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Notable Win: Donald Servais v. Ocean Wholesale Nursery, LLC

Client: Ocean Wholesale Nursery as insured by Farm Family and third party was ESIS

Court: Appellate Division

Trial Attorney: John H. Geaney, Esq.

Brief Attorney: John H. Geaney, Esq. and former Capehart Scatchard attorney, Dana M. Gayeski, Esq., of counsel, on the briefs.

John H. Geaney, Esq. argued the appeal.

**Results may vary depending on your particular facts and legal circumstances**

This case involved a dispute about an Employment Separation Agreement and whether that agreement could have been construed to constitute a payment of workers’ compensation benefits, thereby tolling the statute of limitations. Our office represented Farm Family Insurance and ESIS.

Petitioner, hired as a consultant by respondent, Ocean Wholesale Nursery, LLC, suffered an amputation of three fingers of his right hand in January 2016. Believing the injury occurred at petitioner’s home, respondent paid no workers’ compensation benefits. Petitioner, however, believed that during his five years working with respondent their relationship had changed to that of an employee and filed a formal claim petition in October 2018.

Respondent filed a motion to dismiss under the two year statute of limitations. The motion was countered by an argument that an Employee Separation Agreement signed in January 2017 which paid petitioner $5,000 to resolve the business relationship was ambiguous and could have led petitioner to believe that the payment was in part for the loss of his fingers.

The parties agreed to try the issue of the statute of limitations separately and then reserve for a later trial all other issues, such as compensability and employment.

Upon hearing testimony and reviewing the terms of the Employment Separation Agreement, the Judge of Compensation concluded that the Separation Agreement included any and all claims, including the loss of fingers.  The judge also found that petitioner was an employee and was injured during the course of employment, although the judge previously agreed that these issues would be held for a later hearing.  Finally, the judge apportioned $1,000 of the $5,000 paid under the Separation Agreement to the petitioner’s injury to his fingers.

Farm Family appealed the decision to the Appellate Division, which reversed in favor of Farm Family and vacated the substantial award to petitioner.  The Appellate Division held that the Separation Agreement was not ambiguous and was not a payment of workers’ compensation benefits.

Read more about this matter by clicking here.

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Notable Win: Use Variance Approved for In-Law Suite in Unfinished Basement

On July 20, 2022, Alan P. Fox, Esq. obtained approval from the Eastampton Land Use Planning Board for an application for a use variance, allowing for improving an unfinished basement in a detached single family home to construct a “mother in-law suite.” The space will include a new bedroom, walk-in closet, bathroom, living room, kitchen, washer/dryer closet, foyer and separate exterior door for easy access to rear yard. The zoning officer previously denied a request for a zoning permit and building permit because of the fear the proposed improvements could result in converting the home into a 2 family-dwelling.

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Notable Win: Donna Marter v. Freehold Regional Board of Education

Client: Freehold Regional Board of Education/PMA

Court: Workers’ Compensation

Trial Attorney:  Christina M. Adinolfi Shea, Esq.

Brief Attorney: Michael P. McCaffrey, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Petitioner filed a Motion seeking an Order that respondent be barred from asserting its Section 40 lien rights arising from the settlement in the third party action.

Petitioner’s Motion requested an Order that respondent not be entitled to recover its statutorily provided lien.  More specifically, it requested no workers’ compensation lien be asserted on the $13,000.00 settlement proceeds in the third party action, and instead those proceeds be used to cover the costs and counsel fee incurred in the third party matter.

The Motion essentially argued that since petitioner’s attorney expended so much in costs in litigating the third party action, it would be unfair for respondent to recover the lien it is entitled to under N.J.S.A. 34:15-40.

Subsection (e) of N.J.S.A. 34:15-40 provides that for purposes of Section 40, “ ‘expenses of suit’ shall mean such expenses, but not in excess of $750, and ‘attorney’s fee’ shall mean such fee, but not in excess of 33 1/3 % of that part of the sum paid in release.”

Respondent asserted the language of the statute is clear that in terms of calculating the lien, a maximum of $750.00 is to be deducted for costs in the third party matter.  The fact that the costs in the third party matter far exceed $750.00 has no bearing on respondent’s Section 40 lien rights and does not change the operation of N.J.S.A. 34:15-40.

Moreover, while petitioner’s Motion suggested she will be unfairly deprived of compensation if respondent recoups its Section 40 lien, the Motion ignored the fact that respondent already paid out $49,710.18 in medical and temporary benefits and $18,375.01 in permanency benefits pursuant to the original Order Approving Settlement.

Respondent maintained it is entitled to recover the full Section 40 lien amount of $7,916.67; there is no basis to set aside or compromise the lien.

The Judge of Compensation agreed and, in ruling for the respondent, he ordered the petitioner to send the respondent a check for the total remaining lien due.

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Notable Win: Anthony Aguero v. Shailesh Lulla and Founders Insurance

Client: Founders Insurance/Penn National Insurance 

Court: Superior Court of New Jersey -Bergen County

Brief Attorney: Edward F. Kuhn, III, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff alleges that Defendant Lulla rear-ended him causing serious and permanent injuries. Plaintiff also alleged that the accident was caused by an unidentified car that stopped short in front of him to allow another unidentified car to exit from a parking lot. As such, Plaintiff sought uninsured motorist coverage from his carrier, Founders Insurance for the negligence of the unidentified cars.

Discovery showed that neither of the unidentified cars acted in any negligent manner. Plaintiff was able to bring his car to a stop without hitting the car in front of him that he alleged “stopped short.” Defendant Lulla testified that Plaintiff stopped in front of him and Lulla was simply not able to stop his car in time before impacting the rear of Plaintiff’s car.

We filed a motion for summary judgment on behalf of Founders arguing that no negligence could be found on either of the unidentified cars and Plaintiff was thus not entitled to uninsured coverage.

The court issued an order and opinion granting Founders’ motion. The court held that it agreed with Founders’ position that the testimony of the parties proved there was no evidence of negligence on either of the unidentified cars. This was simply a rear-end car accident case between Plaintiff and Lulla. No other cars caused or contributed to causing the accident. Therefore, Plaintiff is not entitled to uninsured motorist coverage from Founders. All claims and crossclaims against Founders were dismissed with prejudice.

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Notable Win: Cannabis Business Resolution of Support Granted After Second Hearing

Client: Jersey Meds Management LLC

Court: Pennington City Counsel

Representing Attorneys: Sheila M. Mints, Esq. and Benjamin P. Ojserkis, Esq.

**Results may vary depending on your particular facts and legal circumstances**

After multiple competitive hearings with multiple applicants our client won a Resolution of Support from the town of Pennington for its Cannabis business.

In order for our client to receive approval from the state to open a dispensary, a resolution of support from the town they want to locate in is necessary.

This was a big win for our client as the resolution of support from the local town is the most difficult part of getting approval to open a cannabis business from the state. Many towns such as Pennington cap the number of cannabis businesses that can open in their town so it becomes a very contested affair.

After our clients were denied at the first council meeting Ms. Mints got the Council to give us a second hearing and ultimately got our client what they needed – a resolution of support.

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Notable Win: Haddon Township BOE v. J.C. on behalf of J.C. (J.C., the minor student, is referred to as J.C.J. to distinguish party initials).

Client: Haddon Township BOE

Court: Office of Administrative Law

Trial Attorney: Robert A. Muccilli, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

The school district brought an action for emergent relief against J.C., on behalf of J.C.J., seeking an order to immediately place the student in an alternative placement of home instruction pending completion of a re-evaluation because maintaining the child’s current placement was substantially likely to result in injury to the child or to others, along with an order to compel parental consent for reevaluations.

The OAL concluded that the school district satisfied all of the requirements for emergent relief and ordered that the request for emergent relief be granted.  The OAL ordered that J.C.J. shall be immediately placed in an alternative placement of home instruction for dangerousness for the remainder of the 2021-2022 school year and that J.C. shall fully cooperate with all efforts, requests and requirements in providing releases, scheduling and securing J.C.J.’s attendance at all evaluations/assessments.

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Notable Win: Haddonfield Borough Board of Education, Camden County v. M.L. and T.N. on behalf of J.N.

Client: Haddonfield Borough BOE

Court: Office of Administrative Law

Trial Attorney: Robert A. Muccilli, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The school district brought an action for an expedited due process hearing and emergent relief with New Jersey Department of Education, Office of Special Education Programs (“OAL”) seeking an interim alternative educational placement on the grounds that the continued the student’s placement in the Middle School was substantially likely to result in injury to the student and others.  M.L. and T.N., on behalf of J.N., filed a cross-petition for emergent relief with the OAL, seeking the immediate return of J.N. to school under the doctrine of stay-put.

Following oral argument on the respective emergent applications, OAL granted the school district’s application for emergent relief and removed J.N. from his placement.  The OAL further ordered that J.N.’s records may be released to out-of-district schools deemed appropriate by either or both parties for the purposes of evaluating J.N. for admission. 

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Peters v. Foulke Management Corporation, et al.

Client: Foulke Management Corp., Alex Epshetyn (pled as “Alex Epstein”), and Bob Armstrong

Court: Superior Court of NJ

Brief Attorney: Laura D. Ruccolo, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

Summary judgment granted in favor of Defendants dismissing Plaintiff’s claims for defamation, invasion of privacy, tortious interference, intentional infliction of emotional distress, wrongful termination based on age discrimination under New Jersey Law Against Discrimination and wrongful termination for age against public policy.

 

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Dennison v. The New Hope & Ivyland Railroad, et al.

Client: New Hope & Ivyland Railroad and Bucks County Railroad and Restoration Corp.

Court: Bucks County Court of Common Pleas

Trial Attorney: Christopher J. Hoare, Esq. and Christina M. Dewland, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff was a 46 year old passenger who injured her left ankle, lower back, and knees while exiting the New Hope & Ivyland Railroad’s Halloween excursion train which was discharging its passengers at the station platform in New Hope, PA in 2017.  Plaintiff claimed  she sustained severe internal derangement of her left ankle, lumbar pain, and knee pain.  She underwent an open reduction and internal fixation surgery with hardware at Penn Medicine.  Plaintiff was seeking past and future medical care, economic loss, and pain and suffering.

Plaintiff claimed that the design and construction of the client’s train and station platform construction were unsafe and that there was no handicap ramp over the gap in the platform.  She also claimed that the defendant did not warn her that she was nearing the end of the train car.  The defense presented evidence that the client’s train, platform, and passenger operations complied with all ADA and railroad safety regulations including handicap ramps.  The defense also argued that Plaintiff failed to observe and step over the open and obvious gap between the platform and the train.

A jury of 8 jurors deliberated for 45 minutes before reaching a unanimous verdict that our client, New Hope & Ivyland Railroad and Bucks County Railroad and Restoration Corp., were not negligent.

 

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Aleice Jeter v. Sam’s Club and Linden Route One Associates (A-2-21)

Client: New Jersey Food Council (amicus curiae in support of Sam’s Club)

Court: Supreme Court of New Jersey

Trial Attorney: Betsy G. Ramos, Esq. (prepared and argued our amici arguments before the NJ Supreme Court)

**Results may vary depending on your particular facts and legal circumstances**

Supreme Court affirmed the lower court rulings in favor of Sam’s Club, ruling that sale of grapes in closed, sealed clamshell container not subject to Mode of Operation rule; rather, injured plaintiff who fell on grape on the floor would need to prove that Sam’s Club had actual or constructive notice of the grape on the floor to be able to pursue a claim for her injuries. Without such notice, the lawsuit was dismissed.

To view the case, please click here.

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