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Vol. 4 No. 105 – JUNE 3, 1996 STATE COURT CASES CORPORATIONS 12-2-9089 Myra K. Shaughnessy, et al. v. Frances Morris, etc., et al., App. Div. (3 pp.) Although N.J.S.A. 14A:6-3 permits the holding over of directors until their successors are elected and qualified, the judge did not err in terminating the holdover period and dissolving the corporation in this case where a director had died in 1993 and his widow and the remaining directors were hopelessly divided in voting power and unable to elect a successor. CORRECTIONS — TORT CLAIMS ACT 13-2-9090 Jessie Collins v. Union County Jail, et al., App. Div. (2-page appellate opinion published with 8-page law division opinion) Although inmate’s rape by a corrections officer was a “particularly horrid incident” and although his medical expenses meet the statutory threshold for recovery against a public entity under N.J.S.A.59:9-2(d), his psychological impairment — without evidence of physical injury — was not a qualifying injury. [Approved for publication May 31, 1996.] ENVIRONMENT — CLOSURE ACT 17-2-9091 In the Matter of the Adoption of N.J.A.C. 71I; Twp. of Voorhees v. Dept. of Envtl. Protection, etc., App. Div. (13 pp.) The legislative objective of the Closure Act, N.J.S.A. 13:1E-100 to 116, was to impose responsibility upon an owner who enabled an improper landfill closure, not to suggest that any person or entity would be liable for statutory damages, and therefore DEP commissioner improperly founf township — which acquired title to a closed sanitary landfill prior to the enactment of the Act –liable as an “owner” under the law. [Approved for publication June 3, 1996.] FAMILY LAW 20-2-9092 Joanne Hubrig v. Jeffrey G. Hubrig, App. Div. (3 pp.) In view of the Social Security Administration’s determination that defendant had become disabled, defendant’s motion to vacate alimony award should be remanded and reconsidered to consider his changed circumstances, present medical condition and employment status. 20-2-9093 Karenlee Winn v. Joseph Genther, App. Div. (4 pp.) Since the children have lived in Pennsylvania for more than two years, judge’s order denying ex-husband’s request for visitation is affirmed, since N.J. has no jurisdiction to make a visitation modification under the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to 52, and it is irrelevant that the ex-wife moved without notifying the ex-husband, since he had made no attempt to visit the children in a substantial period of time; however, award of counsel fees to ex-wife is reversed, since she had moved without telling the ex-husband and failed to reveal her remarriage, which partially precipitated the ex-husband’s court application. 20-2-9094 Linda L. Ventura, etc. v. Timothy W. Schultz, App. Div. (6 pp.) Where defendant had made child support payments directly to plaintiff before probation department became involved, then tried without success to convince probation department that he was not in arrears, finally instituting this action to clear his record, the trial court should not have permitted the probation department to submit its purported audit of defendant’s account on the eve of its decision on defendant’s motion without the defendant being provided a copy and given an opportunity to respond, and matter is reversed for a plenary hearing. NEGLIGENCE 31-2-9095 Donzilia Antunes, et al. v. Charles Schrum, et al., App. Div. (5 pp.) The court finds no basis to disturb the judgment entered or the order denying plaintiff a new auto negligence trial since, (1) although it is undisputed that she suffered significant injuries, the jury could reasonably have found from the evidence that her complaints of pain and disability far exceeded the nature and extent of her injuries, (2) the trial court’s instructions did not place too much emphasis on the duty to mitigate, and (3) there was no plain error in the court’s instructions relating to pain and suffering, disability or loss of enjoyment. NEGLIGENCE — ASSAULT 31-2-9096 John Smith, etc. v. James Range, et al., App. Div. (16 pp.) In case where jury determined that defendant had been negligent in his infliction of bodily injury on decedent and that the assault had not been justified under self-defense principles, the judge should not have overturned the liability verdicts, even though he was correct in his ruling that the $2,250,000 damages award was excessive, and that award is reduced to $750,000 by the appellate panel. NEGLIGENCE — MUNICIPALITIES 31-2-9097 Harold Aguilar, et al. v. The Borough of Seaside Heights, et al., App. Div. (10 pp.) Summary judgment was properly granted to municipal defendants on plaintiffs’ claims that the defendants negligently failed to warn them of a dangerous condition at a public beach, and plaintiffs’ negligent supervision claim — that municipality failed to place a sign on the beach warning about the dangers of diving into the surf — is subject to the statutory immunity conferred by N.J.S.A. 59:4-8. NEGLIGENCE — TORT CLAIMS ACT 31-2-9098 Norleen Smith v. City of Bayonne Housing Authority, App. Div. (5 pp.) Summary judgment dismissing plaintiff’s complaint based upon her failure to satisfy the notice requirements of the N.J. Tort Claims Act is reversed, since plaintiff orally notified the defendant of her fall, and defendant reduced the notification to a written incident report form, which, while unsigned, substantially set forth all of the contents of a claim as required by the Act, and constitutes substantial compliance to put defendant properly on notice that plaintiff might pursue a claim against it. PHYSICIAN/PATIENT 29-2-9099 Felib Fouaud, et al. v. Daneca DePaolo, M.D., et al., App. Div. (7 pp.) Since plaintiffs have clearly abused the discovery process as well as the many indulgences granted by counsel and the trial court, the drastic sanction of dismissal with prejudice of malpractice claim is warranted and affirmed. PUBLIC EMPLOYEES 33-2-9100 Martin Verp v. Bd. of Trustees, P.E.R.S., App. Div. (4 pp.) Board’s decision denying appellant a special veteran’s pension allowance was a denial of due process because the exceptions of the deputy attorney general representing the board before the ALJ were filed in an untimely fashion on the very day the board rendered its determination without affording appellant an opportunity to respond, and matter is remanded for reconsideration after appellant has had such an opportunity. CRIMINAL LAW AND PROCEDURE — P.T.I. 14-2-9101 State v. Michael R. Imbriani, App. Div. (14 pp.) The Program Director’s denial of former Superior Court Judge’s application to enter the Pretrial Intervention Program was neither arbitrary nor capricious on the facts of the case, and the denial is affirmed. [Approved for publication June 3, 1996.] A Daily Reporter of New Jersey Court Decisions

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