Bankruptcy

2024 Edition of Super Lawyers and Rising Stars Recognizes Ansell.Law Attorneys

Ansell Grimm April 3, 2024

The 2024 New Jersey Super Lawyers and Rising Stars list recognizes nine Ansell Grimm & Aaron attorneys.* Fewer than 5% of New Jersey attorneys are named to the annual Super Lawyers edition. “Rising Stars” are the legal profession’s up-and-coming attorneys, either under age 40 or practicing for ten years or less. These exceptional attorneys comprise fewer than 2.5% of New Jersey lawyers.

The attorneys appearing on the 2024 list of New Jersey Super Lawyers are:

Allison Ansell – Family Law

Mitchell Ansell – Criminal Defense, DUI-DWI, White Collar Crimes

Lawrence Shapiro – Business Litigation

Andrea White – Family Law

Attorneys recognized as 2024 Rising Stars are:

Brian Ashnault – Business Litigation

Anthony D’Artiglio – Business Litigation, Bankruptcy

Layne Feldman – General Litigation

Nicole Miller – General Litigation, Real Estate

Jonathan Sherman – Real Estate

*No aspect of this advertisement has been approved by the Supreme Court of New Jersey or the American Bar Association.

Rite-Aid’s Shuttering of Numerous Stores Illustrates the Challenges Faced by Commercial Landlords When a Tenant Files for Bankruptcy

Ansell Grimm November 7, 2023

By Anthony J. D’Artiglio

Pharmacy giant Rite-Aid’s bankruptcy and proposed reorganization plans have had wide-ranging and cascading impacts from coast to coast. But perhaps the most immediate and acute effects of the company’s insolvency are felt by the commercial landlords that host the scores of leased locations that Rite-Aid intends to close as part of its restructuring strategy. This includes its planned sale of 78 Rite Aid and Bartell Drugs neighborhood pharmacy leases in free-standing buildings and retail shopping centers across nine states.

The challenges and uncertainty now faced by Rite-Aid’s lessors illustrate those regularly confronted by commercial landlords when a tenant’s bankruptcy or insolvency leaves them with unoccupied spaces and significantly diminished cash flow. As such, landlords must understand their options, rights, and remedies under the Bankruptcy Code to minimize the fallout and avoid inadvertent and costly mistakes when a tenant suddenly shutters its doors during a current lease term.

Assumption, Rejection, and Assignment of Lease Under Bankruptcy Code Section 365

Bankruptcy Code Section 365 governs the treatment of commercial leases in bankruptcy cases. Since the automatic stay, at least initially, limits the remedies and actions a landlord can take regarding the defaulting tenant, what happens next is largely up to the tenant.

A tenant typically has 120 days after filing its bankruptcy petition to either reject, assume, or assume and assign or sell the lease.

While a bankruptcy judge can extend the 120-day deadline for an additional 90 days for good cause without the lessor’s consent, the landlord’s assent is required for any further extension requests.

During this period, the tenant must continue to satisfy its ongoing lease obligations, including paying rent, with post-petition rent obligations prioritized as an administrative claim. Notably, the lessor must continue to comply with the lease’s terms during this time or risk running afoul of the automatic stay.

If the debtor does not assume or reject its lease within the applicable time, the court will consider the lease rejected, and the tenant must then immediately vacate the leased premises.

Option 1: Rejecting the Lease

If a debtor elects to reject the lease, it essentially defaults and, accordingly, must vacate the premises. Upon rejection, the lessor can assert a “rejection damage” claim, which is considered a prepetition unsecured claim—sharing pro rata with other general unsecured creditors. Unlike other rejection damage claims, however, Bankruptcy Code Section 502(b)(6) caps the lessor’s rejection claims to the greater of one year’s rent or 15% of the rent of the remaining term of the lease, capped at no more than three years of total rent.

Option 2: Assuming the Lease

If the lessee opts to assume the lease, it essentially agrees to continue the lease, comply with its terms going forward, and cure any defaults. The lessee will identify the defaults to be cured and afford the lessor the opportunity to object to the proposed cure if it is insufficient. The debtor must also compensate the lessor for “any actual pecuniary loss” caused by the debtor’s default and provide the lessor with “adequate assurance of future performance.”

Option 3: Assuming and Assigning (or Selling) the Lease

Notwithstanding any anti-assignment language in the lease or any landlord objections, the debtor can elect to assume the lease and assign or sell it to a third party, as Rite Aid seeks to do with several leases. As with all lease assumptions, the tenant (and its assignee) must cure any outstanding defaults and provide adequate assurances of the assignee’s future performance of its lease obligations.

Additional Protections and Assurances for Shopping Center Lessors

Many, if not most, of the leases Rite-Aid seeks to unload are in retail shopping centers. The Bankruptcy Code provides special protections for shopping center lessors when a debtor assumes and assigns its lease.

Specifically, Section 365(b) requires debtors and assignees to provide the landlord with “adequate assurance” that:

The source of rent and other consideration due under the lease and the financial condition and operating performance of the proposed assignee and its guarantors, if any, will be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor started its tenancy.
Any percentage of rent due under the lease will not decline substantially.
Assumption or assignment of such lease is subject to all lease provisions, including those relating to radius, location, use, or exclusivity, and the assignment will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to the shopping center.
Assumption or assignment of the lease will not disrupt any tenant mix or balance in such shopping center.

Failure to deliver any such assurances can support a lessor’s objection to any proposed assumption or assignment of the lease.

If you have concerns about your options as a landlord regarding an insolvent or bankrupt tenant or need assistance protecting your rights in a pending bankruptcy proceeding, please contact Anthony D’Artiglio at Ansell.Law.

Anthony J. D’Artiglio Elevated to Litigation Team Leader

Ansell Grimm October 18, 2023

Ansell.Law is pleased to announce that partner Anthony J. D’Artiglio has been elevated to Litigation Team Leader for North New Jersey. This new role complements his mentoring and leadership abilities within the Firm. D’Artiglio will manage the Firm’s North New Jersey litigation presence. Additionally, he will work closely with Firmwide Litigation Department Chair Lawrence H. Shapiro to shape the department’s future.

Based in the Firm’s Woodland Park office, D’Artiglio’s practice encompasses litigation, bankruptcy, controlled substances and regulatory law, and labor and employment. A seasoned attorney, he litigates a broad range of commercial matters, including commercial lease disputes, class actions, Consumer Fraud Act claims, corporate and shareholder disputes, employment disputes, and secured property actions. He also routinely represents creditors in bankruptcy matters.

D’Artiglio is licensed in New York and New Jersey. Best Lawyers in America has recognized him as a “One to Watch” since 2021.

Law, Not Lease, Defines Default

Ansell Grimm September 27, 2023

In a victory for landlords dealing with a tenant in bankruptcy, Ansell.Law attorney Anthony D’Artiglio recently secured a ruling in a reported decision that broadly defined the “defaults” tenants must cure in order to assume a lease. The decision in In re Old Market Group Holdings Corp. clarifies that a “default” as set forth in the Bankruptcy Code is given its ordinary meaning, regardless of any narrower definition of default contained in the lease.

The firm represented 400 Walnut Avenue, LLC (“Walnut”), which owned a product distribution center leased by the debtor, Fairway Group Holdings (“Fairway”), a regional grocery store chain. Fairway filed for Chapter 11 bankruptcy protection and sold most of its assets under the confirmed plan of reorganization. This included assigning its lease of Walnut’s property to another supermarket chain according to Section 365 of the Bankruptcy Code. Section 365 permits a debtor-lessee under an unexpired lease to assume (and subsequently assign) that lease if the debtor believes that assumption is in the estate’s best interest. If there is an existing default under the lease, Section 365(b)(1) requires that the debtor cure any such defaults as a prerequisite to assumption, among other obligations of the debtor.

The dispute concerned Fairway’s responsibility, under Section 365(b), to cure defaults under its lease — specifically, its failure to make required repairs — when it assigned that lease. Fairway claimed that it had no obligation to make those repairs as its failure to do so was not a “default” as defined in the lease because Walnut allegedly did not demand that Fairway make those repairs before Fairway filed for Bankruptcy. As such, Fairway asserted that it could not be liable for the cost to make repairs to the property because no “default” — as defined by the Lease — occurred prior to Bankruptcy.

“Any Failure To Perform” = Default

In response, Walnut argued that any notice provision in the lease was irrelevant because a “default” under an assumed lease is given its ordinary meaning pursuant to Section 365, not the terms of the lease, and the outstanding repairs constituted a default as that term is plainly understood — a failure to perform a defined obligation. Accordingly, Fairway should be responsible for the cost of any repairs.

The bankruptcy court rejected Fairway’s position and agreed with the argument put forth by D’Artiglio on behalf of Walnut. The court ruled that: “Both the text and the purposes of [Section 365(b)(1)] compel the conclusion that the statutory term ‘default’ means any failure to perform under the assumed contract or lease, regardless of the definition of default contained in that contract or lease.”

The court went on to note that “Consideration of the purposes of Section 365(b)(1) reinforces the conclusion that the statutory term ‘default’ should be construed to include any failure to perform contractually required obligations.” Citing prior decisions, the court further stated that “The case law is consistent with this plain-meaning reading of the statute. When debtors seek to assume leases or contracts under which they have failed to make required repairs, courts routinely require the debtor to make those repairs — that is, to cure the defaults — as a condition to assumption.”

The interpretation of “default” articulated by the court applies to assumed executory contracts and assumed unexpired leases. The ruling Ansell’s lawyer obtained means that debtors will likely need to cure any failure, shortcoming, or unfulfilled obligation under a lease or contract — whether material or not, whether a “default” as defined in the agreement or not — before they can assume or assign such agreements. This further protects parties, including lessors, whose interests may be adversely affected by an uncured contract breach by a debtor.

If you have any questions about this case or its impact, please contact Anthony D’Artiglio.

BANKRUPTCY DEPARTMENT UPDATE – FEBRUARY 2023

Ansell Grimm February 1, 2023

Led by Department Chair James G. Aaron, in coordination with partners Joshua S. Bauchner and Anthony J. D’Artiglio, Ansell’s attorneys are well versed in the intricacies of bankruptcy practice. Our bankruptcy attorneys are here to offer the knowledge and advice about the benefits and detriments of the different types of bankruptcy; Chapter 11, Chapter 13, and Chapter 7 proceedings, all of which should be considered prior to any individual or business filing for bankruptcy. Before filing, our attorneys will provide a complete analysis of our client’s assets and guide them through the establishment of an asset protection plan.

The Firm represents numerous national and state banking institutions, Fortune 500 companies, and many local corporate entities in restructuring corporate debt, and represents both creditors and debtors in all proceedings.

In particular, the Firm represents commercial landlords whose tenants file for bankruptcy. The landlord becomes an estate creditor and has numerous, defined rights under the U.S. Bankruptcy Code. As set forth below, Ansell recently experienced significant success on behalf of our landlord/creditor clients protecting their interest in realty and securing against abuse of the bankruptcy process by recalcitrant debtors.

The firm also handles state court insolvency matters, an alternative to federal bankruptcy, known as an assignment for the benefit of creditors (“ABC”). Similar to a Chapter 7 liquidation proceeding, an ABC permits a debtor to assign its claims to an assignee — here, an attorney with the Firm appointed by the Court — to pursue preferential and fraudulent claims under state law.

By example, here are some of the Firm’s recent successes in this practice area:

Recovery for Landlord in Debtor’s Attempt to Escape Obligations

Partner Anthony J. D’Artiglio and Shareholder and department co-chair Joshua S. Bauchner recently secured a favorable decision from the Bankruptcy Court in the Southern District of New York in the Fairway Group Holdings Corp. matter. Our client, Debtor’s property owner, filed a multi-million-dollar cure objection asserting that Debtor had failed to repair and maintain the property in accord with its lease obligations, and thus needed to make the necessary repairs or pay for the repairs as part of the lease assumption and assignment. Debtor sought to dismiss the cure objection, arguing that the new tenant was responsible for all pre-assignment defects as part of the lease’s ongoing repair and maintenance obligations and that, because property owner did not issue a default notice pre-petition pursuant to a lease provision, property owner could not claim that a “default” existed requiring cure pursuant to the Bankruptcy Code. The Court resoundingly rejected Debtor’s arguments, holding that (i) Debtor is responsible for all necessary pre-assignment repairs pursuant to the lease because the buyer took the property “free and clear” of any and all defaults by Debtor at the time of the assignment, and (ii) landlord was not required to formally notice a “default” under the lease to seek the cost of repairs from Debtor for any pre-assignment condition in need of repair particular where, as here, Debtor was on notice upon the filing of the cure objection. As a result of this favorable ruling, our client can recover millions of dollars in repair costs.

Conversion to a Chapter 7 and Vacature of Extension of Automatic Stay

The Firm successfully compelled conversion of a meritless Chapter 11 to a Chapter 7 proceeding and convinced the Court to vacate an extension of the automatic stay to the principal’s of the Debtor company. Debtor filed a Chapter 11 petition in the District of New Jersey just before it and its principals were scheduled to face trial in the Western District of Missouri on multi-million dollar fraudulent scheme related to the sale of a business. Led by Joshua S Bauchner and Anthony J. D’Artiglio, the firm successfully convinced the Court to vacate an extension of the automatic stay to the principals of Debtor who sought to utilize the Bankruptcy to shield themselves from liability. Furthermore, we vigorously opposed confirmation of a meritless Plan of Reorganization, culminating in Debtor voluntarily converting its Chapter 11 reorganization to a Chapter 7 liquidation requiring the appointment of a Trustee to pursue our client’s and other creditors’ interests. As a result, the adversary complaint and related Bankruptcy matters were dismissed in New Jersey permitting the action to proceed to trial in Missouri.

Protection for Landlord from Tenant Bankruptcy

Partner Anthony J. D’Artiglio and Shareholder Joshua S. Bauchner secured an extremely favorable settlement on behalf of a property owner whose tenant filed for bankruptcy after failing to make any rent payments over a prolonged period. Following our filing of an application to compel lease rejection or for relief from the automatic stay, the tenant agreed to pay outstanding rent and additional rent, our client’s attorneys’ fees and costs, and to increase the security deposit as a condition of assumption of the lease, ensuring the property owner was not harmed by the tenant’s bankruptcy filing.

Relief for Landlord from Automatic Bankruptcy Stay

Partner Anthony J. D’Artiglio and Shareholder Joshua S. Bauchner successfully secured relief from the automatic bankruptcy stay for a landlord whose tenant had sublet the property without authorization, failed to pay substantial rent, and additional rent due and owing. We successfully convinced the Court to order the tenant to make post-petition payments on an ongoing basis and to lift the automatic stay to permit the property owner to pursue the tenant for damages and eviction in State Court while the bankruptcy remained pending.

For additional information concerning Ansell’s Bankruptcy Department, please contact us at (973) 247-9000, or email James G. Aaron (jga@ansellgrimm.com), Joshua S. Bauchner (jb@ansellgrimm.com), or Anthony J. D’Artiglio (ajd@ansellgrimm.com).

About Ansell Grimm & Aaron, PC
Ansell Grimm & Aaron, PC was founded in 1929 and has a long history of delivering for clients who come to us to resolve legal matters that are often urgent, stressful, and of great importance. A general practice law firm, Ansell Grimm & Aaron is powered by experienced attorneys who understand that the best outcome is the one that serves the needs of each client.

The above is for informational purposes only and does not constitute legal advice. Transmission of the materials and information contained herein is not intended to create, and receipt thereof does not constitute the formation of, an attorney-client relationship. Attorney advertising.

Ansell Grimm & Aaron 2021 Litigation Roundup

Ansell Grimm January 20, 2022

As the world continues to struggle with the coronavirus pandemic, and millions of small and mid-sized businesses continue to be confronted with unprecedented challenges, the attorneys in Ansell Grimm & Aaron’s Litigation Department assisted the Firm’s clients in protecting their businesses and livelihoods. Led by co-chairs Lawrence Shapiro and Joshua Bauchner, and assisted by attorneys Barry Capp, Anthony D’Artiglio, Stefan Erwin, Rahool Patel, Seth Rosenstein, and Ashley Whitney, the Department is pleased to share its numerous successes.

Bankruptcy Litigation & Debtor/Creditor Matters

Ansell Grimm & Aaron successfully compelled conversion of a meritless Chapter 11 Bankruptcy to a Chapter 7 and convinced the Court to vacate an extension of the automatic stay to principal’s of the Debtor company. Debtor filed a Chapter 11 petition in the District of New Jersey just before it and its principals were scheduled to face trial in the Western District of Missouri on multi-million dollar fraudulent scheme related to the sale of a business. Led by Joshua S Bauchner and Anthony J. D’Artiglio, the firm successfully convinced the Court to vacate an extension of the automatic stay to the principals of Debtor who sought to utilize the Bankruptcy to shield themselves from liability. Furthermore, we vigorously opposed confirmation of a meritless Plan of Reorganization, culminating in Debtor voluntarily converting its Chapter 11 reorganization to a Chapter 7 liquidation requiring the appointment of a Trustee to pursue our client’s and other creditors’ interests. As a result, the adversary complaint and related Bankruptcy matters were dismissed in New Jersey permitting the action to proceed to trial in Missouri.

Breach of Contract Litigation

The Ansell Grimm & Aaron team continued its efforts to recover sums owed to its clients in connection with finance agreements and contracts for the provision of certain services. We doggedly pursued our clients’ counterparties who absconded with loaned funds and enjoyed the benefit of services rendered, resulting in substantial recoveries and settlements for our dedicated and hard-working clients. By way of example, in one action brought on behalf of a trucking insurance agency that guaranteed payments for its client, the insured failed to make millions of dollars in payments under its finance agreement and created a new entity to hide its property and assets from collection. We aggressively tracked down the fraudulently transferred assets, brought the insured’s owner and his new entity into the action, and secured a favorable settlement prior to trial.

Partnership Dispute Litigation

The firm successfully obtained temporary restraints enacted to avoid continued irreparable harm to our client in a derivative action asserting claims against our client’s former business partners for, inter alia, unfair competition, fraud, and breach of fiduciary duty, based on their acts of engaging in direct competition with their shared business and allowing their family members to use the company’s proprietary information to siphon clients and profits from the business. The temporary restraints prevented all competition with our client’s business and provided the leverage necessary to negotiate a dissolution of the business which allowed our client to extricate himself and pursue independent ventures.

Real Estate Litigation

The firm works closely with real estate professionals across the region to protect their rights and put practices in place to minimize potential liability. In an action filed earlier this year on behalf of a Hudson County-based real estate broker, the Firm sued a national real estate developer after the failure to pay a referral fee offered under the developer’s agreement with local brokers. These efforts resulted in our client recovering a substantial portion of the referral fee owed to it, and the same broker subsequently engaged our team to revise their agreements used with clients — and to speak with the broker’s team of agents about mitigating risk and general best practices.

FINRA Matters

In addition to serving as a Financial Industry Resolution Authority (FINRA) Dispute Resolution Services arbitrator, associate Seth Rosenstein also practices before FINRA arbitration panels. In an arbitration filed against a national broker-dealer, the Firm sought an award requiring removal of incorrect and misleading information set forth on the broker-dealer’s Form U5 issued for our client, and for the expungement and removal of the information from FINRA’s Central Registration Depository and BrokerCheck system. Our efforts resulted in the broker-dealer issuing an amended Form U5 that removed the incorrect and misleading information, correcting an injustice that falsely besmirched our client’s reputation.

Police Benevolent Association Matters

Earlier this year, Attorney Ashley V. Whitney filed an appeal with the New Jersey Supreme Court challenging an opinion from the Appellate Division which upheld the termination of a police officer with no prior discipline for alleged violations of the Criminal Justice Information System through his use of full-disclosure vehicle registration searches despite the police department’s failure to identify a single full-disclosure search conducted without justification. The Appellate Division’s decision may have a lasting impact upon the law enforcement community as the performance of searches by police has not been significantly addressed by New Jersey Courts since the decision in State v. Donis, 157 N.J. 44 (1998). The decision is especially pertinent to the issues facing police as it comes on the heels of the Supreme Court’s decision in the matter of In re AG Law Enf’t Directive Nos. 2020-5 & 2020-6, 2021 N.J. LEXIS 486 (June 7, 2021), which upheld the New Jersey Attorney General’s Directives requiring the release of the names of police officers who receive major discipline.

Ms. Whitney continued her prior practice of the representation of police officers as a member of the PBA Legal Protection Plan at the Firm’s Woodland Park office, which included the defense of a high-ranking correctional police officer served with inflated disciplinary charges seeking termination. Following a departmental hearing and the presentation of favorable witness testimony, the employer decreased the proposed penalty from termination to suspension and we are awaiting a final decision.

Class Action Litigation

Ansell Grimm & Aaron successfully obtained dismissal of a nationwide class action in the District of New Jersey for lack of subject matter jurisdiction. Plaintiff brought claims against related to beauty products against the seller, shipper, and a host of individuals and entities. We filed a Motion to Dismiss pursuant to Federal Rule 12(b)(1) asserting the Court lacks subject matter jurisdiction as a result of a pre-litigation, full refund offer by our client to the aggrieved consumer. The Court agreed that the full refund offer made in the ordinary course of business operated to moot Plaintiff’s claims, and dismissed the entire action.

Public Entity Litigation

Ansell Grimm & Aaron successfully secured summary against Plaintiff on a multi-million dollar claim against the City of Bayonne, wherein Plaintiff alleged that Bayonne discriminated against him when it condemned and subsequently demolished a rental property he owned because it was unsafe. We successfully convinced the Court that the claims were barred by the statute of limitations, that the demolition did not constitute a taking within the meaning of 11 U.S.C. 1983, and that Plaintiff’s tort claims could not be asserted against a municipality as a matter of law, leading to dismissal of the entire case.

Ansell Grimm & Aaron Welcomes Lateral Hire to Woodland Park Office

We are pleased to announce Stefan J. Erwin, Esq. has joined Ansell Grimm & Aaron. Mr. Erwin is a Trial Attorney who came to Ansell from an established Newark practice where he represented the largest cities in New Jersey. Mr. Erwin brings nearly a decade of experience to the firm specializing in complex commercial litigation, criminal defense, appellate practice, labor and employment law, public entity, and civil rights. Mr. Erwin graduated from Rutgers University with dual degrees in Political Science and Criminal Justice, and then attended Rutgers Law School where he interned for the Honorable Noel Hillman in the United States District Court for the District of New Jersey. After law school, he clerked for the Honorable James Hely, J.S.C. of the Superior Court Law Division in Union County. He has taught public school children a course in Constitutional Law, founded a local community garden, and sat on the board of a charter school. Mr. Erwin has received several favorable jury verdicts for his clients in the Public Defender’s Office where he litigated cases from inception through appeal.

Best of the Best

It is with great pleasure that Ansell Grimm & Aaron, PC has been named “Best of the Best” Law Firm in the 2021 Official Community Choice Awards published by the Asbury Park Press. This recognition is greatly appreciated as it was not determined by the Bar or another professional organization, but rather by the community we serve on a daily basis.

Quarterly Litigation Department Roundup: April 2021

Ansell Grimm April 6, 2021

As the world continues to face the coronavirus pandemic, and millions of small businesses remain confronted with unprecedented challenges, the attorneys in Ansell Grimm & Aaron’s Litigation Department assisted dozens of clients in protecting their businesses and livelihoods. Led by co-chairs Lawrence Shapiro and Joshua Bauchner, and assisted by attorneys Barry Capp, Anthony D’Artiglio, Rahool Patel, Seth Rosenstein, Ashley Whitney, and, our newest member, Courtney Dunn, the Department is pleased to share its numerous successes.

Real Estate Litigation

In a recent matter before the Honorable Henry P. Butehorn in Monmouth County, Lawrence Shapiro and Seth Rosenstein were successful in securing summary judgment in favor of their clients as to all claims prior to trial. Plaintiffs asserted causes of action sounding in common law fraud, violations of the New Jersey Consumer Fraud Act, Unjust Enrichment, Negligence, Breach of Contract, and Equitable Servitude in connection with their purchase of real property in Ocean Grove, New Jersey. The sellers, who own the property sold to Plaintiffs as well as an adjoining property, prohibited the buyers from utilizing a walkway on sellers’ adjoining property to access the rear entrance to buyers’ home. The buyers asserted that representations were made by sellers as to their ability to utilize sellers’ walkway, and that they overpaid for their property if there was no access through the rear entrance.

Judge Butehorn’s Order found that there was no basis upon which to establish claims for common law fraud or Consumer Fraud against the defendants. Specifically, the Court agreed with AGA’s argument that any representation as to walkway access on adjacent property was not part of the transaction at issue and thus could not serve as a basis for a claim of fraud or consumer fraud.

Plaintiffs subsequently filed a motion for reconsideration of the Court’s summary judgment order, which was denied, confirming the victory for our client.

Appellate Litigation

Barry Capp succeeded before the Appellate Division in upholding the validity of the City of Asbury Park’s short-term rental (Air BnB) ordinance, which permitted and established procedures for the short-term rental of residential properties. The plaintiff filed a complaint in the Law Division, Monmouth County, alleging that the ordinance was adopted improperly and that Ordinance itself was facially invalid.

The Ordinance defines those classifications of properties where short-term rentals are both permitted and prohibited. It further establishes a permitting process for property owners who wish to utilize their properties as short-term rentals. Plaintiff asserted a challenge to the manner in which the Ordinance was adopted, claiming that it creates a “new” use of residential property that is a non-permitted and, therefore, was required to be adopted as a zoning ordinance pursuant to the procedures contained in the Municipal Land Use Law (MLUL). Plaintiff further claimed that the use of residential property for short-term rentals violates the City of Asbury Park’s zoning ordinance and therefore was required to be invalidated.

In a thirteen (13) page unanimous decision, and a major victory for the City of Asbury Park, the Appellate Division upheld the City’s actions in adopting the Ordinance and its validity pursuant to its municipal police powers. In so doing, the Appellate Division affirmed the right of owners of certain classifications of property to use their properties as short-term rentals pursuant to procedures established by the City of Asbury Park and its governing body.

Bankruptcy Litigation

Joshua Bauchner and Anthony D’Artiglio are pursuing a multi-million dollar cure dispute in Southern District of New York Bankruptcy Court, seeking to compel a retail Debtor who operated a chain of grocery stores to pay for numerous, needed repairs to a large production and distribution facility. The Debtor failed to maintain the property in the condition required by the Lease, leading to large scale deterioration. The case presents interesting legal questions at the intersection of commercial landlord-tenant law and Bankruptcy law, particularly in light of the new tenant’s assumption of the Lease “as is” as part of the Bankruptcy proceedings.

Class Action Litigation

Joshua Bauchner and Rahool Patel continue the defense of multiple class actions filed against New Jersey Retrofitness gym franchises. This now seven-year old litigation is on remand from the Appellate Division, where the firm successfully secured the dismissal of seven of the eight claims, dramatically narrowing the scope of the litigation. As a result of numerous procedural challenges encountered by plaintiffs, the matter is back at the pleading stage ensuring our already strapped gym clients are not at risk of liability anytime soon.

COVID-19 Litigation

Department attorneys continue to represent national retail and restaurant tenants in numerous COVID-19 Pandemic-related litigations, securing temporary restraints and preliminary injunctive relief to prevent self-help lockouts, restore utilities, permit outdoor dining, and stay eviction actions. As pandemic law remains largely unsettled, the Firm presented novel legal arguments to secure favorable decisions and settlements on behalf of many clients, and are preparing for what is understood to be the first trial in the State addressing the impact of Governor Murphy’s Executive Orders restricting operations.

Policeman Benevolent Association Litigation

Ashley Whitney is waiting on a decision from the Appellate Division involving the termination of a police officer with no prior discipline for alleged Criminal Justice Information Systems violations under State v. Donis, through his use of full-disclosure searches despite the police department’s failure to identify a single full-disclosure search conducted without justification. The Appellate Division’s decision could have lasting implications for police officers as there is little case law addressing the application of Donis in this context.

Ms. Whitney also is continuing her prior practice of the representation of police officers as a member of the PBA Legal Protection Plan at the Firm’s Woodland Park office and is currently defending a high-ranking correctional police officer served with inflated disciplinary charges.

Personnel Successes

Courtney Dunn joined as an associate with the Firm. Prior to joining Ansell Grimm & Aaron, Ms. Dunn practiced commercial litigation along with sports and entertainment law, labor and employment law, and toxic tort law at a firm in New York City. Ms. Dunn received her juris doctor, cum laude, from the Elisabeth Haub School of Law at Pace University where she was a Pro Bono Scholar and worked as a research assistant to Professor Donald L. Doernberg. During law school, Ms. Dunn interned for Justice Terry J. Ruderman, J.S.C. of the Supreme Court of New York. She also served as an Articles Editor on the Pace International Law Review and was a member of the Moot Court Honors Board.

Following law school, Ms. Dunn served as a law clerk to The Honorable Judge Craig L. Wellerson, the Presiding Civil Division Judge of the Ocean Vicinage of the Superior Court of New Jersey. Ms. Dunn is admitted to practice in New Jersey and New York as well as the Southern District of New York and the Eastern District of New York

Anthony D’Artiglio was named as “One To Watch” by Best Lawyers Magazine, for commercial litigation. We congratulate Mr. D’Artiglio on this remarkable achievement.

Joshua Bauchner interviewed in Newsday about the Sears’ bankruptcy causing local store closings.

Ansell Grimm November 14, 2019

Joshua Bauchner discusses Sears’ bankruptcy causing local store closings in Newsday

Don’t forget! Disclose those HOA documents as part of your home sale

Ansell Grimm January 9, 2019

Community Association Practice Partner Richard B. Linderman discusses what material facts are in HOA documents that buyers need to know in an interview with HomeLight Reporter Christine Bartsch.

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Lawsuit Protocol: Call Attorneys, But Take Time for Business

Ansell Grimm August 31, 2018

In an Associated Press interview that appeared in US News & World Report Partner Joshua S. Bauchner discusses the challenges facing small businesses juggling the demands of a lawsuit while managing their day-to-day operations.