We are pleased to announce that Andrew Ryan Kravis has joined us as a new associate. Andrew served as a Judicial Law Clerk to the Honorable Ned M. Rosenberg, J.S.C. during the 2011-2012 court term. He also previously worked as a summer litigation associate at Bernard and Bernard, Attorneys at Law, in Los Angeles, California. Mr. Kravis concentrates his practice in the areas of Landlord/Tenant Law and a wide variety of civil litigation matters.
Newark Business, Commercial and Family Law Blog
In a case interpreting the New Jersey Construction Lien Law, a material supplier filed a construction lien when its customer/subcontractor became insolvent. The supplier had provided materials to the insolvent subcontractor for the project on which the lien had been filed and on open account for other unidentified projects. The Court found the supplier had an affirmative obligation to ascertain the identity of the project where the supplies had been provided. Failure to make this inquiry would preclude any action to enforce the construction lien. If you would like any further information, please contact John Petriello, Esq. at firstname.lastname@example.org or 973-854-6700.
A New Jersey Court recently granted a motion filed by Anne P. Ward, Esq. on behalf of a condominium association and entered an Order appointing a Rent Receiver for a condominium unit left vacant by its owner. The owner had moved out of state and refused to pay maintenance fees or take any responsibility for the property. The unit was "underwater" inasmuch as its mortgage was greater than its market value. Since the owner was unable to sell the property, he apparently chose to simply abandon it and avoid his mortgage obligations.
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The following information may be helpful to obtain assistance from the State of New Jersey and the Federal Government:
New Jersey State of Emergency Management: www.state.nj.us/njoem
Federal Emergency Management Agency (FEMA): m.fema.gov, or by telephone 800-621-3362
If we can be of any assistance, please contact John Petriello at email@example.com or 973-854-6700
In the recent case of D.W. v. R.W., the New Jersey Supreme Court ruled that presumptive fathers who have a reasonable basis to question the paternity of a child can compel genetic testing even if it is contrary to the best interests of the child. The Court's decision reverses 20 years of case law in which the best interest of the child was always held to be the determining factor given the emotional trauma such testing could inflict upon the child. Previously, courts generally only ordered genetic testing upon the showing of clear and convincing evidence that it was in the best interests of the child.
Although the Court acknowledged that the best interests standard controls most decisions involving children in divorce and custody litigation, it deemed that standard inappropriate in the context of paternity challenges because "in many, if not most, cases where genetic testing is ordered to refute a presumption of paternity, some destabilization of the child's life is inevitable." The Court further pointed to several amendments to the New Jersey Parentage Act, N.J.S.A. 9:17-48(d), which governs when genetic testing can be ordered for purposes of proving paternity, that restrict a court's ability to deny it. Significantly, the Act does not mention the best interests standard. Rather, the Act currently states that genetic testing can only be denied for "good cause" without defining what constitutes it.
In an effort to clarify the standard, the Court identified several factors, including the interests of the child, that will determine whether a father's request for genetic testing can be denied. Those factors include: how long the person seeking the test has believed himself to be the father; how the possibility of non-paternity was discovered; the relationship between the child and the presumptive father as well as with the alleged father; the age of the child; and the child's interest in knowing his or her genetic background.
In D.W. v. R.W., the father (R.W.) learned that he might not be the father of the 19 year old he believed was his son when his wife confessed to having had an affair around the time the boy was conceived. The father sought paternity testing the following year in the divorce litigation that followed the disclosure. In the divorce action, the father filed a counterclaim for adultery and emotional distress. He also filed a third-party claim for support against the other man. Weighing all the factors, the Court reversed the prior denial of testing by the trial court and Appellate Division and compelled the son, currently 25, to undergo genetic testing to determine paternity. "This case is not about the wisdom of a father proceeding with a parentage action in the circumstances presented here, but about his legal right to do so under the statute," said Justice Barry Albin writing for the majority.
Contributed by Jeffrey W. Plaza, who is a partner of the firm practicing in the area of divorce and family law.
Plaintiff was a subcontractor on a public contract, and sought payment of $58,774 for extra work. The trial court denied Plaintiff's claim because Plaintiff had failed to obtain prior written approval, as required by the contract. On appeal, the Plaintiff attempted to rely on promises made by an engineer retained by the public authority. The appellate court rejected this claim, confirming the express language of the contract had to be followed.
The lesson to be learned is obvious. Always know and follow the language of the construction contract if asked to do additional work.
On March 7, 2012, the Internal Revenue Service announced the expansion of its "Fresh Start" initiative to help struggling taxpayers by providing penalty relief to the unemployed and making installment payment agreements available to more people.
Under the new provisions, taxpayers who have been unemployed for at least 30 days will be able to avoid failure-to-pay penalties. In addition, installment agreements will be available to more people.
Generally, the new provisions will apply to taxpayers who earn less than $200,000 (joint filer) or $100,000 (single filer). This penalty relief will apply to taxpayers whose tax balance due does not exceed $50,000.
If you have any questions, contact Alan Ehrlich, Esq. at 973-854-6708 or Alan@epgp-law.com
Arbitration decisions are rarely overturned. However, in a recent decision the court found it necessary to do so. Plaintiff entered into a contract with defendant to purchase a luxury condo unit, and provided deposit monies to defendant's attorney. When plaintiff failed to appear at the closing, defendant refused to return her deposit. The parties proceeded to binding arbitration, as required by their contract, and the arbitrator concluded that plaintiff was entitled to the return of her deposit. On appeal, the judge found that the arbitrator exceeded the scope of his powers by disregarding the clear terms of the parties' contract, essentially rewriting for plaintiff a better contract that the for which she had bargained. Noting that a court will vacate an arbitration award only under limited circumstances, the appellate panel affirmed the lower court's decision, finding that the arbitrator exceeded the scope of his authority by adding terms to the parties' contract.
In February 2012, the President released his federal budget proposals for fiscal year 2013. The revenue proposals include over 130 proposed tax changes for businesses and individuals, including estate and gift tax changes.
The budget's proposals relating to estate and gift tax include the following.
Restoration of transfer tax to 2009 levels. The estate and gift tax parameters as they applied during 2009 would be made permanent. The top tax rate would be 45% and the exclusion amount would be $3.5 million for estate taxes, and $1 million for gift taxes. These changes would apply after December 31, 2012.
Portable estate tax exclusion made permanent. The provision allowing a surviving spouse to use the deceased spouse's unused estate tax exclusion, which expires after December 31, 2012, would be made permanent.
Contact Alan Ehrlich at 973-854-6708 to discuss how these changes would affect your individual estate tax planning.
WHAT ARE "HOUSING RELATED DISPUTES" THAT REQUIRE ALTERNATIVE DISPUTE RESOLUTION UNDER THE NEW JERSEY CONDOMINIUM LAW ?
The New Jersey Condominium Act, N.J.S.A. 46:8B-14(k) provides,
K. An association shall provide a fair and efficient procedure for the resolution of housing-related disputes between individual unit owners and the association, and between unit owners which shall be readily available as an alternative to litigation. A person other than an officer of the association, a member of the governing board or a unit owner involved in the dispute shall be made available to resolve the dispute. A unit owner may notify the commissioner of community affairs if an association does not comply with this subsection. The commissioner shall have the power to order the association to provide a fair and efficient procedure for the resolution of disputes.
The Condominium Act does not define what are "housing-related disputes" that require some type of mediation between parties.
The Appellate Division recently grappled with that issue and reached a decision of great consequence to a condominium's obligation to provide Alternative Dispute Resolution ("ADR") to unit owners prior to litigation. In Bell Tower Condominium Association vs. Haffert, 2012 W.L. 86813 (N.J. Super A.D.), unit owners appealed from the award of a summary judgment to the condominium association which entered judgment against the owners for the sum of $22,400. The judgment was the result of the owners' refusal to pay their portion of a special assessment for various improvements to the condominium's property. The owners refused to pay because they objected to the association's decision making process concerning the special assessment and its allocation of funds. The unit owners repeatedly notified the association in writing of "their disagreement with the manner in which the decision had been made and their concerns about how the money would be allocated" Id. at 2.
The Appellate Division was called upon to determine whether or not the dispute between the parties fell within the language of N.J.S.A. 46:8B-14(k) which requires the condominium association to establish a "fair and effective procedure for the resolution of housing-related disputes".
The Appellate Division in Bell Tower ultimately held it was a housing-related dispute that should have been submitted to a form of ADR because the unit owners had raised substantive issues which went to the very core of the association's management of the condominium's common elements. The Appellate Division held,
The present dispute is a housing-related dispute within the meaning of the applicable statute. Underlying defendants' refusal to pay the special assessment is their contention that the board breached the fiduciary obligations imposed upon it by N.J.S.A. 46:8B-14(j). N.J.S.A. 46:8B-14(j) requires a condominium association to 'exercise its powers and discharge its functions in a manner that protects and furthers or is not inconsistent with the health, safety and general welfare of the residents of the community'. The present dispute is clearly 'housing related', as it is premised upon one of the sections of the Act. Id. at 6.
While the Appellate Division in Bell Tower recognized a "strong public policy in favor of arbitration" it did recognize that only "qualifying disputes" are subject to the requirement of arbitration.
Condominiums need to be mindful of their obligation to offer ADR concerning qualifying disputes prior to filing litigation against a unit owner. Otherwise, they risk having their complaints dismissed by a Court and referred to mediation.
If you would like further details, please post your comments, or contact Anne P. Ward at firstname.lastname@example.org or call (973) 854-6717.