Results

The lawsuit was brought by 54 condominium unit owners of a 608-unit, age-restricted planned development against the homeowner’s association board, the property manager and the sponsor/developer, for the early transfer of control of the condominium association. Dismissal of the board and the property manager was granted in what was properly a unit owner-sponsor/developer dispute over control of the association. The unit owners alleged that the sponsor/developer was no longer offering new units for sale; rather, they were only renting units, thereby triggering the turn-over provisions in the by-laws. No claims against either the board or the property manager were properly pled in the complaint. Accordingly, the complaint was dismissed as to both.

We obtained an order of dismissal through pretrial motions in a complex legal malpractice action heard before the United States District Court. It arose out of an underlying first-party coverage action that involved hundreds of thousands of dollars in connection with building damage caused by Hurricane Sandy. The plaintiffs filed a complaint against our clients, certain individuals and a law firm, alleging claims for legal malpractice.  Our motion for summary judgment filed on behalf of the defendants asserted that an order for dismissal should be entered because: (1) the plaintiffs’ expert failed to offer an opinion on causation and damages; (2) the individual claims of the plaintiffs should be dismissed since the plaintiffs did not establish an individual claim; and (3) the plaintiffs failed to come forward with proofs to satisfy the punitive damages standard in New Jersey. The court granted our motion for summary judgment.   

Our defense team successfully obtained an affirmance of the grant of summary judgment in a premises liability case. The plaintiff asserted he tripped and fell in our client’s supermarket and that the fall exacerbated his epilepsy. The discovery period ended without the plaintiff producing an expert opinion that causally connected the medical complaints to the fall. The plaintiff claimed that his treatment for cancer caused his inability to be timely examined and to obtain an expert opinion. After the trial court denied the plaintiff’s motion to extend discovery, we moved for summary judgment on the grounds the plaintiff was required to provide an expert opinion linking his fall to his allegedly worsened epilepsy. The plaintiff filed a cross-motion for additional time. At the hearing on the motions, the judge expressed a willingness to consider further extension if the plaintiff had presented some indication that the report would be produced. But in the absence of such an indication, the judge found that fairness to the defense required that summary judgment be granted. On reconsideration, the plaintiff presented a “preliminary summary” from his doctor, which relied on the plaintiff’s wife’s statements to link the epilepsy to the plaintiff’s fall. The trial court denied reconsideration. On appeal to the Appellate Division, the court found no error in the decision of the Law Division judge. The court found that the plaintiff failed to show exceptional circumstances to justify a further extension of discovery and discounted the “preliminary summary” submitted on reconsideration as an improper attempt to expand the record and re-argue the motion.

The declaratory judgment complaint was filed against the landlord that leased three quarries to the insured tenant. The landlord sued its tenant for breach of contract and environmental clean-up costs. The landlord sought coverage as an additional insured to the tenant’s CGL policy. The insurer denied coverage. The court granted our motion for summary judgment in favor of the insurer, agreeing that the counterclaims alleged intentional acts that were not occurrences as defined in the policy, nor did the claims fall within the personal or advertising coverage under the policy. The court further held that, even if coverage were found, it is limited to such damage or injury “caused in whole or in part by the insured’s acts or omissions or the acts or omissions of those acting on the insured’s behalf in the performance of its ongoing operations for the additional insureds.” In light of this clear language in the policy, it follows that coverage was denied because the counterclaims were based solely on the acts or omissions of the landlord, not on the acts or omissions of the tenant or those acting on its behalf. Lastly, the court agreed that there would be no coverage available to the landlord as exclusions apply.

Carolyn Bogart was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep in a dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle, which was unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when he left. He injured himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. In 2016, he filed a lawsuit naming all party attendees and fellow brothers in his fraternity, as well as the university and its employees. Following over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the underlying Superior Court decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally, but who nonetheless drank to excess. The appellate panel ruled that the Social Host Liability Act did not apply because it governs liability for third party injuries resulting from the service of alcohol to an of-age adult.

We successfully persuaded the New Jersey Appellate Division to reverse a coverage determination. The original determination had found that the plaintiff was entitled to $500,000 in coverage under her then-boyfriend’s insurance policy, rather than being limited to the $100,000 in her own policy. The Law Division rejected our arguments that the policy did not deem the plaintiff a “covered person” because she was the named insured in her own policy, and rejected the argument that the step-down provision applied. On appeal, the Appellate Division did not agree with us that the Law Division erred in its determination that the plaintiff was a “covered person,” but it did agreed that the step-down provision applied to limit the plaintiff’s recovery to that of her own policy. Cross petitions for review were filed with the New Jersey Supreme Court, which declined to alter the Appellate Division’s decision, resulting in significant savings on the claim for our client.

Walter Klekotka (Mount Laurel, NJ) and Walter Kawalec (Mount Laurel, NJ) were successful in defending a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff/resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first when the doors began to close. She alleged injuries occurred when the right door struck her arm and when she used her left arm and the left side of her body to slow the doors from closing while she leapt into the elevator. She sued our clients and the company hired to maintain the elevator, but she was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff could not establish the third element of the doctrine: that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable, and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants’ favor.

The case involved a compensable claim for right hip and shoulder fractures sustained in a fall. At issue was the level of permanent disability for the compensable injuries and the relatedness of a subsequent hip replacement surgery. The petitioner’s demand before trial was more than $450,000, plus almost $78,000 for medical expenses. The employer’s final offer was $180,000. After a three-day trial in Ocean County, the judge awarded permanency benefits totaling less than $153,000. Further, the judge determined that the hip replacement surgery was not related and denied the entire $78,000 medical bill claim.

We obtained an order of Dismissal in favor of a municipality in connection with a lawsuit filed by a worker. ​The worker sustained catastrophic injuries as a result of a mishap on the job which caused him to fall from the roof of a condominium project under construction. This was a multi-party action in which our client, the municipality, issued the permits but failed to carry out the inspections. Notwithstanding, we were able to demonstrate immunity under the New Jersey Tort Claims Act, and the court entered the order of dismissal.

Marshall Dennehey successfully argued pre-trial motions to dismiss in the Superior Court of New Jersey, Camden County in a matter involving a $10 million tortious interference and defamation case filed on behalf of investors against an attorney and bank counsel arising out of a multi-million dollar loan for a commercial land transaction. The allegations against the attorney included slander and a claim for tortious interference, with prospective economic advantage for a contract that the plaintiff entered into with the investor. With regard to slander, we argued that the established case law in New Jersey holds that the subject pejorative was simply name calling and did not rise to the level of actionable defamation or slander in New Jersey. The court agreed and dismissed the defamation claims. Additionally, the court dismissed the plaintiff’s tortious interference claim, rejected the plaintiff’s claims of willful misconduct of the bank’s attorney and found that the plaintiff’s damages claims, although supported by expert reports, were speculative. The court agreed with the defense argument that the plaintiff’s claims for lost profits were barred by New Jersey’s New Business Rule. Under the New Business Rule, prospective profits of a new business are considered too remote and speculative to meet the legal standard to recover damages. As a result, the court entered a dismissal of the entire case.

​The petitioner filed a motion for additional medical and temporary disability benefits, essentially alleging she was permanently and totally disabled from prior compensable shoulder and leg injuries. After a three-day trial and extensive briefing, the judge dismissed the motion. He determined that, despite the compensable injuries, the petitioner had plateaued medically and was not entitled to any further benefits.

Marshall Dennehey was successful in the New Jersey Appellate Division, which affirmed the dismissal of the plaintiff’s complaint under New Jersey’s Charitable Immunity Act. The defendant operated a shelter for battered women, their dependent children and the homeless. The plaintiff and her child were residents at the shelter and beneficiaries of its charitable goals when the plaintiff slipped and fell on ice on the shelter’s property. She argued that she was not a beneficiary of the charity because she did administrative tasks and volunteered in the charity’s thrift store. However, the trial court and Appellate Division rejected those arguments, holding that the plaintiff’s presence on the defendant’s property was due to her being a resident beneficiary of the charity, not as a result of any volunteer work she may have performed for the defendant. Thus, because her volunteer activities were incidental to her residency at the shelter, the Charitable Immunity Act applied and the dismissal of the complaint was affirmed.

We obtained summary judgment on behalf of a commercial tenant in a premises liability case. The plaintiff brought suit against our client, the commercial landlord and the City of Newark. The plaintiff alleged that the parties failed to maintain a condition of the sidewalk that caused a trip and fall. We moved for summary judgment for contractual indemnification, arguing that the co-defendant commercial landlord was obligated under the language of the lease to indemnify our client for the landlord’s own negligence. At oral arguments, we were able to establish that the language of the lease was clear and that it was undisputed that our client had no duty to the plaintiff. Furthermore, we were able to argue that the motion was not premature, as the co-defendant’s opposition conceded that, based on the language of the lease, we had no duty. The judge agreed with our arguments, and the court granted our motion for summary judgment and required the landlord to indemnify our client.

We obtained a dismissal of a legal malpractice action arising from a Law Against Discrimination and Conscientious Employment Practices Act action against a municipality and its School Board. In this complex multi-party action, our client, an expert in school law, was retained by the school district to handle a hearing against the plaintiff, a teacher and coach. The plaintiffs alleged a conspiracy among the lawyers and the school board to oust the plaintiff. There were also allegations of malicious prosecution and malicious abuse of process against the town and its attorneys. The court granted our motion and dismissed based on the litigation privilege.

We obtained a unanimous decision in the New Jersey Supreme Court reversing an order for a new trial. ​In this medical malpractice action, the defendant was a physician who allegedly committed malpractice when he prescribed a drug to a patient. According to the plaintiff's experts, she was not an appropriate candidate for the drug. The matter was tried by another law firm before a jury, which reached a defense verdict. However, on appeal to the Appellate Division, the court reversed and remanded for a new trial on the grounds that the defendant's change of testimony at trial, from what it had been in his deposition, prejudiced the plaintiff. The matter was then transferred to Marshall Dennehey for further appeal in the New Jersey Supreme Court. The Supreme Court unanimously agreed with the defense’s argument that the precedent which the Appellate Division had relied upon in ordering the new trial was distinguishable. Further, the fact that plaintiff's counsel failed to object to the changed testimony at trial was likely strategic and, therefore, did not prejudice the plaintiff sufficiently to compel the reversal. The court reversed and reinstated the jury verdict. 

On the eve of trial, we obtained summary judgment for our attorney-client, dismissing a complex legal malpractice case in which damages were sought in connection with the underlying land transaction. ​This case included allegations that our client had multiple conflicts. The plaintiffs’ claim for damages included an allegation of $8 million in lost profits due to our client advising the plaintiffs to sell out of this business deal early, while another client of the attorney made $40 million in this deal! We were successful in obtaining dismissal by demonstrating that the plaintiffs’ experts could not prove their lost profit claim due to New Jersey’s New Business Rule and due to the fact that they could not prove any out-of-pocket damages in this case.

The case involved a woman with significant cardiac problems who suffered cardiac arrest and death. Her estate alleged that our clients, a medical resident and an intern, improperly administered certain pharmaceuticals, leading to her death. The plaintiff originally named two physicians as experts, a cardiologist who was offered to testify to the standard of care, and a physician board certified in occupational medicine, medical toxicology and emergency medicine, who was initially named to give testimony on causation. Before deposition, the expert cardiologist withdrew, and the plaintiff did not obtain the services of another expert, choosing instead to attempt to proceed with the other expert providing both standard of care and causation testimony. The Appellate Division affirmed the decision of the trial court which dismissed the case, finding that because the expert did not devote the majority of his professional time in the year prior to the decedent’s death in a clinical practice that encompassed the medical condition or procedure at issue, he was not qualified under New Jersey law to offer standard of care testimony. As such, the dismissal of the complaint was affirmed.

We obtained the dismissal of a legal malpractice/fraud action brought by a nursing home against an attorney who represented a patient and who assisted the patient in the admission process. The owners of the nursing home claimed the attorney misrepresented his client’s assets in the application and that the nursing/assisted living facility relied on that representation in admitting the patient. However, the patient had previously filed an action against the nursing home for consumer fraud, and that case was still pending when the nursing home filed the legal malpractice/fraud action against the patient’s attorney. The defense argued that the legal malpractice/fraud action was barred under New Jersey’s Entire Controversy Doctrine. The court agreed and dismissed the legal malpractice action, with prejudice.

We obtained summary judgment in a wrongful death case arising from an alleged drowning in a whirlpool at a spa. The decedent, a 73-year-old woman, was found unresponsive by a lifeguard in the client’s whirlpool. There was no evidence as to how long the decedent had been submerged in the hot tub before she was found. The Medical Examiner conducted an autopsy and listed the decedent’s primary cause of death as hypertensive and arteriosclerotic cardiovascular disease, with cardiomegaly. Drowning was listed as a significant contributing factor. The plaintiff argued that our client was negligent by positioning the lifeguard in such a manner that the lifeguard would not have a direct line of sight to the bottom of the whirlpool from the lifeguard station, and that, had the plaintiff been discovered earlier, she could have been resuscitated. The defense produced an expert liability report stating that the client was in compliance with all applicable codes and standards. The defense also presented an expert medical report from a cardiologist who opined that the plaintiff suffered sudden cardiac death and could not have been resuscitated. Plaintiff’s counsel relied upon the Medical Examiner’s conclusions to prove medical causation and did not serve a liability report. Without reaching the issue of liability, the court found that the plaintiff did not meet the burden of proof on medical causation. The plaintiff could not simply rely upon the Medical Examiner’s conclusions as to the cause of death as he is not an expert in cardiology.

We obtained summary judgment in the Passaic County Superior Court of New Jersey on behalf of a non-profit shelter for battered women. The plaintiff, who was staying at the shelter at the time of her alleged incident, accused the shelter of negligence with regard to removing snow and ice from their parking lot. The plaintiff attempted to argue that she was not a “beneficiary” of the shelter but was a volunteer, who was not required to help but who chose to work at the shelter in exchange for room and board. Defense counsel successfully argued that the defendant was a qualified non-profit organization and that the plaintiff was clearly benefiting from the non-profit at the time of her incident. Therefore, the plaintiff’s claims were barred under the New Jersey Charitable Immunity doctrine.

We obtained a dismissal in the U.S. District Court for the District of New Jersey in an extremely complex, multi-party legal malpractice action. The action arose out of two estate litigations filed in state court in which our client was the attorney for the decedent and the temporary administrator. The plaintiff, the nephew of the decedent, filed a breach of fiduciary duty claim against our client in the U.S. District Court. The probate cases went against the nephew. The accountings were all approved over the nephew’s exceptions, in which he did allege that our client breached a fiduciary duty in handling the estate administration in failing to preserve documents, failing to locate the will, selling assets in contravention of his fiduciary role, failing to investigate property in the Bahamas, failing to preserve assets, and obtaining orders from the probate judges through fraud and deception. In its lengthy opinion, the District Court granted the defense’s motion to dismiss all claims against our client.

Obtained summary judgment for a licensed clinical social worker in a negligence, defamation, fraud and intentional infliction of emotional distress case. ​The plaintiff (the father, a police officer and president of the local school board) brought these claims after the social worker informed the Family Court of the children's allegations of physical and emotional abuse by the plaintiff, which were revealed to her during the minor children's therapy sessions. In granting summary judgment, the court found that the social worker's correspondence with the Family Court was immune from liability pursuant to the litigation privilege, irrespective of the fact that the court had not specifically sought her opinions and that she did not testify in the Family Court litigation. New Jersey recognizes immunity for all statements made in the course of litigation, regardless of their form, intent or truthfulness. The court also concluded that the plaintiff's claims for negligence and defamation were partially barred by the statute of limitations.

Secured a discontinuance for a multi-national auto financing company in a Chancery Division action in New Jersey arising out of claims by a potential franchisee against a dealership, the vehicle manufacturer, the financing company and a potential third-party buyer. The plaintiff's claims sought over $30 million in damages stemming from alleged violations of the New Jersey Franchise Act, breach of contract claims, tortuous interference allegations and a companion declaratory judgment action. The case involved the exchange of over half a million documents and extensive ESI discovery concerning sensitive consumer credit evaluations, personal net worth summaries, proprietary franchise statements, environmental impact studies, internal board meeting minutes, cell phone records, emails and due diligence materials, all subject to an order of confidentiality. The discontinuance was instrumental in clearing the path for the client to secure a key financing agreement with a new franchisor in a multi-million dollar dealer purchase. The settlement with the potential franchisee did not involve any contribution by the client.