23, 2013.]