Litigation

Appeals court revives suit over breach of fiduciary duty

Ansell Grimm July 26, 2017

Joshua S. Bauchner, Esq., a partner of Ansell Grimm & Aaron, P.C., and co-chair of the firm’s Litigation Department, and Michael H. Ansell, an associate with the firm, recently secured the reversal on appeal of Dennis T. Palmeri, Jr’s suit against his former attorneys at Willkie Farr & Gallagher LLP.

Palmeri alleged that Willkie unilaterally terminated its representation of him in favor of his employer, Ramius Securities, and then shifted responsibility for purported violations of FINRA’s rules onto him to protect its corporate client. Palmeri claimed the law firm breached its fiduciary duty in violating his right to conflict free representation.

The trial court ruled that Palmeri failed to file his suit within the statute of limitations period, but the Appellate Division, First Department, unanimously disagreed and reinstated the case. For the full story, please visit Law360, or the New York Law Journal.

Shapiro delivers back-to-back victories for AGA clients

Ansell Grimm July 14, 2017

In two different trials, held in two consecutive weeks, in two different counties, Lawrence Shapiro, Esq., co-chair of Ansell Grimm & Aaron, PC’s litigation department, attained victories for clients of the Firm. The first involved a battle between neighbors over the use of a private beach and access to the bay on Long Beach Island in Ocean County. The Court ruled that the Diaz family, represented by Shapiro and AGA, had superior rights to the beach and could exclude the intruding neighbors from using the beach and accessing the waters of the bay through their property.

In the second matter in Monmouth County, Shapiro obtained a judgment in favor of Vingo, a popular New Jersey liquor store chain, against BPS, Inc. trading as Bankcard Payment Services who had installed credit card processing equipment at two of Vingo’s stores. Shapiro was able to overcome vigorous and repeated attempts by BPS to have the case dismissed pursuant to Merchant Service Agreements and various legal doctrines including laches and Vingo’s own negligence which BPS asserted barred Vingo’s claims and the court from granting relief to Vingo. At the conclusion of the trial, the Court entered judgment in favor of Vingo against BPS for over $60,000 in charges made by customers on Discover Cards over a two year period that were not properly processed by BPS and for which no payments were received by Vingo.

See: Diaz v. Esposito Family Trust, John Lombardi, Aster Lombardi, Irene Lombardi, Arthur Medeiros, Christine Medeiros, Docket No. OCN-C-11-16 and Vinvigo, LLC t/a Vingo Wine & Spirits v. Bankcard Payment Services, et al., Docket No. MON-L-3859-14.

Ansell Grimm & Aaron attorneys regularly represent clients in real property and business related litigation matters. For additional information, please contact Lawrence H. Shapiro, Esq. (lhs@62q.f7d.myftpupload.com); 732-643-5257

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For more than 85 years, ANSELL GRIMM & AARON, PC has been dedicated to providing excellent legal representation. In providing zealous advocacy and skilled legal advice to our diverse clientele, our attorneys all practice with a common philosophy… commitment to excellence and commitment to people. For more information, visit us at 62q.f7d.myftpupload.com.

Bauchner Representing La Celia Owners in Construction Defect Suit

Ansell Grimm July 10, 2017

ANSELL, GRIMM & AARON, PC commenced two actions in the Supreme Court of the State of New York against L&M Development Partners, and its affiliates, for design and construction defects in two of its projects in Harlem, on behalf of plaintiffs La Celia Owners Corporation, located at 64 East 111^th Street, and PS90 Board of Managers, located at 220 West 148^th Street.

The actions assert, among other things, that L&M breached its contractual obligations and made negligent misrepresentations by failing to construct the buildings in accord with the terms of each Offering Plan. Indeed, the buildings were forced to retain engineering and construction firms to identify and remediate design and construction defects endemic to each building.

By example, at La Celia, the engineer’s work revealed significant leaks and penetrations throughout the building, fire hazards, items not constructed to Code, and that at least 70% of residents have insufficient cooling, likely due to “marginally sized and under-sized” PTAC units. At PS90, the engineer’s work revealed that the parapets and significant portions of the façade were defective, widespread water intrusion, and that the roof disclosed in the Offering Plan was not actually installed and is now in need of repair and replacement. Indeed, at PS90, large chunks of the façade have fallen off the building creating a serious safety hazard and compelling the installation of shedding and the closure of the courtyard.

Both buildings undertook efforts to amicably resolve these issues with L&M, but were unfortunately without success, necessitating the lawsuits. Joshua S. Bauchner, a partner with the law firm of Ansell, Grimm & Aaron P.C., and counsel to both buildings commented that “L&M prides itself on promoting development in low income communities. However, when it cuts corners to save a dime, it saddles residents with the significant costs of repair which they simply cannot afford, as L&M well knows. We are simply asking that L&M correct defects of their own making in accord with their express obligations under the Offering Plans.”

Christopher Therkorn, the Board president of PS90, echoed this sentiment, stating “Our entire building is under scaffolding right now as we were forced to repair the parapets, roof, and façade. At this time, our residents are confronted with these unbearable costs as L&M has sought to wash its hands of the matter.” And, Jon Winstone, the Board president of La Celia, noted that “When you are finally able to buy into what is promoted as a beautiful, new building your hopes are high. Then, those hopes are dashed when the ugly underbelly reveals itself — water leaks everywhere, insufficient air conditioning, and rampant Building Code violations.”

The actions are captioned La Celia Owners Corp. v. East 111 Associates, LLC, East 111 Mezzanine, LLC, East 111 Managers, LLC, L&M Development Partners, Inc., and L&M Builders Group, Index No. 654485/2017, and PS90 Board of Managers v. L&M Development Partners, West 147th Associates, LLC, West 147th Managers, LLC, L&M Builders Group, LLC, L&M West 147th Developers, LLC, Index No. 654603/2017.

Ansell Grimm & Aaron attorneys regularly represent clients in construction litigation and litigation against sponsor developers. For additional information, please contact Joshua S. Bauchner, Esq . (jb@62q.f7d.myftpupload.com) or Anthony J. D’Artiglio (ajd@62q.f7d.myftpupload.com) at (973) 247-9000.

Developers Continuing to Pursue Antitrust Suits

Ansell Grimm June 26, 2017

Fidelity Eatontown and QuickChek, represented by AGA attorneys Joshua Bauchner and Michael Ansell, will continue to pursue their claims against Excellency Enterprises, Kennedy Auto Service and others for attempting to eliminate competition in the local market for gas station convenience stores by preventing Plaintiffs’ developments from moving forward.

Fidelity Eatontown and QuickChek asserted violations of the Sherman Act and the New Jersey Antitrust Act, as well as claims for tortious interference and civil conspiracy, by Defendants after they filed allegedly frivolous litigations seeking to delay construction on Eatontown Planning Board approved developments by Fidelity and QuickChek.

According to a story published by www.law360.com by Joyce Hansen, U.S. District Judge Brian R. Martinotti “ruled that the developers had made claims that could show the gas station companies had tried to discourage competition by making baseless challenges to the developers’ planning applications.”

Bauchner told LAW360 “The court’s decision confirms that entities seeking to abuse the land use process by engaging in sham litigation to prevent lawful competition are properly subject to federal antitrust claims.”

For the full story on Judge Martinotti’s decision, visit www.law360.com.

ANSELL GRIMM & AARON, PC zoning and land use attorneys have successfully secured land use approvals for many notable projects throughout the State of New Jersey and our litigation practice group offers extensive legal acumen as well as an in-depth understanding of all commercial operations. Please contact Joshua S. Bauchner (jb@62q.f7d.myftpupload.com) or Michael H. Ansell (mha@62q.f7d.myftpupload.com) to discuss your case.

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Class Action Suit filed against Welch Foods, Inc. & The Promotion in Motion Companies, Inc.

Ansell Grimm April 11, 2017

ANSELL GRIMM & AARON, PC recently commenced a class action against Welch Foods, Inc. and The Promotion in Motion Companies, Inc. seeking redress for Defendants’ unconscionable and deceptive consumer practices in misrepresenting the fruit content and the nutritional and health qualities of Welch’s fruit snacks (the “Fruit Snacks” or “Products”), in the Superior Court of the State of New Jersey, Monmouth County.

The Complaint alleges that Defendants engaged in a deceptive marketing campaign to convince consumers that the Fruit Snacks contain significant amounts of the actual fruits shown in the marketing and on the labeling of the Products, are nutritious and healthful to consume, and are more healthful than similar products. In fact, these representations are not accurate.

For example, in a May 19, 2009 press release announcing the launch of the Island Fruits variety of the Fruit Snacks, Michael Rosenberg, President and CEO of Promotion in Motion, claimed, “Like all Welch’s® Fruit Snacks, new Island Fruits is made with Real Fruit and Fruit Juices . . . It’s a better alternative to lots of other snacks as it also contains 100% of the daily value of Vitamin C, 25% of the daily value of Vitamins A and E and is fat free. We find that Mom is putting one pack of Welch’s® Fruit Snacks Island Fruits in her kid’s lunchbox—and keeping one pack for herself.” Indeed, Defendants label and market the Fruit Snacks as “Made With REAL Fruit,” prominently depict a cornucopia of characterizing fruits on the front of each package, and prominently claim that “Fruit is our 1st Ingredient!”

However, Defendants’ Fruit Snacks contain only minimal amounts of the vibrantly depicted fruits, and are no more healthful than candy. In fact, two of the first three ingredients in the Fruits Snacks are added sweeteners. On average, sugar makes up 40% of each serving of the regular Fruit Snacks, 60% of each serving of the Fruit ’n Yogurt Snacks, more than half of each serving of the PB & J Snacks, and about 40% of the Fruit Rolls Snacks. The Products are mostly a combination of corn syrup, sugar, modified corn starch, juice from concentrate, and artificial flavors and dyes. The fruits that Defendants depict in the marketing and labeling of the Fruit Snacks are not the most predominant fruit in the Product and Defendants are only able to claim that “Fruit is our 1st Ingredient!” by violating federal labeling law.

Thus, although Defendants market their Fruit Snacks as healthful and nutritious, these Products are devoid of the health benefits Plaintiff and other reasonable consumers associate with consuming real fruit.

The Complaint alleges that Defendants’ deceptions played a substantial part in influencing Plaintiff’s, and other consumers’, decisions to purchase the Fruit Snacks. Plaintiff relied on Defendants’ “Made With REAL Fruit” claims prominently displayed on the front of the Products’ packages. If Plaintiff had known the true fruit content, as well as the true nutritional and health qualities of the Fruit Snacks she purchased, she would not have purchased the Fruit Snacks.

As a result, the Complaint alleges that Defendants’ deceptive statements regarding the Fruit Snacks violate state and federal law. Plaintiff asserts claims on behalf of herself and on behalf of all purchasers of the Fruit Snacks for Defendants’ violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”), the New Jersey Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 through 18 (“TCCWNA”), and for fraud, breach of express and implied warranties, and unjust enrichment.

Plaintiff is jointly represented by ANSELL GRIMM & AARON, PC and the RICHMAN LAW GROUP.

ANSELL GRIMM & AARON, PC regularly pursues claims on behalf of consumers deceived by marketing, labeling, or other misinformation concerning food and other products in the marketplace. If you, or someone you know, has purchased a product relying on deceptive information please contact Joshua S. Bauchner (jb@62q.f7d.myftpupload.com) or Michael H. Ansell (mha@62q.f7d.myftpupload.com) to discuss your case.

Wiechnik wins $2M verdict for Falcon Ridge

Ansell Grimm March 31, 2017

The Superior Court of New Jersey recently entered a $2M, verdict against Silver Fox, LLC, and in favor of Falcon Ridge Condominium Association, Inc. Falcon Ridge is a 27 building condominium situated in Hamburg New Jersey. Silver Fox, LLC, is the successor sponsor and developer of Falcon Ridge.

Falcon Ridge originally filed suit in December 2011, asserting a variety of claims, including negligence, breach of warranty and breach of implied warranty. Falcon Ridge’s expert, Mitchell Frumkin of KIPCON, Inc., estimated that Silver Fox’s negligence and breach of warranty caused $1,782,000.00, worth of damage to Falcon Ridge’s owners and residents. The parties attempted mediation, but the matter was not able to be settled amicably.

After a two-week, non-jury, trial, the Honorable Frank J. Deangelis ruled that Silver Fox had negligently constructed common elements. He ruled further that Silver Fox breached both implied and express warranties, in regards to Falcon Ridge’s buildings.

Mark Wiechnik, Chair of Ansell Grimm & Aaron’s Community Association Law Group’s Construction Defect Practice, oversaw the litigation since its onset, and personally represented Falcon Ridge at trial.

For questions concerning construction defects or any other litigation matters, please contact Mark Wiechnik, Esq. by email at mmw@62q.f7d.myftpupload.com.

Zoning Dispute To Continue in State Court

Ansell Grimm February 2, 2017

Ansell Grimm & Aaron recently secured a victory for its client, Old Bridge Township Raceway Park, permitting it to continue its fight in state court. For the past decade, Raceway Park has been involved in a zoning dispute with a neighboring property owner, Dayalbagh Radhasoami Satsang Association of North America (DRSANA), over its plans to build a house of worship and accompanying residential facilities near the famed drag strip.

The matter was before the Old Bridge Township Zoning Board of Adjustment for more than five years and has been the subject of battles in both state and federal courts.

For its part, DRSANA sought to limit all wrangling over its plans and the Zoning Board’s decision to federal court by entering into a consent decree seeking to resolve all issues; including Municipal Land Use Law challenges typically subject to state court review. Raceway Park’s attorneys filed objections to the approval in state court which DRSANA argued were precluded by the federal consent decree. In March of 2015, a judge of the Middlesex County Superior Court dismissed Raceway Park’s suit with prejudice finding the consent decree foreclosed the action.

Raceway Park appealed and on January 6, 2017, a three judge panel of the Appellate Division reversed the dismissal permitting the action to proceed in state court. Among other things, the Appellate Division considered whether the federal court consent decree served as an “end run” around the state court prerogative writ process for challenging zoning decisions; as Raceway Park was not a party to the federal case or the decree. The Appellate Division also concluded that the trial judge abused his discretion in dismissing the action with prejudice.

Raceway Park is represented by Ansell Grimm & Aaron partner, Joshua S. Bauchner, and by Michael R. Leckstein and Marc A. Leckstein of Leckstein & Leckstein LLC.

Ansell Grimm & Aaron attorneys regularly represent clients in pursuing their property rights against public and private incursion. For additional information, please contact Joshua S. Bauchner, Esq . (jb@62q.f7d.myftpupload.com) at (973) 247-9000.

Class Action suit filed against FieldTurf USA

Ansell Grimm January 17, 2017

Ansell Grimm & Aaron recently commenced a federal class action litigation against FieldTurf USA and its affiliates in the wake of revelations that the company made false claims about the durability of its artificial turf field systems for years despite knowledge of the product’s defects.

The lead plaintiff in the case is New Jersey Stallions Soccer Academy which installed a FieldTurf USA field in 2010 based on the deceptive information provided by the company.

According to an investigative report by NJ Advance Media, about a year after first beginning installation of the fields, internal communications of FieldTurf USA indicate that executives were concerned that the claims the company was making regarding the durability of the product were not accurate.

Despite being aware of the problems, and mounting evidence that the fields did not perform as claimed, the company continued to market the product with particular emphasis given to its purported durability.

In their advertising, the company claimed, “Making the wrong turf decision can cost you a million dollars”, their customers, such as the Stallions, may end up paying more to repair and replace the field than expected.

In a November 2007 email, a FieldTurf employee wrote that the company’s “claims made regarding the Duraspine… are ridiculous. Every day we are putting stuff out there that can’t and won’t live up to the marketing spin.”

Despite having such information in hand, “FieldTurf engaged in a systematic class-wide campaign to conceal Duraspine Turf’s numerous defects, of which FieldTurf had knowledge,” according to the complaint.

The complaint also noted, “As part of its investigation, NJ Advance Media commissioned the University of Michigan’s Breaker Space Lab to test turf fibers from three Duraspine fields in New Jersey. The tests confirmed the strength of the turf to be well below industry standards, and FieldTurf’s own standards.”

Because FieldTurf installed nearly 1,500 fields (164 in New Jersey) using the system between 2005 and 2012, and at no point during that time did they mention to potential customers the well-known issues with the product’s durability, the Class Action Complaint alleges, among other things, violations of the New Jersey Consumer Fraud Act (N.J. Rev. Stat. § 56:8-1 et seq.) and Breach Of Express Warranty Under New Jersey Law (N.J. Rev. Stat. § 12A:2-313).

Ansell Grimm & Aaron is joined by co-counsel Hagens Berman Sobol Shapiro LLP; Critchley, Kinum & Denoia, LLC and McManimon, Scotland & Baumann, LLC.

Any organization similarly victimized by FieldTurf’s deceptive marketing is eligible to join the suit. Please contact Joshua S. Bauchner, Esq, by email at jb@62q.f7d.myftpupload.com or by telephone at (973) 247-9000 for more information.

Bauchner representing Morristown businessman in effort to enforce easement

Ansell Grimm January 9, 2017

Ansell Grimm & Aaron partner Joshua S. Bauchner is representing Morristown business owner James Cavanaugh in his dispute with the town’s Parking Authority over the use of an easement behind his South Street buildings.

Cavanaugh is asserting the historic right to continued and appropriate use of the right of way as the means of loading and unloading for businesses on South Street. Thus far, attempts to have the Parking Authority institute proper controls on the use of the right of way by the neighboring residential building have been unsuccessful.

Problems arose when the Parking Authority granted easement rights to new residential and commercial establishments resulting in overburdening which effectively precluded Cavanaugh’s use. In the face of indifference on the part of the Parking Authority, the entity tasked with ensuring fair and equitable use of the easement, Cavanaugh was left with no choice but to litigate.

The dispute recently was featured in the Morristown Daily Record, available here:

http://www.dailyrecord.com/story/news/local/morris-county/2017/01/06/iron-bar-owner-morristown-parking-clash-over-back-alley-use/96241970/

Ansell Grimm & Aaron attorneys regularly represent clients in enforcing their property rights against public and private incursion. For additional information, please contact Joshua S. Bauchner, Esq . (jb@62q.f7d.myftpupload.com) or Anthony D’Artiglio, Esq. (ajd@62q.f7d.myftpupload.com) at (973) 247-9000.

Inside Edition picks up story on Pacelli’s suit against divorce attorney

Ansell Grimm December 5, 2016

Ansell Grimm & Aaron P.C. partner Josh Bauchner’s clients Atesa and Anthony Pacelli are back in the news, as the story of their lawsuit against Manhattan divorce lawyer Peter Cedeno was recently featured on Inside Edition. The Pacelli’s have filed suit against Cedeno, alleging malpractice and sexual assault because of his conduct when Atesa Pacelli had retained him to represent her when the couple was considering separating.

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