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Vol. 3 No. 148 Decisions Released August 8, 1995 AUTOMOBILES — DWI 05-2-6327 Michael J. MacFarlane v. N.J. Div. of Motor Vehicles, App. Div. (7 pp.) Since, pursuant to the interstate Driver License Compact, the state motor vehicles division director may apply either penalties of the home state or of the state where the violation occurred, the director did not abuse his discretion in suspending the defendant’s New Jersey license for the 720 days provided under New Jersey law for his second DWI offense, even though the violation occurred in New York, where the law provided for a six-month suspension. CORPORATIONS 12-2-6328 John Griffin Strasenburgh, et al. v. George J. Straubmuller III, et al., App. Div. (18 pp.) Since minority shareholders’ suit against senior officers and directors of family-held corporation is in the early stages, the judge should not have held, as a matter of law, that the disparate impact of directors’ artificial deflation of the shares’ value, which benefited majority shareholders at the expense of the minority, did not create a basis for asserting individual claims for which minority was entitled to relief, and that holding is reversed; the minority’s claim of waste, however, was not supported by their disparate impact theory and that count was properly dismissed. [Approved for publication August 8, 1995.] [Available online in N.J. Full- Text Decisions.] FAMILY LAW 20-2-6329 Sidney Gitter v. Myrna Gitter, App. Div. (4 pp.) The fact that no alimony was ordered at the time of divorce did not mean that wife could not later apply for alimony if she suffered a change of circumstances, and denial of wife’s post-judgment alimony application is therefore reversed, since her termination from her tenured teaching position constitutes such a showing. 20-2-6330 Peter Verdugo v. Joann Verdugo, App. Div. (5 pp.) Since wife first sought alimony some 17 years after divorce was adjudicated and made no attempt to explain to the court why the case had remained dormant for such an extended period, why she was able to obtain only sporadic employment, and why her financial needs had changed over the years, her application was properly denied. MUNICIPAL LAW 30-2-6331 Walter R. Earle Corp., etc. v. Jackson Industrial Comm’n, etc., et al., App. Div. (5 pp.) The Local Public Contract Law and the Local Land and Building Law do not require a municipal industrial commission to offer property it intends to sell by public bid, and the lower court decision to that effect is affirmed. 30-2-6332 Borough of East Rutherford, etc. v. N.J. Sports & Exposition Auth., etc., App. Div. (8 pp.) The trial court should not have entered summary judgment dismissing borough’s action on behalf of taxpayers to have authority pay taxes it owed, since there clearly were disputes as to material facts surrounding the parties’ settlement negotiations and calculations. NEGLIGENCE — SAFE WORKPLACE 31-2-6333 Jerry Van Diver, et al. v. Edward Foote, et al., App. Div. (8 pp.) Where painter saw a ladder leaning against a wall while he was looking at property for the purpose of giving its owner an estimate, and he asked the owner if he could use the ladder during the estimate process and was given permission, it did not mean that the ladder was “provided” by the owner for the purpose of painter performing the actual job, and the painter’s suit against owner (for injuries suffered when painter fell from ladder) was properly dismissed. PRODUCT LIABILITY 32-2-6334 Dennis E. Williams v. Louisville Ladder, etc., et al., App. Div. (10 pp.) In a suit where plaintiff suffered injuries in an accident involving the collapse of a ladder, (1) the trial judge properly dismissed design defect claim against ladder distributor and manufacturer where judge determined that the plaintiff’s expert lacked the requisite training, experience and education to provide a proper foundation for his opinion concerning a design defect, and (2) the jury’s no cause verdict on a failure-to-warn theory also could have been reached on the evidence and is affirmed. REAL ESTATE — ADVERSE POSSESSION 34-2-6335 Anna J. Pluck v. Estate of Mary Ann Stoy, et al., App. Div. (7 pp.) Since the burden of proving each of the essential elements of adverse possession is on the party claiming title, and the burden is satisfied only by clear and positive evidence, the granting of summary judgment to widow, who claimed title by adverse possession to lands originally vested in her husband and his brothers, is reversed and remanded because the judge made no specific findings of fact and conclusions of law. 34-2-6336 Land O’Pines Mobile Home Park Inc. and Alan Fascia, et al. v. Land O’Pines Mobile Home Park Inc. and Frederick H. Hebeler, et al., App. Div. (4 pp.) Summary judgment in favor of mobile home park awarding it possession of premises and evicting defendants and their mobile home from park’s land is affirmed, since the contract the defendants signed when they entered the property specifically stated the number of people allowable in trailer and, when defendants had a child, they exceeded that number. TAXATION 35-2-6337 Genaro Phillips, et al. v. Twp. of Hamilton, App. Div. (6 pp.) Landowners’ tax appeal was properly dismissed since they did not provide sufficient information to the tax court concerning adjustments to the one property they offered as evidence in order to compare it properly with the subject parcel. TORTS — TORT CLAIMS ACT 36-2-6338 Doreen M. Struble, et al. v. Phil Hollenbeak II, et al. v. Twp. of Middletown, App. Div. (3 pp.) In an automobile accident case, denial of plaintiffs’ motion to file a late notice of claim against township was not an abuse of discretion since plaintiffs were on notice from the date that they received a police report that the other driver asserted he did not see a stop sign because it was obscured, and plaintiffs assertion that they were lulled into inaction by the investigating officer’s statement that the stop sign was visible is without merit. CRIMINAL LAW AND PROCEDURE — DISORDERLY PERSONS 14-2-6339 Mary E. Marsh v. Dennis Cream, App. Div. (5 pp.) The trial judge erred when he found defendant guilty of a disorderly persons offense for failing to leave ex-girlfriend’s property when first asked, since there was no fighting or threatening conduct displayed, and the statute contemplates a disturbance of some general or public impact. CRIMINAL LAW AND PROCEDURE — DOMESTIC VIOLENCE 14-2-6340 W.P. v. R.P.R., App. Div. (5 pp.) Judge had jurisdiction to enter final restraining order against grandson, who lived on top floor of four-family residence, at the request of grandfather, who lived on first floor, since the relationship and parties’ proximity satisfies the statutory requirement of “person who is a present or former household member.” 14-2-6341 State v. L.C., App. Div. (13 pp.) Where ex-wife was convicted on two occasions of violating a temporary restraining order entered against her by ex-husband, (1) although ex-wife suffered from emotional stress which may have detracted from her ability to reason carefully and make sound judgments, it did not negate her ability to understand the temporary restraining order entered against her, and her decision to disobey it by going to the home of her ex-husband’s paramour was conscious, culpable, and the conviction is affirmed, however, (2) where ex-wife, when picking up her children in a neutral location, expressed her discontent to ex-husband about the paramour’s attendance at children’s birthday party, and used inappropriate profanity, it did not constitute “harassment” and this conviction is reversed. [Approved for publication Aug. 8, 1995.] [Available online in N.J. Full-Text Decisions.]

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