Litigation

Protecting Small Businesses and Property Owners From Serial Plaintiffs and Self-Appointed “Testers” Who File Nuisance Suits Under the Americans With Disabilities Act

Ansell Grimm October 3, 2023

Twenty-five years after its passage, the Americans With Disabilities Act (ADA) has quite literally reshaped the landscape for disabled individuals, allowing them to participate more fully in society and avail themselves of the same facilities, services, and opportunities as everyone else. However, the ADA’s impact on the lives of millions of Americans has been matched by its impact on countless public-facing business and property owners who have had to modify their physical and online presence, practices, and properties to comply with the act’s accessibility requirements.

Title III of the ADA prohibits discrimination against people with disabilities by businesses open to the public. The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, and websites and has provided detailed requirements for how companies must do so. However, satisfying those requirements can be tricky, even for the most well-intentioned and diligent businesses. If a person with disabilities wants to enter a store, visit a website, or obtain services but cannot do so because the business has not complied with the ADA, that person can file a lawsuit for such shortcomings, leading to costly and disruptive litigation that can cause both financial and reputational harm.

Self-Appointed “Testers” File Thousands of Shakedown ADA Suits Each Year

But the risk of ADA-related litigation doesn’t just come from individuals who were actually prejudiced or denied access or services. For all its benefits, the ADA has also become a tool for serial plaintiffs and legal counsel, many of whom have never attempted and never intended to patronize a business, to file questionable, if not frivolous, lawsuits designed solely to shake down the business for a quick payout.

These nuisance ADA suits have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013. Many plaintiff’s law firms file hundreds of cookie-cutter ADA lawsuits each year, often utilizing the same serial plaintiffs for each action. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims.

Small businesses bear the brunt of this abusive litigation, as serial plaintiffs – often labeling themselves as self-appointed ADA compliance “testers” – specifically target small businesses because they typically have limited means to defend themselves. Given the potential damages, including the payment of exorbitant attorneys’ fees, settlement is not just the path of least resistance; it may be the only path for a small business that wants to avoid a potentially devastating judgment.

So, what can small business owners do to reduce the risk of finding themselves in the crosshairs of a serial ADA plaintiff?

Hire a Certified Accessibility Specialist To Conduct a Compliance Assessment

You can’t fix a problem you don’t know you have. Perhaps the single most important thing you can do to limit exposure from accessibility lawsuits is to conduct a complete accessibility assessment and review of your facilities and online presence. A Certified Accessibility Specialist (CASp) can evaluate your property or internet presence, identify specific accessibility issues, and then supply you with the compliance requirements specific to your facility and website. Similarly, if you are planning new construction or alterations, a CASp can review your building plans and specifications to ensure the resulting construction will be ADA-compliant.

Once you have a complete picture of all accessibility issues with your facility or website, the next step is working to remove barriers and impediments to access. “Barrier removal” is one of the key elements of the ADA, and whether you need to make modifications or alterations to remove any identified barriers depends on whether such changes are “readily achievable,” which is defined “as easily accomplishable and able to be carried out without much difficulty or expense.” This is a very fact-specific analysis that depends on the complexity and costs involved in removing the barrier as well as the size and financial condition of the business. A CASp can assist in identifying barriers and also advise as to whether removal is “readily achievable” under the ADA.

Keep Your Eye on the Supreme Court

In its new term starting this month, the U.S. Supreme Court will decide whether self-appointed “testers” who do not suffer actual harm because of an alleged ADA violation have standing to sue under the act. The Court’s decision in Acheson Hotels, LLC v. Laufer will resolve a split between federal appellate courts on the issue and could have a seismic impact on the viability of ADA nuisance suits against small businesses if it rules that such individuals do not, in fact, have standing to sue. The importance of the case can be seen in the fact that 47 organizations have filed amicus briefs with the Court, advocating both for and against tester standing.

Hire Experienced ADA Defense Counsel

Before reflexively giving in to an ADA plaintiff and settling a claim, small business owners should consult with experienced counsel who can evaluate the complaint and determine the best path forward. As noted, many complaints filed by “testers” are cookie-cutter and may contain boilerplate allegations of deficiencies that do not actually exist. It is often the case that an aggressive defense of the claims – particularly when the claims are frivolous – benefits both the business or property owner defending the action, as well as the greater community by deterring vexatious litigation primarily focused on lining counsel’s pockets.

If you have questions about your ADA obligations and protecting against accessibility lawsuits, please contact Seth Rosenstein at Ansell.Law.

SEC Approves Sweeping FINRA Rule Changes That Will Make Expungement More Difficult for Broker-Dealers and Associated Persons

Ansell Grimm July 21, 2023

By Seth M. Rosenstein

It is the rare FINRA-registered professional who does not face a customer complaint at some point in their career, and it is rarer still to find one who would not prefer to have customer dispute information expunged from the Central Registration Depository (“CRD”). But on April 12, 2023, the SEC approved changes to the FINRA rules regarding expungements and expungement hearings that will significantly alter how and when negative marks on professionals’ records are removed from the CRD and BrokerCheck.

The substantive and procedural changes were largely due to pressure put on FINRA by customer advocates and state securities regulators to make it more difficult to obtain an expungement. A 2021 PIABA study, for example, revealed that FINRA arbitrators approved 90% of the expungement requests they received.

Concerns About Straight-in-Requests in Particular

While some updates relate to all requests for expungement of customer dispute information, others only apply to each of the two types of hearings through which expungements can be obtained. This includes specific procedural changes to “straight-in-request” arbitration hearings, which are commenced by an associated person separate from a customer-initiated arbitration (as opposed to “on-behalf-of-requests” that are filed at the conclusion of an investment-related customer-initiated arbitration).

FINRA was particularly concerned about issues with straight-in-request arbitration proceedings, which often involve complaints brought and resolved many years before the expungement request. As FINRA expressed in an April 2022 discussion paper, the rule changes sought to address four shortcomings it identified with such hearings:

The unavailability of documents or information relating to disputes that occurred years prior. FINRA noted that two-thirds of straight-in-requests filed between 2016-2021 were filed more than six years after the customer dispute was initially reported.
The lack of customer participation in straight-in-requests leading to only one side presenting evidence and testimony.
The firm named in a straight-in request may have no relevant documents pertaining to the customer dispute because the event occurred while the associated person was employed at a different firm.
“Arbitrator shopping” by associated persons who make repeated attempts to seek expungement of the same customer dispute.

Changes That Apply to All Expungement Arbitration Hearings

These updates apply to both straight-in-request (FINRA Rule 13805) and on-behalf-of-request (FINRA Rule 12805) expungement hearings:

Arbitration panels can only issue expungement relief if they unanimously find that:
- the claim or allegation is factually impossible or clearly erroneous;
- the associated person was not involved in the alleged conduct; or
- the claim or allegation is false.
FINRA must notify state securities regulators of all expungement requests.
The associated person requesting expungement must appear at the hearing in person or by video conference.
FINRA must notify involved customers of the time, date, and place of any prehearing conferences and the expungement hearing, advise them that they may attend and participate in those proceedings, and provide access to all relevant documents filed in the matter.
Panels are authorized to request any evidence the panel members consider relevant from the broker-dealer firm or associated person.
Panels must explain their rationale in sufficient detail when granting expungement relief.
Associated persons may not request expungement if a panel previously considered the merits of, or a court previously denied, an expungement request involving the same customer dispute information.
An associated person who withdraws an expungement request cannot subsequently re-file the request.

Changes to Straight-In-Request Hearings Under FINRA Rule 13805

To address the concerns above about straight-in-request hearings, FINRA made the following rule changes for such proceedings:

FINRA will not consider expungement requests filed:
- more than three years after the date the customer complaint was initially reported in the CRD; or
- more than two years after the customer-initiated arbitration or litigation involving the customer dispute information is fully adjudicated.
Straight-in requests must be filed against the broker-dealer firm at which the associated person was associated at the time of the events underlying the dispute.
An authorized representative of a state securities regulator may attend and participate as a non-party in the proceedings to the same extent that a customer could.
All straight-in requests must be decided by a three-person panel composed of randomly selected arbitrators pulled from a roster of experienced public arbitrators with enhanced expungement training and no significant ties to the industry. Parties cannot:
- agree to fewer than three arbitrators;
- strike any of the selected arbitrators;
- agree to an arbitrator’s removal; or
- agree to use arbitrators they pre-select.

Conclusion

The SEC’s 158-page notice approving FINRAs proposed rule changes contains several other modifications that impact an associated person’s ability to obtain an expungement, and FINRA has not yet announced an effective date for these changes. We will provide an update when they do. But given that the additional modifications generally make expungement more challenging, industry professionals contemplating an expungement request may wish to proceed sooner than later.

If you have questions about these updates, please contact Seth Rosenstein at Ansell, Grimm & Aaron.

Ansell.Law Welcomes New Attorney

Ansell Grimm July 5, 2023

Ansell.Law is pleased to announce that Nicole Benis has joined the firm’s Ocean office as an associate attorney. Her practice encompasses a range of complex commercial and civil litigation matters.

While earning her law degree from Seton Hall University School of Law, Benis served the Seton Hall Law community as a Student Mentor and a Student Bar Association member. She also served as a member of Seton Hall Law’s Center for Social Justice, Health Justice Clinic, representing clients in various matters.

About Ansell.Law

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, we are powered by experienced attorneys who understand that the best outcome is the one that serves the needs of each client.

Ansell.Law Attorneys Secured Numerous Successful Client Outcomes in Q2 2023

Ansell Grimm June 29, 2023

Ansell.Law attorneys are laser-focused on achieving our clients’ goals. We listen to our clients and craft compelling legal strategies to preserve their business interests. A sampling of our recent successes follows.

Commercial Real Estate

Jonathan Sherman, in collaboration with Melanie Scroble, successfully negotiated multiple commercial leases for cannabis retail in various cities, including Verona and East Orange, New Jersey. In a separate matter, Jonathan successfully completed a corporate restructure for his clients, enabling each LLC member to effectively execute a 1031 Exchange and achieve their desired financial goals.

Jonathan presented to over 100 realtors, providing valuable insights into using the 1031 Exchange process and Delaware Statutory Trust. Jonathan and Melanie Scroble partnered to deliver an informative Commercial Zoom series to more than 100 realtors, covering the acquisition, sale, and leasing of commercial real estate.

Jonathan also shared his expertise at a Coldwell Banker roundtable. Engaging with over 50 residential and commercial brokers, the discussion revolved around the intricacies of buying multi-family properties in New Jersey.

Litigation

Joshua Bauchner, Layne Feldman, and Anthony Sango obtained dismissal of a counterclaim on behalf of our client, a well-known real estate development firm, in the Superior Court of New Jersey, Mercer County. The counterclaim alleged breach of contract, fraud, and negligent misrepresentation. AGA successfully argued that subsequent amendments to the parties’ original agreement defeated the defendants’ counterclaims as a matter of law, securing a dismissal with a prejudice precluding amendment.

Gabriel Blum and Seth Rosenstein secured summary judgment in favor of a firm client in a complex design and construction defect case. The firm convinced the Court that our client only provided job site materials and did not engage in construction work, contrary to the allegations in the Complaint. As New Jersey trial courts often disfavor granting summary judgment, this was a significant win for our client and saved them ongoing defense costs.

Anthony D’Artiglio and Joshua Bauchner successfully represented the purchaser of a substantial portion of an ice cream company’s assets with numerous locations throughout New York and New Jersey. The ice cream company entered into an assignment for the benefit of creditors proceeding where our client won the bid to purchase its IP and equipment while assuming multiple lease locations. We guided the purchaser through the sale’s confirmation, including addressing multiple issues related to liens, transfer of the IP, and landlord disputes.

Joshua Bauchner, Anthony D’Artiglio, and Brian Ashnault are representing a large property management company in a condemnation case in which a New York state agency is acquiring two permanent easements from a Bronx warehouse owned by the client. AGA is guiding its client through the pre-litigation stages of the condemnation process and seeks to secure a multi-million-dollar fair market value award in New York Supreme Court.

Joshua Bauchner, Layne Feldman, and Brian Ashnault obtained dismissal of a counterclaim filed against our client, a retail brokerage firm, in the Superior Court of New Jersey, Bergen County. The counterclaim sought a declaratory judgment regarding a brokerage listing agreement, deeming it unenforceable. AGA successfully argued that the counterclaim did not state sufficient facts and that the legal arguments failed as a matter of law, securing a dismissal with a prejudice precluding amendment.

Other litigation victories include:

Secured possession of a luxury home in Westchester County after years of litigation and compelled a highly favorable settlement, resulting in a windfall for clients and strong profit after selling the property to a third-party purchaser.
Obtained a highly favorable settlement for a contractor client after the homeowner sued, alleging breach of contract and consumer fraud in connection with constructing a pool deck. The firm’s efforts minimized the out-of-pocket costs for the contractor, with its insurance carrier paying most of the limited settlement sum.
Successfully prosecuted action on behalf of an automobile repair shop against a vehicle owner who refused to pay for charges after his insurance carrier failed to extend coverage. The settlement reached was significant and avoided the costs related to protracted litigation.
Initiated litigation against a multinational financial consultancy firm under the Fair Credit Reporting Act following the dissemination of inaccurate information concerning a client. The action was settled pre-litigation on favorable terms to the client.
Filed action on behalf of local businesses after a nationwide energy supplier substantially overbilled for provided electricity. After limited discovery, the firm’s efforts resulted in a substantial monetary payment to the local businesses.
Represented a local property developer in securing declaratory relief pertaining to a shopping center and certain master deed restrictions, permitting the construction and operation of a well-known gas station and convenience store at the subject property.

Arbitration of Business Ownership Disputes: Is It Really a Better Alternative Than Litigation?

Ansell Grimm June 12, 2023

By Lawrence H. Shapiro

Just as you are unlikely to find a married couple who doesn’t argue from time to time, you’d be hard-pressed to find a business where the co-owners or partners never disagree on matters relating to their company’s direction. While all business owners share the same goal of charting a course for success, they often have different visions of how to get there. And when a consequential dispute between business owners devolves into an intractable and heated conflict, the fate of their interests in the business and the company’s continued viability hang in the balance. That is why it is so important for business owners at loggerheads to find the most effective, efficient way to resolve their stalemate.

In a previous post, we discussed a variety of dispute resolution mechanisms that business owners can include in their operating agreements and bylaws to help address and resolve deadlocks. One of those options is arbitration.

Many businesses include arbitration provisions in their organizing documents because they believe arbitration is preferable to litigation. Most business owners recognize that taking matters to court, while sometimes necessary to advance or protect a party’s or the business’ interests, is usually something to avoid. While both processes involve a neutral third party who decides the outcome of the dispute, arbitration is generally perceived as a more efficient, cheaper, and less destructive way to resolve a deadlock.

While arbitration offers many benefits in business ownership disputes, it is not without its faults or potential downsides. If you are considering including an arbitration provision in your governing documents or want to submit a pending dispute to an arbitrator, here are some things to consider.

What Is Arbitration?

Arbitration is an agreed-upon process in which a third-party neutral selected by the parties considers evidence and testimony submitted by the parties and makes a decision regarding the resolution of the dispute. In this sense, arbitration is similar to traditional litigation before a judge. But there are significant distinctions in both procedure and outcome. While court proceedings are governed by rules of procedure and evidence established by the law and the judge, parties to an arbitration have much more leeway when setting the ground rules for the proceedings.

And while a judge’s ruling is definitive and conclusive, an arbitrator’s decision can be binding or non-binding. If the parties agree to the former, the arbitrator’s decision is final and can usually be enforced by a court, if necessary. In non-binding arbitration, the parties can abide by the arbitrator’s decision if they so choose but are free to ignore it as well.

Why Arbitration Is Preferable to Litigation – And Why It Isn’t

As noted above, arbitration and litigation share many characteristics but also have important distinctions. So what makes arbitration a supposedly attractive alternative to fighting things out in litigation, and what potential risks hide behind these presumed benefits?

More Control Over the Process

Civil lawsuits are governed by strict rules of evidence and procedure, as well as the judge’s rulings, which the litigants must abide by whether or not they like them. In arbitration, the parties have much more power to set their own rules. For example, litigation could involve scores of depositions, expansive document requests, and other intrusive, costly, and lengthy discovery that drain bank accounts and draw out the process for months or years longer than either party would want. In arbitration, however, the parties can agree to limit the extent of discovery, such as setting a maximum number of depositions or placing a tight deadline on when discovery must be completed.

While this ability to govern the process can benefit both sides, it may ultimately put one party at a significant disadvantage. A party may be unable to obtain the evidence and information that could be crucial to their claim or defense due to agreed-upon discovery limits. And if the parties agree to binding arbitration, the losing side forfeits the ability to challenge or change the outcome as they could in an appeal of a trial judge’s ruling.

Speedier Resolution

Protracted discovery, ongoing motion practice, and overcrowded court dockets all contribute to why lawsuits may take years before they get to trial or a judge’s dispositive ruling. None of these impediments to a speedy resolution are present in arbitration. The parties can agree that a final hearing must be held by a set deadline, such as 60 or 90 days from the date of the first meeting with the arbitrator. A limit can also be set for the length of the hearing itself.

Lower Costs

The parties’ ability to exert greater control over and place limits on the arbitration process can result in far lower costs than litigation. By restricting discovery and other aspects of the process, the parties can keep legal fees and expenses from spiraling out of control, as often happens in the endless trench warfare that litigation can devolve into. Of course, if the parties give each other as wide a berth in the agreed-upon ground rules of their arbitration as they would have in a lawsuit, any potential savings can go out the window.

For a party with greater resources or bargaining power, arbitration may cause them to inadvertently squander that advantage by leveling the playing field. With expenses limited in arbitration because of a more streamlined and restrictive process, the party with fewer resources can better afford to stay in the fight.

Keeping the Dispute Out of the Public Eye

Feuding owners are a bad look for any business, especially in the eyes of investors, other shareholders, customers, and suppliers. Since court proceedings are almost always a matter of public record, all of those critical constituencies – as well as the media – will be privy to the dispute’s ugly details. Owners can prevent their dirty laundry from being aired publicly by agreeing to keep the process and outcome of the arbitration confidential.

Sometimes, however, the threat of negative publicity for an owner or the business can give the other side leverage they would lose if they agree to confidential arbitration. This is another way arbitration can be more appealing in theory than practice.

If you have questions about arbitration or how to address disputes between business owners, please contact one of the litigation attorneys at Ansell, Grimm & Aaron.

Ansell Grimm & Aaron Grows Litigation Department With Two New Attorneys

Ansell Grimm June 1, 2023

Ansell Grimm & Aaron, PC is pleased to announce that Gabriel Blum and Anthony Sango have joined the firm as associate attorneys. Blum and Sango join the firm’s Woodland Park office.

“We’re thrilled to have Gabriel and Anthony on board,” said Managing Partner Michael V. Benedetto. “Adding two skilled litigators allows us to meet our clients’ steadily increasing legal needs. Their presence also supports our strategic growth plan, notably enhancing our capabilities.”

Blum’s practice encompasses a range of complex civil litigation matters. Licensed in New Jersey and New York, he is an experienced litigator joining from a national litigation firm. Blum earned his law degree at Benjamin N. Cardozo School of Law, where he was an articles editor for the Cardozo Journal of Law & Gender. He graduated from Yeshiva University with a Bachelor of Arts.

Sango handles a range of business and civil litigation matters. Before joining Ansell Grimm & Aaron, he was an attorney at an AmLaw 200 firm dedicated to civil defense litigation. Sango graduated from Seton Hall University School of Law and earned his undergraduate degree at SUNY Stony Brook.

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 critical legal matters that are often urgent and stressful. A general practice law firm, Ansell Grimm & Aaron is powered by experienced attorneys who understand that the best outcome is one that serves the client’s needs.

Rock-Scissors-Paper Won’t Cut It: Effective Mechanisms for Resolving Deadlocks Between Business Owners

Ansell Grimm May 31, 2023

By Lawrence H. Shapiro

In sports, no one likes games to end in a tie. They are anti-climactic and disappointing. But in business, ties can have much more significant consequences. When equal shareholders in a closely held corporation, partners in a partnership, or members of a limited liability company find themselves tied – deadlocked – when making significant business decisions, it can put both the ongoing viability of the enterprise and the relationships behind the business in existential peril. And in any company where voting power or equity interests are equally divided, deadlock is always possible, if not a probability.

Management and ownership deadlocks can quickly devolve from disagreements among friends to irreconcilable differences between two soon-to-be-former business partners. Often, such disputes wind up in a courtroom where the fate of the owners and the business they bult together is left in the hands of a judge. Sometimes, litigation is necessary to protect the rights of an owner or preserve the business and its assets. In such circumstances, it is imperative that each owner retain their own experienced business litigation attorney to advise them and work to obtain a favorable outcome that, ideally, protects the business and the owner’s interests.

But litigation between deadlocked business owners can also be costly, disruptive, and lead to results that neither side wants, such as judicial dissolution and liquidation of the business. Given the foreseeability of deadlock – and the probable negative consequences of an extended stalemate among owners – it is critical that business owners have an effective mechanism in place to resolve these disputes when they arise.

For this reason, deadlock provisions should be included in a business’s foundational documents, such as an operating agreement, partnership agreement, or corporate bylaws. Even if the original versions of such documents do not contain deadlock provisions, amendments can be crafted to address a logjam should it arise. Resolving deadlocks that threaten the future of a business should not be left up to dumb luck. In fact, coming to an agreement on how to resolve a disagreement is easier while the business owners are getting along than having a court decide after the relationship falls apart.

If you have questions about ownership deadlocks or would like assistance establishing a deadlock resolution for your business, please contact one of the business law attorneys at Ansell, Grimm & Aaron.

LITIGATION DEPARTMENT REVIEW – 2022

Ansell Grimm December 21, 2022

The Ansell Grimm & Aaron (AGA) Litigation Department handled a wide variety of complex commercial disputes throughout 2022. Below we highlight several of the team’s successes.

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.

Summary Judgment Benefitting Child’s Trust

The firm was retained by a single mother seeking to enforce a decade-old settlement agreement against her child’s wealthy father, who failed to pay substantial sums into trust for their daughter. Following lengthy litigation, including extensive motion practice and discovery, Senior Associate Seth M. Rosenstein secured summary judgment in favor of the child, ensuring that nearly $1 million in improperly withheld funds are paid into a trust to be established for her benefit. The court also awarded all costs and fees associated with establishing the trust for the child. This notable outcome ensures that the subject child is well provided for and finally has access to funds that should have been made available for her benefit many years prior.

Summary Judgement Secured in Convoluted Fraudulent Mortgage Matter

Spearheaded by Litigation Department co-chair Lawrence H. Shapiro and Attorney Layne A. Feldman, AGA was successful in obtaining summary judgment on behalf of its client in a convoluted litigation involving claims of fraudulent mortgages and satisfaction of mortgages. Stepping into the shoes of a prior counsel at the request of Plaintiffs and using the fact that the parties to the suit had attempted to litigate similar issues in prior lawsuits, AGA was able to demonstrate to the Court in 279 Veterans, LLC, et al. v. Village Green Associates, LLC, Docket No. MID-C-107-20, that preclusive doctrines applied and prevail on Plaintiffs’ declaratory judgment claim. The result of the Court’s ruling is that the Satisfaction of Mortgage filed by the Defendants will be removed from the chain of title of the property in question and is of no force and effect, preserving Plaintiffs’ Mortgage.

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.

FINRA Advisor Defense

Ansell Grimm & Aaron was retained by a long-established FINRA-licensed broker dealer and its principal, in connection with litigation filed against them in the Superior Court of New Jersey, alleging causes of action relating to investment banking services provided to a technology startup. After several years of litigation, this matter was referred by counsel to Seth M. Rosenstein and Joshua Bauchner of the firm’s litigation department, in light of Mr. Rosenstein’s extensive FINRA experience and both counsel’s success in litigating matters before the Superior Court. Rosenstein and Bauchner successfully filed a motion to stay the Superior Court action and compel FINRA arbitration — seeking to invoke an investment banking agreement (IBA) containing a FINRA arbitration clause, under which the plaintiff previously sought third-party beneficiary status. The court held that plaintiff was estopped from disavowing his claimed third-party beneficiary status under the IBA to avoid arbitration, and that the parties’ dispute must be heard before a FINRA arbitration panel, among other things. The court’s decision is a remarkable result for parties seeking to enforce arbitration agreements, and for ensuring that the learned professionals sitting on FINRA arbitration panels adjudicate industry disputes.

Relief Won Against Subcontractor’s Claims for Payment

Attorney Kelsey Barber, and Shareholder Lawrence H. Shapiro, successfully had a subcontractor’s claims against a client-property owner dismissed in a complex construction litigation. Plaintiff-subcontractor sought to recover monies for work performed at AGA’s client’s property when the property owner terminated the project’s general contractor. AGA was able to demonstrate to the Court that the property owner cannot be liable to a subcontractor for a general contractor’s default and that the Plaintiff’s claims for quasi-contractual relief were unfounded under New Jersey law. The Court granted Summary judgment as to all counts in AGA’s client’s favor.

Success for Youth Community Center

Partner Anthony J. D’Artiglio and Shareholder Lawrence H. Shapiro defeated a motion for summary judgment seeking to declare that our client’s, a youth community center and academic tutoring facility, use of their property rendered an easement agreement with a neighboring property owner extinguished. The neighboring property owner filed an action seeking to declare the easement expired and challenged the Zoning Board’s approval of a use variance and bulk variance relief. We successfully convinced the Court that the motion for summary judgment was premature and relied on a flawed reading of the easement agreement, leading to the complete denial of the motion. The neighboring property owner thereafter agreed to voluntarily withdraw its claims against our client, permitting the youth community center to continue to operate.

Synagogue May Proceed with Development

Partner Anthony J. D’Artiglio and Shareholder Lawrence H. Shapiro defeated an application to stay development activities pending prosecution of a prerogative writ permitting our client to continue development activities at the property. Plaintiffs asserted claims against our client, a synagogue, claiming that the planned development activities violated a settlement agreement and that the Zoning Board improperly approved the planned developed. Plaintiffs first filed an Order to Show Cause seeking to stay the Zoning Board from acting on our client’s application and to have their claims adjudicated in a summary manner. We opposed the Order to Show Cause, culminating in the Plaintiffs withdrawing the Order. Thereafter, Plaintiffs sought to stay our client from performing any activity at the property pending disposition of Plaintiffs challenge to the Zoning Board approval. We successfully convinced the Court that no stay was warranted leading to a total denial of the stay application, permitting our client to proceed in accordance with the approvals.

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 Welcomes Scott Jacobsen

Ansell Grimm October 28, 2022

We are pleased to welcome Scott R. Jacobsen, Esq. as an associate at Ansell Grimm & Aaron PC. Scott comes to Ansell Grimm from an established New York firm where he focused on securities class action litigation and other complex litigation, including the investigation of corporate books and records to evaluate potential claims on behalf of shareholders.
Previously, Mr. Jacobsen interned with the Office of the Inspector General for the U.S. Department of Health and Human Services and with the American Civil Liberties Union of Virginia before graduating from William & Mary Law School.

September 2022 Newsletter

Ansell Grimm September 26, 2022

Klein Helping Clients with Property Sales and Acquisitions Across the State

Jason S. Klein, Esq. (a) assisted a client in the acquisition of a 200-plus unit multifamily complex located in Morris County, through a membership interest purchase, which also included assistance with financing from a large regional bank and multiple 1031 exchanges; (b) assisted a client in the disposition of retail center on the boardwalk in Cape May county; (c) assisted a client in the sale and simultaneous disposition of a property in located on Route 22 in Somerset County; and (d) represented a client in the simultaneous acquisition of two retail properties in Monmouth County, from two (2) separate owners and assisted with negotiating and closing the acquisition financing in connection therewith with a large New Jersey-based bank.

Come See Us at the CAI Expo on October 20

The Community Association Practice Group will be exhibiting at the New Jersey Community Associations 2022 Annual Conference & Expo on October 20.
The 2022 CAI Conference & Expo will be held from 8:30 a.m. to 3 p.m. at The Event Center @ iPlay America located at 110 Schanck Road, Freehold, NJ.
CAI’s Annual Conference & Expo provides learning and networking opportunities for homeowners, managers, and business partners. Registration is free for all homeowners and community association managers and includes complimentary breakfast and lunch, educational programs, and multiple chances to win $1,000 during the show (must be present to win).
When you are at the expo, please visit us at Booth #823. You can also contact David J. Byrne, Esq. if you wish to set up a meeting with one of our attorneys while you are at the conference.

Brodsky Wins Approval for Projects Across Monmouth County

Zoning and Land Use Department co-chair Rick Brodsky, Esq. had a very productive summer winning approval for several projects before municipal boards throughout the county.

In June, the Shrewsbury Land Use Board voted unanimously to grant Use Variance and site plan approval, permitting the Applicant, Restore Hyper Wellness, to operate a health and wellness facility for customers seeking general wellness and anti-aging services and athletic recovery, including natural reduction of inflammation at 1079 Broad St. In July The Marlboro Township Zoning Board voted unanimously to grant variance and site plan approval permitting the Waitt Funeral Home to undertake significant renovations, upgrades and additions to its existing, long-standing building on Route 79.

Also in July, the Ocean Township Zoning Board, unanimously approved the application of Gold Coast Cadillac, granting site plan approval, with variances, permitting the renovation/expansion of the existing Cadillac car dealership on Route 35.

In August, the Long Branch Planning Board adopted the Resolution of Approval for its July unanimous decision to permit a four-lot Major subdivision application from Chelsea LLC.

Moin, Oliver, and Sherman Join Ansell Grimm & Aaron

Three new attorneys, Irina Moin, Esq., Jonathan Sherman, Esq., and Leigh Oliver, Esq., have joined the firm. Ms. Moin is licensed to practice in NY and NJ and will be joining both the Corporate Finance and Banking Department and Cannabis Law Department.

Ms. Oliver is a new associate in the Family Law practice and Mr. Sherman is working in the Commercial Real Estate Department.

Bauchner Receives New Jersey Law Journal Innovator of the Year Award, Appointed to NJSBA Foundation Committees

Joshua S. Bauchner, Esq. has been named one of the New Jersey Law Journal’s “Innovators of the Year” for 2022. Bauchner is one of just four attorneys in the state selected for the honor.

Bauchner also has been appointed by the New Jersey State Bar Foundation to the Publication Oversight Committee and the Editorial Advisory Board of the Respect Newsletter for 2022-23 by Foundation President Kathleen N. Fennelly, Esq.

The New Jersey State Bar Foundation is committed to the principle that public understanding of our legal system is essential to preserving the liberties that are fundamental to our democracy.

Shapiro and Barber Win Relief Against Prospective Buyer’s False Claim

Through, targeted discovery, Lawrence Shapiro, Esq. and Kelsey Barber, Esq. succeeded in having a contract buyer dismiss its complaint to enforce a contract of sale and discharge a Lis Pendens recorded against AGA’s client’s commercial property. Plaintiff Lebanon 123, LLC sought to compel Kullman Associates, LLC to sell real property known as the Kullman Corporate Campus in Lebanon, New Jersey for $13,500,000.

Kullman terminated the contract and refused to transfer title claiming that Plaintiff failed to meet its contractual obligations, including fully funding the deposit. Despite representations from the title company escrow agent that the deposit was received, AGA’s strategic discovery uncovered evidence that the deposit was never fully funded and, in fact, what had been funded was returned to Plaintiff, even before the suit was filed. AGA then moved for summary judgment and put Plaintiff on notice of their claims being frivolous which resulted in Plaintiff voluntarily dismissing its complaint and freeing the property for Kullman’s use and remarketing.

Bauchner to Moderate NJSBA Cannabis Law seminar

Joshua Bauchner, Esq. and Lisa Gora, Esq. of Epstein Becker & Green, PC will moderate a discussion on the latest developments in cannabis law at the New Jersey Law Center in New Brunswick, on October 26.

The topics covered in the seminar include:

Psychedelics — The New Cannabis
Cannabis in NJ Towns: Municipal and Local Applicant Perspectives
Diversity, Equity, and Inclusion

There will also be a Q & A session The event runs from 2-5 p.m. and a companion webcast will be available online. Attendees can receive Continuing Legal Education credit for NJ, PA, and NY. Information on the credits provided is available on the event registration page.

A happy hour will follow at the Law Center, after which the NJSBA Cannabis Law Committee, which Bauchner and Gora co-chair, will convene.

Court Case Corrects Planning Board Denial

Litigation Department co-chair Lawrence Shapiro, Esq. succeeded in overturning the Planning Board of the Borough of Rumson’s denial of an application to subdivide property into two developable lots.

In overcoming the Board’s decision on behalf of the applicant, Michael McCarty, Shapiro demonstrated that the Board had erred in siding with objecting neighbors in refusing to grant minimal variances of lot circle, front yard setback, and lot width/frontage.

Notably, the Court reversed the Board’s decision resulting in the approval of the subdivision, with variances, on behalf of the applicant. In doing so, the Court found the Board’s reasoning to be a “sham” for its desire to maintain larger lot sizes in the zone.

Rosenstein Wins Long Court Battle to Protect Client

Ansell Grimm & Aaron, PC was retained by a trucking and rigging company after one of its employees sustained substantial injuries on a jobsite. Despite the project being covered by an Owner Controlled Insurance Program (OCIP), the contractor that retained our client failed to notify our client of the OCIP and did not enroll our client in the program. Making matters worse, our client’s insurance brokers failed to identify and advise the client about an exclusion in its commercial general liability policy that contained an “Absolute Employee and Worker Injury and Liability Exclusion endorsement,” leaving our client vulnerable to the claims asserted in the action. While our client was shielded against direct liability from the plaintiffs, the employee filed an action against the other entities involved in the project — some of whom subsequently filed a third-party action against our client.

Seth Rosenstein, Esq. of AGA’s litigation practice group handled this matter, aggressively defending the action and adding the client’s insurance brokers as fourth-party defendants on the basis that but for their negligence, the client would not have been left without insurance coverage for third-party action claims. After over four years of litigation, our efforts resulted in an ideal settlement whereby our client did not contribute any funds to the settlement and received a global release from all parties involved.