New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

On appeal, the Third Circuit reversed this holding with the Court stating that the Plaintiff’s “verbal” notice was sufficient to entitle him to a claim under benefits through the Family Medical Leave Act (FMLA), even if he had not followed the Company’s policies.  This is a somewhat disturbing development for employers, because it raises many issues about the type of “verbal” notice an employee can give, and “muddies the waters” as to a company’s ability to require its employees to follow its written policies regarding disability benefits. 

For example, if an employee leaves a voice mail message on the Human Resource's voice mail requesting FMLA leave, is that sufficient to put the company on notice?  This question will need to be answered in subsequent cases.

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Gary S. Forshner, Shareholder and member of Stark & Stark's Real Estate, Zoning and Land Use group was quoted in the Thursday December 13, 2007 issue of the South Brunswick Post, in the article YMCA hires architect for project.

Mr. Forshner comments on the proposed expansion of the South Brunswick Family YMCA and what the added support for the additions could mean for the South Brunswick community.

You can read the full article here.

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On September 21,2007 Robert J. Durst  wrote questioning the logic of step mother's  conviction for kidnaping her step children.
 
A Ms.Froland left the country with her step children and her husband, their father. The kidnaping charge against her husband, the father, had been dismissed on the theory that he had the right to relocate/travel with his children.
 
However, an Appellate Court had ruled that his rights did not extend to his second wife, the children's step mother,  Ms. Froland. The Appellate Court held that  she could be convicted of kidnaping the children notwithstanding the dismissal of the charges against her husband.
 
Mr. Durst questioned the logic of that decision and urged the New Jersey Supreme Court to reverse it.
 
On December 12, 2007 the Supreme Court released its opinion. The opinion written by Justice Virginia Long (one of the State's foremost Family law experts and a former Family Court Judge) found that Ms. Froland could not be convicted of kidnaping the children. The Court held that Ms. Froland not only had the consent of the children's father, but that he was a full co-participant with her.
 
Justice Long and the majority of the Court should be applauded for seeing through convoluted legal rhetoric and a very strained interpretation of the kidnaping statutes . To ruled otherwise would have potentially exposed every step parent in New Jersey to such charges by their husband/wife's former spouses.
 
The only question to be asked at this junction is why and how a prosecutor, the Trial Court and the Appellate Court would expend so much time, energy and judicial resources on such  an issue at a time when our Courts are already over burdened with legitimate Family Law issues?
 
Thank you to the majority of the Supreme Court for putting this to rest.

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In a recent unpublished decision by the New Jersey Appellate Division, known as Ashwall and Winograd v. Prestige Management Services, Inc., et als. (Decided October 16, 2007), the Court dealt with a claim by employees of a New Jersey automobile dealership franchise who claimed religious discrimination and “promissory estoppel” against their former employer.  The Plaintiffs, a manager and top-salesman, claimed discrimination based on their religious faith (Judaism) under the New Jersey Law Against Discrimination.  One of them had also claimed that, since he had been given the task of turning a non-profitable dealership “around,” that he was entitled to employment for at least a reasonable period of time. 

His argument was that he had been a very successful manager of another dealership, and by asking him to take on the management of a non-profitable dealership, the franchisee in effect “owed” him employment for a certain period of time.  This claim had been dismissed by the trial judge prior to the trial of the case, and was never heard by a jury.  While there appears to have been some factual merit to the Plaintiffs’ argument, the Appellate Division relied on traditional notions of “at-will” employment and determined that the Court had been correct in dismissing the claim for Promissory Estoppel as they did not find that there was enough evidence that the parties had intended to enter a long-term commitment.  Specifically, the Court was looking for “assurances of employment” that were “clear, specific and definite.”  The franchisee in this case avoided any liability on the “promissory estoppel” claim (though there was a jury verdict against it for discrimination). 

This case highlights the potential for confusion between the franchisee who owns several locations and employees who are “specially assigned” to trouble-shoot certain kinds of jobs.  To avoid this confusion, a franchisee should notify an employee clearly and in writing that their “at-will” employment relationship continues despite the new assignment and that there is no guarantee of continued employment.  Such a written assurance would have most likely avoided litigation in this case and would have saved the franchisee from having to defend such a claim.

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Many businesses are receiving “preference” demand letters directing the return of money received from bankrupt debtors. Among the more notable bankruptcy cases in New Jersey from where such preference demands may arise include: Best Manufacturing Group, New Jersey Affordable Homes, Rockaway Bedding, Marcal Paper Mills, Kara Homes, Elliot Building Group and Ash Holdings. Although this may seem an odd demand - return money for perfectly delivered goods or services -  the practice of recovering “preferences” in bankruptcy is allowed under the Bankruptcy Code.  However, before you go writing a check to return hard earned money, you should consult with a bankruptcy attorney to find out if the transaction qualifies for defenses, as well as your best possible negotiating position.
   

What is Preference?
A potential preference is a payment received from a debtor, made within 90 days of the bankruptcy filing.  Bankruptcy Code section 547(b) allows a bankruptcy trustee or debtor-in-possession to avoid this payment, if the transfer was to or for the benefit of a creditor on account of an antecedent debt while the debtor was insolvent.  When Congress enacted the Bankruptcy Code, the policy behind preferences was to level the playing field for all creditors by not allowing a creditor to receive more than it would have within the debtor’s bankruptcy case. 

Proper Response to the Preference Demand Letter Critical
Although the Bankruptcy Code gives the power to recover these transfers, your business may have certain defenses to eliminate, or at least lessen, your exposure. These defenses include: payments made within the ordinary course of business; contemporaneous exchange for new value; payments made outside of the 90 day preference period; settlements during the bankruptcy case; and/or payments made via C.O.D.  To determine if your transaction qualifies for one of these defenses and make the proper response, it is imperative review the account information.

Information Needed to Determine Defenses
Prior to contacting your attorney, you should gather the full payment history at least a year before the bankruptcy filing.  This information includes:
1.    all correspondence, contracts, emails and the like with the debtor;
2.    a copy of all invoices, showing invoice date, terms, and amount of each invoice;
3.    a copy of the payments received (i.e. checks, wires, cash deposit slip) and date posted to your bank account;
4.    number of days elapsed between date of invoice and date payment was received; and
5.    personnel involved with the debtor’s account, so they can advise how payments were made, applied and any unique issues with the debtor. 

Once your attorney has this information, it will raise a number of questions  For instance, are some of the payments alleged as preferential outside the 90 day period?  Or, are the payments made within the ordinary course of your industry?  However, how do you determine your industry compared to a similar industry? Do you need an expert witness?  These and many more questions should be addressed with your bankruptcy attorney prior to sending any response.   

Stay tuned for future posts within the coming weeks dealing with a more detailed discussion on specific preference defenses, including ordinary course of dealings, contemporaneous exchange for new value and industry specific issues for the building and construction, REITs and commercial developers, and other service providers.

In the interim, for more information on defending a preference action, or other bankruptcy issues, please feel free to contact Tom Onder, Stark & Stark’s Bankruptcy & Creditor’s Rights Group at (609) 219-7458 or via email a tonder@Stark-Stark.com.

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There are basic laws that governs condominiums (“condos”) and cooperatives (“co-ops”) in New York.  Condos are governed by the New York Condominium Act, Article 9-B, Real Property Law (the “Condominium Act”). Co-ops are governed by the Business Corporation Law.  There are always new issues that arise requiring new laws that impact residents of New York condos and co-ops.
 
One bill in New York that has many residents, board members and managers concerned is the “Fair and Prompt Disclosure Act”, also known as Intro 119.  This bill would require co-ops to provide specific reasons for the rejection of any potential purchaser.  This bill is at the City Council level and is the same as the bill in Albany under consideration, AO1000.  Bill AO1000 requires co-ops to provide a prospective purchaser with a written statement of reasons when withholding consent to purchase and voids any agreement inconsistent with such requirement.  Those who support these bills contend that there is a problem spreading throughout NY relating to discrimination.  Those who oppose the bill rely upon the current laws already in place that prohibit discrimination.  For more information pertaining to this bill, please view the blog posted by Jonathan H. Katz, Esquire of Stark & Stark entitled “Shining a Light on the Co-Op Approval Process” posted on July 10, 2007 here.
 
Another bill, Bill A3677, has been referred to the judiciary to amend the real property law, in relation to requiring hearings before placing liens on condominium units.  This bill would require boards of managers of condominiums to provide a unit owner with an opportunity to be heard prior to placing a lien on such person`s condominium unit.  Currently, condominium owners who withhold  payment  on common  charges  because  the  board  of managers has failed to repair problems, which fall under the  board`s  responsibility,  face  having liens  placed  on  their property. A condo owner with a lien on his or her condo is unable to sell his/her property  and  is  in  jeopardy  of damaging his/her credit  rating and ability to obtain loans. This bill seeks to protect New York State`s many condo owners from  unreasonable financial  hardship  by requiring that boards of managers provide unit owners with an opportunity to be heard.
 
Another bill in Albany that relates to condos an co-ops in New York is A00475.  The bill would require the licensing of building managers of multiple dwellings.  It will also prohibit owners from operating without a licensed manager.  Managers would be required to take building management courses with minimum a number of hours of classroom work conducted or approved by department of buildings.  The bill provides criteria for determining competency to receive a license, how to apply for a license and the revocation and suspension of a license.  It addresses judicial review of department of building’s decision to grant, refuse or renew and revoke a manager’s license.
 
While some legislation is enacted to protect owners and/or residents, Bill A6155 expands the authority of the board of managers.  This bill will allows a board of directors or board of managers to take appropriate action against an objectionable tenant who fails to comply with the by-laws or rules and regulations of the condominium or homeowners association. Failing to comply to the by-laws or rules and regulations of a condominium or homeowners association in a proper case would be grounds to bring a summary dispossess proceeding against the tenant of a non-occupying unit owner, giving the board of directors or board of managers another avenue of appropriate action.
 
There are many local, state and federal bills in consideration.  It is imperative for owners, managers and board members to closely monitor court decisions and legislation affecting co-ops and condos.    We will continue to monitor pending legislation and provide timely updates as to the progress of same.  If you would like to discuss any of the above referenced issues or how they affects your condo or co-op in greater detail, please contact Robyn Nolan Howlett, Esquire at rhowlett@stark-stark.com.

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The New Jersey Appellate Division decided Delam Construction v. 15 Thornton Road on December 10, 2007.  The parties had entered into a contract for Delam to construct a building.  Defendant, Thornton, owed Delam a balance of $187,368 for Delam’s work on the project.  Delam filed suit for breach of contract and later added Thornton’s managing member as a defendant.

Thornton counterclaimed alleging construction deficiencies.

Discovery took place and trial was scheduled more than one year after the complaint was filed.  By then, defendant had obtained new counsel, trial was adjourned and the court sent the matter to arbitration after defendant’s new attorney raised for the first time an arbitration clause in the original contract.  Plaintiff alleged that defendant had waived its right to arbitration by participating in the litigation for over one year.  The court examined the competing interests between, on the one hand, favoring commercial arbitration as a speedy and inexpensive alternative to litigation, particularly in construction contract disputes, and on the other hand, whether the active and prolonged litigation resulted in a waiver of the right to compel arbitration.

The court noted an earlier decision where a trial judge’s compelling arbitration nearly five years after the original complaint, was rejected.

After wrestling with the issue of when a waiver has occurred, the court ruled in favor of allowing the matter to proceed to arbitration.

The court relied upon “prejudice” as the “touchstone” for determining when a waiver has occurred.  The court was influenced by the perceived lack of prejudice to plaintiff given that much of the same information generated through discovery would be admissible in the arbitration.  The court was also persuaded by the assumed knowledge by plaintiff that by filing in court, plaintiff was ignoring the mandatory contractual arbitration provision.  Finding neither side blameless, the court directed the matter to arbitration.

The court recognized this was a difficult choice.  Parties litigating in this area should be mindful that there are federal cases which hold otherwise.  As always, the ultimate outcome was somewhat case specific and fact sensitive.

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The New Jersey Law Blog was featured in the December 9, 2007 issue of the Star Ledger in the article Jersey Podcasting. The article discusses the importance and benefits of podcasting for businesses. The article lists several New Jersey based websites offering informative and educational podcasts, including the New Jersey Law Blog.

You can read the full article, and the full list of websites here.

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Every Who down in Who-ville liked Christmas a lot... but the Grinch, who lived just north of Who-ville, did NOT!  The Grinch hated Christmas!  The whole Christmas season!  Oh, please don’t ask why, no one quite knows the reason.  It could be, perhaps, that his shoes were too tight. Or maybe his head wasn’t screwed on just right.  But I think that the best reason of all may have been that his heart was two sizes too small...

– Dr. Seuss – “How the Grinch Stole Christmas”

With apologies to Dr. Seuss, and with the holiday season fast approaching, many community association boards find themselves in the unenviable position of having to balance enforcing their rules and consider the safety of their residents while trying not to come off looking like Ebenezer Scrooge (before the visits from the ghosts of Christmas past, present and future, of course).  While an association of single-family homes may be less concerned about restrictions than a high-rise condominium or townhouse association, here are some obvious – but often overlooked – rules to think about when it comes to regulating holiday decorations:

(1)     Be Reasonable and Consistent – Unless your Governing Documents require it and there is a compelling reason to do so, do not prohibit residents from decorating the exteriors of their homes for the holidays.  Associations should adopt uniform rules and communicate these rules to the residents so everyone is on the same page as to what they can and cannot display.  Further, if your association does ban holiday decorations, it is essential to be consistent and ban all decorations and displays. 

(2)    Set Reasonable Restrictions – It is reasonable and appropriate to require residents to regulate the time that decorations may be displayed and, sometimes more importantly, when they should be removed.  It is also reasonable to regulate the time of day that lights or other features may be illuminated so as not to create an unreasonable nuisance for neighbors or additional safety issues.  Avoid, if at all possible, venturing into unchartered territory of restricting religious displays, which may open up a proverbial (no pun intended) can of worms.

(3)    Do Not Argue Over Aesthetics – We all know that not everyone has exquisite taste in decorating, but if the board or architectural review committee are arguing over what is tasteful and what is not, it may be time to take a closer look at your rules regarding decorations and open a dialogue with the community about what changes they would like to see.

(4)    Be Mindful of Decorations on Common Elements – While it is not advisable to prohibit homeowners from decorating their own homes, it is perfectly acceptable to ban residents from decorating general common elements without association approval or that could cause damage.  It is also advisable to limit homeowners from affixing decorations to limited common elements if the association is responsible for their maintenance.  And again, associations that do choose to decorate common areas, such as clubhouses, entrance ways or lobbies, should avoid religious displays and be mindful to either keep such decorations general – lights and wreaths, for example – or to take extra care to give equal treatment to all religious affiliations.
           

Overall, it is important to make your holiday decorating rules reasonable and even-handed.  Concentrate on what is most important: location, time and place, size and safety, but not content or aesthetic appeal.  And just remember, as long as they are not dangerous, the ten-foot tall inflatable Santa, Rudolph or Frosty the Snowman won’t hurt anyone (and won’t be on display forever).

If you would like to discuss this issue or how it affects your association in greater detail, please contact Jonathan H. Katz at (609) 219-7448 or via e-mail at jkatz@stark-stark.com.

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Thomas B. Lewis, Chair and Shareholder of Stark & Stark's Employment Litigation Group, and Michael J. Brittan, member of Stark & Stark's Employment Litigation Group authored the chapter At-Will Employment: New Changes and Challengers for Employers for the Winter Edition of Human Resources 2008.

The chapter discusses issues and challenges employers will face when initiating changes in the relationship to protect the company, even though legal protections may be in place.

You can read the full chapter here.

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The Divorce Law Podcast is a 10 episode series presented by Robert Durst, Shareholder and Chairperson of Stark & Stark's Divorce Law Group.  The series is constructed so that listeners may use it as an "owners manual" for their divorce. 

This tenth and final installment of the Divorce Law Podcast will focus on moving on with your life after your divorce is final.

You can download the tenth installment here. (4.5 MB)

Episode 10 Show Notes (PDF)

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A common, but sad comment which we often hear from clients who are facing a divorce is their
feeling that they have no choices.

No choice because their spouse wants a divorce or no choice because their spouse’s behavior compels them to file for a divorce.

Feeling that one is out of control of something as important as the continuation of their marriage, is sad to hear, and, I am sure, frustrating to the individual.

However, it is seldom true. You do have a number of choices beginning with how or whether you can accept your spouse’s behavior or decision to a number of very important choices from the inception of your divorce to its conclusion.

Consider, for example, the following.

Your spouse’s behavior----or expressed decision to seek a divorce--

You may find that your spouse is engaged in an extramarital affair, your spouse may be abusing alcohol or your spouse may be inattentive and unaffectionate. 

Your spouse may announce to you that he/she has decided to file for a divorce.

Although each of these are profound problems, they do not, necessarily, result in the inescapable conclusion that you have no choice other than divorce.

Your spouse’s announced intention to seek a divorce may be a cry for attention. It may be a misguided solution to pressures unrelated to the marriage.

Your spouse’s failure to communicate, show affection or engage in marital relations may be a defense mechanism to avoid what she/he thinks will be your rejection, it may be the result of a very legitimate physical condition or emotional depression.

Even an extramarital affair may be a misguided attempt to solve what she/he perceives to be a lack of affection from you, a loss of intensity in your marital relationship or simply a misdirected  attempt to validate him/herself.

If your marriage is important to you, do not simply accept your spouse’s decisions or actions as being the only alternative. Instead, consider--

*seeking counseling for yourself to explore whether there is something which you could be doing better or, at least, differently, to help change the situation
 
*express to your spouse in clear, unequivocal, but nonconfrontational, terms how much you value your marriage and want to work to save it .

*educate yourself with regard to the offending conduct. Al Anon, for example, can provide you with valuable insights into functioning as the spouse of an alcoholic. There are other support groups for virtually every form of human behavior; research and seek them out.

When all else fails, and if you still committed to maintaining your marriage in the face of what appears to insurmountable odds, simply stay the course.  Remain consistent and calm, exercise an attitude of forgiveness and reconciliation as opposed to blame and recrimination and reaffirm to your spouse your love and the importance of your marriage.

There is no guarantee that the results will be what you wish them to be, but the effort of trying can leave you with a much more positive attitude if the marriage does not survive than simply feeling forced to accept your spouse’s behavior or decision.

Make a reasoned choice in the selection of your attorney---

If, despite your efforts, the marriage fails, the selection of an attorney is one of the most important decisions you will make.

Ask for and consider the recommendations of other professionals, of persons who have been through a divorce and any others who may have insight into the competent divorce attorneys in your area.  However, do not accept such recommendations without doing your own due diligence and personally meeting with the recommended attorney(s).

In the internet age, simply Googling the names of suggested attorneys will provide considerable information.

Check the divorce specific websites. Some, for example, are the Supreme Court’s listing of Certified Matrimonial Attorneys (there are only about 100 statewide), The American Academy of Matrimonial Attorneys (there are about 1500 nationwide) and The American College of Family Trial Lawyers (there are only 100 nationwide).  Best Lawyers or Super Lawyers and Martindale Hubble are peer review ratings of attorneys and are useful particularly if used in conjunction with other sources.

After doing your due diligence, meet with the attorneys whom you are considering.   Ask direct questions: how long have you been practicing, how much of your work is divorce related, how often do you appear in the county of your residence and any such questions specifically relevant to your case.  Listen to both the answers and the tone of the answer.  Any competent or qualified

 
Attorney can provide you with answers to such questions, is very accustomed to have clients interview them and should not express any impatience to the nature of the questions. 

You will feel much more in control of the process if you diligently and intelligently attempt to make the choice.

Inquire as to alternative fee arrangements with the attorney--

Do not be afraid to openly and honestly discuss fees with the attorneys you are interviewing.

Current practice and Supreme Court Rules of practice virtually mandate that your attorney charge you by an hourly rate.  They also require that the fee agreement be in writing with very specific and detailed provisions mandated by the Court itself through its rule making process.

Therefore, you will almost certainly be told that “my hourly rate is X “, and may often be told that the attorney cannot yet project a reasonable fee estimate.

You should not accept that answer without further inquiry.

You should ask the attorney about the experience of  his/her staff and their hourly rates, you should ask how the attorney will delegate to staff in order to keep your blended hourly rate as low as competently possible and, if the attorney cannot or will not give you a budget estimate, ask when they expect that they will be able to do so and what can be done if their budget estimate exceeds your ability to pay.

Give-- don’t simply receive-- the strategic directives for your case--  

Not all cases, and not all clients are alike.

Your goals for your divorce may or may not be the same as the attorney’s expectations for your case or the goals of other similarly situated clients.

You should delegate the legal decisions and strategies to your attorney, but you should never surrender your ability to decide all non-legal strategies and goals that are often more important than the legal issues.

For example, whether or not you should attempt to retain your home is not a legal decision. Where your children attend school, what religious training they are to receive or even whether to take certain assets instead of others are non-legal decisions. These are decisions which you and you alone should make. You should solicit the advice of your attorney or others (your family, your accountant , a competent child psychologist, etc), but you must retain the right to make those decisions yourself and exercise that right.

The choices which you make will affect you and your children’s lives for years into the future and should be made by each client using their own sense of values and judgment.

Make your own choice as to whether you wish to pursue your remedies solely through the legal system or with the assistance of alternative dispute resolution------

Every divorce attorney is ethically required to advise every client as to the nature and availability of the various alternative dispute resolution mechanisms.

They may include mediation or arbitration, they may include the Court ordered and provided Early Settlement Panel or they may include using a mental professional to serve as a mediator of parenting issues or even to serve as parenting coordinator.

There are some cases in which various of these alternatives are contra indicated—for example, if there a Domestic Violence Restraining Order in place, mediation may not be an alternative.
If there is a power, knowledge or ability to communicate imbalance, any alternative resolution may be ill advised. Or, conversely where there are tax evasion problems or other personal, embarrassing or damaging issues which should not discussed in open court, alternative resolution may be highly recommended.

In the final analysis, knowledge is power and the power to consider and make alternative choices may or may not result in saving your marriage, but, if not, they will give you a much more satisfactory feeling about the conclusion to your divorce.

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In Mani v. Mani  (183 NJ 70, 2005) Justice Virginia Long,  writing the majority opinion for the New Jersey Supreme Court, held that marital fault was not a relevant factor in determining alimony with the exception of  two narrow circumstances:
 
1. The fault affected the economic life of the parties, or
2."the fault so violated societal norms that (the payment of alimony) would confound notions of simple justice"
 
The second circumstance---conduct which violates societal norms and confounds notions of simple justice--- was recently addressed by a panel of the New Jersey Appellate Division in Calbi v. Calbi. (released 11/21/2007).
 
In Calbi the wife, who was receiving alimony,  killed the parties 14 year son in what was described as "an alcoholic rage". The wife had kicked and beaten the son to extent that he subsequently bled to death, she had pleaded guilty to second degree aggravated assault  and was incarcerated.
 
The Appellate Court was asked to consider whether such conduct "violated societal norms" and "confounded the notions of simple justice" to the extent that it would bar her claim for alimony.
 
To this writer's utter amazement, the Appellate Court held that, "although dreadful", the wife's conduct was not so "egregious" as bar her claim for alimony. They concluded  that once she was released form prison she could renew her claims for alimony!
 
This holding begs the question: If killing one's own child does not violate societal norms or confound notions of simple justice, what would?
 
While the Appellate Court seemingly turned its decision on a narrow reading of the alimony statute,  it is respectfully submitted that the "person in the street" would clearly find such conduct to be offensive to societal norms and would agree that it  "offend(s)  the notions of simple justice".
 
What average person (and, we should, I think, assume that "societal norms" are defined by the collective opinions of average persons), if told this story, would  conclude that this mother should continue to receive alimony from the father of the child she had killed?
 
Can the same "average person" honestly believe that "simple justice" requires that a father be obligated to continue to support a person who has killed his child?
 
While I have the utmost of respect for all of Judiciary, and even a higher level of respect for our Appellate Courts, I believe that this opinion simply misses the mark. It risks further erodes from our body of Divorce Law any reality based common sense or notions of fundamental fairness.
 
Allegations of fault are often very subjective, impossible to clearly define and counter productive in vast majority of cases. But, to proffer the opinion that killing one's own child is not "egregious" conduct is off the " moral compass". If that is a valid observation, then Divorce Law,  which has as its fundamental premise the need to do equity, has, in my opinion,  taken  a serious step back.
Law which does not reflect fairness, common sense and "societal norms" is very often "bad" law. The Calbi decision is, in this one man's opinion, "bad" law.

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