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Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 30, No. 2, June 2024

June 1, 2024

Walter Kawalec (Mount Laurel, NJ) succeeded in obtaining a reversal by a panel of the New Jersey Superior Court, Appellate Division, on an interlocutory appeal. We sought review of an order granting discovery sanctions and denying reconsideration of that sanction’s order. The plaintiff claimed to have been injured in a hole in the parking lot at his work. His employer leased the location under a triple-net lease, which placed on the employer full responsibility for property maintenance and repair. The plaintiff sought in discovery to obtain tax return documents from the owner, among additional documents, which he hoped in vain would demonstrate some retained duty by the owner. When the plaintiff was dissatisfied with the answers to the discovery requests, he sought sanctions, which the trial judge granted. We successfully argued that this was an abuse of discretion (as was the denial of reconsideration) because the tax documents had to be first reviewed in camera; because we had fully answered the plaintiff’s discovery requests, although he was dissatisfied with the answers; and because the production of other documents merely needed a confidentiality agreement. The Appellate Division reversed the sanction order and remanded for further proceedings. Moore v. RE Associates, LLC, 2024 WL 1161734 (App. Div. Mar. 19, 2024)

Walter Kawalec (Mount Laurel, NJ) obtained an affirmance by a panel of the New Jersey Superior Court, Appellate Division, of the dismissal of a complaint, seeking insurance coverage for damage to an in-ground swimming pool after a storm. The plaintiffs had sought coverage for damage to their roof and the partial collapse of the pool. The carrier’s engineering inspection disclosed that the cause of the pool collapse was excessive hydrostatic pressure from the rainfall during the storm. The claim for the pool was therefore denied because the policy did not provide coverage for damage caused by ground water. The carrier paid on the claim for the roof damage in October 2020. Because the policy contained a provision requiring that suit must be brought within 12 months of the loss (although tolled during the coverage investigation), the carrier sought to dismiss the plaintiffs’ subsequent compliant, which alleged breach of contract and bad faith for the denial of the pool claim because it was brought more than 12 months after the carrier disclaimed coverage for the pool damage. The Appellate Division affirmed the dismissal of the claim as time barred, rejecting the plaintiff’s arguments for extending the time to file the complaint. Drevs v. Metro. Pro. & Cas. Ins. Co., 2024 WL 1461740 (App. Div. Apr. 4, 2024).

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining a per curiam affirmance in the Fifth District Court of Appeal of an order declaring the children dependent due to their father’s drug use and overdose in front of his children. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program and represented the interests of the child as part of the Defending Best Interests Project. S.M. v. Dep’t of Children & Families, 5D23-3142 (Fla. 5th DCA Feb. 1, 2024).

Kimberly Berman (Fort Lauderdale, FL) succeeded in convincing the Fifth District Court of Appeal to quash an amended discovery order to compel a church to identify church members and produce membership lists in a suit for exploitation, theft, conversion, declaratory relief, and other causes of action brought by a church member against the church. The court agreed with Kimberly’s arguments that the trial court’s order was deficient in that it failed to address the church’s claims of associational privilege under the First Amendment and that there was a disputed issue below as it related to the incorporation status of the church. St. Paul’s Catholic Church v. Hilt, 380 So.3d 1270 (Fla. 5th DCA Mar. 1, 2024).

Audrey Copeland (King of Prussia, PA) persuaded the Third Circuit to affirm the Pennsylvania district court’s grant of summary judgment as to various claims by the plaintiff, a former chief deputy sheriff, alleging retaliation and discrimination based upon sex, political beliefs and the First Amendment, in favor of our firm’s clients. Because the plaintiff failed to allege causation and to show that reconsideration was warranted, the district court’s dismissal of her First Amendment claim and denial of her motion for reconsideration were affirmed. The Third Circuit affirmed the district court’s disposition of the remaining claims because, even assuming the plaintiff established a prima facie case, the defendants provided a legitimate reason for her termination, which the plaintiff failed to show was pretextual. Fritz v. County of Westmoreland, et al., 2024 WL 808970 (3d Cir. Feb. 27, 2024) 

Ralph Bocchino and Shane Haselbarth (both of Philadelphia, PA) were successful in obtaining an order to move a very volatile case out of Philadelphia. This was a sexual assault case where, at first, the venue appeared prima facie good for Philadelphia until Ralph and Shane did a deep dive into the service and found one defendant (the one holding the case in the City) was never served and could not be found. As a result, the case is being transferred to Lackawanna County. Ralph and Shane were also successful in obtaining an order to move another case out of Philadelphia, in a a wrongful death and survival action that was filed in Lackawanna County for discovery before a complaint was filed in Philadelphia. The plaintiff had sustained very severe injuries in a head-on car crash with a tractor trailer that led to his death. Shane filed a motion to consolidate and transfer the case based on Rule 213, which Judge Bright of the Philadelphia County Court of Common Pleas granted. 

Elizabeth Driscoll (New York, NY) secured a victory in the New York Appellate Division, First Department. Following oral arguments, the court unanimously affirmed the lower court’s decision, which denied a medical provider’s Article 75 petition to vacate a master arbitration award. The court held that the Supreme Court correctly denied the petition to vacate the master arbitration award, as neither the lower arbitration award nor the master arbitration award were irrational and neither contained errors of law or fact.

*Results do not guarantee a similar result. 


 

Defense Digest, Vol. 30, No. 2, June 2024, 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. © 2024 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

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.