.

Jay S. Rothman

General Counsel

Chair, Commercial Litigation Practice Group

Portrait of Jay S. Rothman

Jay Rothman serves as the general counsel for Marshall Dennehey. He brings a unique understanding of business issues to his duties as general counsel as well as to his law practice, where he concentrates largely on commercial litigation matters in the defense of virtually all non-medical professionals. Jay's clients include accountants, appraisers, abstractors, consultants, mortgage brokers, real estate professionals and lawyers. Jay also defends director and officer claims, FDCPA/FCRA claims, class actions, defamation/disparagement and RICO actions. 

Jay is a frequent lecturer in the fields of professional liability and risk management. As well, he is actively involved in designing and implementing internal risk management protocols for client implementation. 

Since 1987 Jay has practiced at Marshall Dennehey, when he began his legal career.  He was elected as a shareholder in 1994, served as the vice chair of the firm's Transactional Litigation Practice Group within the Professional Liability Department, and in 2009 was appointed as general counsel.

In 1984 Jay graduated from the University of Michigan where he received his bachelor of arts degree. He is a 1987 graduate of Washington College of Law at American University where he earned his juris doctor degree. While in law school, Jay served as a legal intern at the Securities and Exchange Commission's Enforcement Division. 

    • American University Washington College of Law (J.D., 1987)
    • University of Michigan (B.A., 1984)
    • Pennsylvania, 1987
    • U.S. Court of Appeals 3rd Circuit, 1987
    • U.S. District Court Eastern District of Pennsylvania, 1987
    • AV® Preeminent™ by Martindale-Hubbell®
    • Pennsylvania Super Lawyer (2011-2012)
    • Philadelphia Bar Association
    • Professional Liability Underwriters Society (PLUS)
    • Understanding the Subprime Credit and Housing Crisis, Insurance Society of Philadelphia, June 2008 
    • Analyzing the Corporate Structure and Its Implications with Respect to Liability and Damages, Insurance Society of Philadelphia, June 2008 
    • Risk Management Techniques and Ethical Obligations In Litigating Eminent Domain Proceedings, National Conference of Eminent Domain, November 21, 2002 
    • Malpractice Avoidance for Lawyers, Pennsylvania Bar Association, April 16, 2002 
    • The Legal Malpractice Explosion - Risk Management Techniques, Delaware County Bar Association Sponsored by The Young Lawyers Division, May 11, 2001 
    • Risk Management Techniques for Realtors, National Association of Realtors Annual Conference, Spring, 2000 
    • Discharging Your Ethical Obligations to Communicate with Your Client, Pennsylvania Continuing Legal Education, January 26, 1999 
    • Risk Management Techniques for Accountants, PICPA Annual Accounting and Auditing Conference, December, 1998 
    • Private Securities Litigation Reform Act - New Developments
    • In-House Seminars for Various Insurance Companies - Risk Associated with Claims in the Real Estate Profession
    • In-House Seminars for Various Accounting Firms - Risk Management Techniques
    • In-House Seminars for Various Insurance Companies - Developing Case Law in the Legal Malpractice Arena
    • "Liability Survival Is in the Limits," Pennsylvania CPA Journal, Volume 77, No. 4, Winter 2006 
    • "Client Referrals Are Not Without Risk," Pennsylvania CPA Journal, Volume 77, No. 1, Spring 2006 
    • "Subpoenaed? Call Your Attorney," Pennsylvania CPA Journal, Volume 76, No. 3, Fall 2005 
    • "Consider Protective Clauses," Pennsylvania CPA Journal, Volume 76, No. 1, Spring 2005 
    • "Engagement Creep," Pennsylvania CPA Journal, Volume 75, No. 3, Fall 2004 
    • "Envisioning Real Estate Practice without Boundaries," Real Estate: A Supplement to the Legal Intelligencer and Pennsylvania Law Weekly, July 2004 
    • "Tort v. Contract Claims in the Defense of Professionals - What's In a Name The Pennsylvania Superior Court Affirms Application of the Contributory Negligence Doctrine," Defense Digest, Vol. 10, No. 1, March 2004 
    • "The Pariah Cometh - Take a Look at Your Accountant," PLUS Journal, April 2002 
    • "Pantuso Motors v. CoreStates Bank: Lenders Beware," Defense Digest, Vol. 8, No. 4, December 2002 
    • "Law Safeguards Parties against Bad Inspections," Lawyers Journal and the Philadelphia Legal Intelligencer, Real Estate Quarterly, March 9, 2001 
    • "Reliance on Home Inspection May Eliminate Liability of Seller," Defense Digest, Vol. 7, No. 2, April 2001 
    • "Professionals Beware: Further Relaxation of the Privity Requirement Under Pennsylvania Law," Defense Digest, Vol. 6, No. 4, July 2000 
    • "The Y2K Act: Defining the Coverage Battleground," Defense Digest, Vol. 5, No. 5, 1999
    • "Litigation without Damages: A New Twist to the Damage Element of Tort Actions," Defense Digest, Vol. 2, No. 5, 1996
    • "Third Party Subpoena of Accountants - Your Right to Your Work Papers," The Asset Column, Practical Protection Tips for Accountants, Vol. 6, No. 3 

Thought Leadership

Defense Digest

On the Pulse…Our Real Estate E&O Liability Practice Group

December 1, 2022

Our Real Estate E&O Liability Practice Group has a long history of representing real estate professionals. We have defended real estate brokers and agents, title agents and abstractors, appraisers, surveyors, home inspectors, mortgage companies, property management companies and condominium associations, on all types of claims brought in state and federal court and regulatory forums throughout all jurisdictions in Pennsylvania, New Jersey, New York, Florida, Delaware, Ohio and Connecticut. These claims manifest themselves in a variety of ways, with most arising from commercial and residential real estate transactions. They involve disputes surrounding disclosures, financing, valuation, liens, zoning, property management, conditions, construction, and a variety of other items that arise from the property acquisition and transfer process. The claims range from contract to tort, to those raising statutory violations. Many present equitable issues involving easements, deed restrictions and title. Apart from these standard E&O claims, the Group also represents and defends condominium associations and boards in disputes arising with and between unit owners and third parties. These claims may involve property damage, construction, water, fire and mold disputes. They can also include a variety of other issues, including those specific to particular jurisdictions, like mold, sinkholes and storm-related claims. We also handle disputes surrounding the legal interpretation and application of association governance documents, such as declarations and by-laws in declaratory judgment actions. In the regulatory forum, our lawyers regularly defend real estate professionals against customer complaints resulting from the delivery of services. They often implicate violations of state and administrative law concerning the delivery of professional services. We defend real estate agents, appraisers, title agents and a variety of other professionals from these complaints, starting with the customer complaint or initial inquiry received through the administrative hearing process. Our practice group is composed of seasoned, creative and highly regarded lawyers who have litigated many complex disputes. They include shareholders: Jay Rothman, Jeffrey Chomko and Dana Gittleman in Philadelphia; Christopher Conrad in our Harrisburg office; Jonathan Kanov in Fort Lauderdale, Florida; Christopher Block in our Roseland, New Jersey, office; and Aaron Moore in our Wilmington, Delaware, office. We also have a team of associates and paralegals who work with them in preparing and defending all aspects of these cases. We pride ourselves on our strong reputation, earned over the last 60 years through the successful defense of the most complex and difficult matters. Our philosophy is simple: to quickly evaluate and strive to efficiently resolve these matters at an early stage, if possible, in order to avoid costly, unpredictable litigation. Nevertheless, if necessary, we are prepared to take to trial those cases that cannot be resolved. We also present seminars and training sessions to clients and insureds that address legal issues that arise in the particular jurisdictions we service. We discuss best practices for real estate agents, home inspectors and other professionals. We welcome you to look at the bios of our attorneys in the group and reach out to us with any questions.   Defense Digest, Vol. 28, No. 12, December 2022, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.