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Firm News

Gartner + Bloom, P.C., participates in Frosty’s Friends 2018 toy drive

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From: Gartner + Bloom, P.C.
Date: December 13, 2018


Gartner + bloom, P.C., spearheaded by New Jersey Partner Alex Fisher, is participating in this year's Frosty's Friends toy drive. The program collects children’s letters to Santa and sends them to volunteers who play Santa and buy, wrap, and deliver the gifts before Christmas. Happy Holidays!


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First Department affirms decision to dismiss claims against individual condo Board Members

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By:       Gartner + Bloom, P.C.
Date:    December 5, 2018

After winning summary judgment in the New York County Supreme Court, William Brophy successfully defeated the Plaintiffs’ appeal to the Appellate Division, First Department. The First Department affirmed the lower court’s decision to dismiss all claims against individuals who serve(d) on the condominium’s Board of Managers based on the business judgment rule.

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A Ticking Time Bomb: Existing Arbitration Clauses in Light of New Law

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By:         Jacqueline A. Muttick, Esq.
               Associate, New Jersey
Date:      December 3, 2018


While there is a strong public policy in favor of arbitration, the Appellate Division in Flanzman v. Jenny Craig, Inc., et al., __ N.J. Super. __ (App. Div. 2018), has held that arbitration provisions need to specify the arbitral forum or otherwise set forth the process for arbitration in order to be enforceable. The Appellate Division, in a November 13, 2018, published opinion that superseded its prior October 17, 2018, opinion, held that an arbitration clause that did not specify the forum or process for arbitration was unenforceable, as there is no “meeting of the minds” when the parties do not understand the rights that replace the right to a jury trial.

The Court found that parties to an arbitration agreement must select the forum, like the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services (“JAMS”), or otherwise set forth the process for arbitration at the time of the agreement. Failure to specify the forum or set forth the process for arbitration may result in an unenforceable arbitration agreement.

In Flanzman, plaintiff filed a lawsuit for employment discrimination and defendant, relying upon an arbitration clause, sought to compel arbitration. The clause at issue specifically stated the following:
“Any and all claims or controversies arising out of or relating to [plaintiff's] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind.”
While the trial court compelled arbitration, the Appellate Division reversed and held that there is no “meeting of the minds” between the parties when the arbitration clause lacks an agreed upon forum or process for arbitration. Citing Atalese v. United States Legal Services Group, 219 N.J. 430 (2014), the Court explained that arbitration agreements, like any other contract, require mutual assent and a “meeting of the minds” before the agreement will be found enforceable. Parties to an arbitration agreement must “clearly and unambiguously” agree to waive their otherwise statutory right to a trial, and the parties must understand the ramifications of that waiver. “[T]o understand the ramifications of a waiver of a jury trial, the parties must generally address in some fashion what rights replace those that have been waived.”

This fashioning includes setting forth the arbitrator(s) who will be used, or identifying an arbitral institution, like AAA or JAMS. Selection of an arbitral institution “informs the parties about the right that replace those that they waived in the arbitration agreement,” including the rules, procedures, and setting for the arbitration. The Court noted that if an arbitration agreement does not specify an arbitration forum it could nonetheless suffice by setting forth the process for selecting a forum.

The Court distinguished this matter from one in which a court under the Federal Arbitration Act (9 U.S.C. §5) or the New Jersey Arbitration Act (N.J.S.A. 2A:23B-11(a)) could appoint an arbitrator. The Court noted that the case under review was not a matter in which the parties could not select an arbitrator; rather, in this matter the forum, not the arbitrator, was unspecified. In the absence of a forum or forum selection process, there was no “meeting of the minds” or agreement to arbitrate.

The Court stressed in its ruling that there are no “talismanic words” required in an arbitration provision to make it enforceable, other than the requirement for a “clear mutual understating of the ramifications” of judicial waiver as set forth in Atalese. Since the arbitration provision in Flanzman did not set forth any arbitration forum or process for choosing an arbitration forum, or otherwise specify the rights replacing the right to proceed in court, the clause was unenforceable.

While the Appellate Division emphasized that this ruling does not require specific language in an arbitration clause to make it enforceable, it does add a previously unarticulated condition for such clauses to be valid. The Court in Atalese mandated that arbitration provisions clearly and unambiguously state that parties waive the right to seek relief in court and instead elect arbitration. The Flanzman ruling now requires the arbitration forum, or the process of choosing a forum, be denoted in sufficient detail so the parties understand the replacement forum.

While Flanzman dealt with an employment matter, it will likely have a far-reaching impact on arbitration clauses in other contracts, especially contracts between “sophisticated parties” and individuals. Now, parties seeking to enter into arbitration agreements need take heed not only to waive explicitly the right to bring an action in court (as required by Atalese), but also to specify the arbitration forum or forum-selection process in accordance with Flanzman.



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Associate Vera Tsai forces reversal at Second Department, which vacated a client’s previous default judgment and struck the Note of Issue, resulting in a return to discovery.

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After joining the defense for a Defendant held in default, Associate Vera Tsai successfully appealed to the Second Department. The Second Department reversed the lower court’s decision (i) vacating the default; and (ii) and striking the Note of Issue in order to permit further discovery by the client.

See the decision here.

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G&B successfully opposes Motion to Restore, leading to dismissal, of Suffolk County matter that presented unique property damage allegations

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By: Gartner & Bloom, P.C.
Date: September 27, 2018

Partner Arthur P. Xanthos and Associate Michael E. Kar successfully opposed a plaintiff’s Motion to Restore in a matter containing unique property damage allegations. Following the submission of opposition to the Motion, the case was dismissed.

See the decision here.

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Rodriguez v. City of New York – Court of Appeals decision is adverse to defense counsel’s ability to defend comparative negligence cases; holds that plaintiffs may obtain summary judgment on liability without establishing the absence of their own negligence

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By:      Roy Anderson, Esq.
            Associate, New York
Date:   April 5, 2018

The Court of Appeals dealt a significant blow to defense counsel in a recent decision, Carlos Rodriguez v. City of New York (2018), by holding that plaintiffs do not bear the burden of first establishing the absence of their own comparative negligence to obtain partial summary judgment as to liability in a negligence case. The Rodriguez decision arguably overrules Thoma v. Ronai, 189 A.D. 2d 635 (1st Dep’t 1993) aff’d 82 N.Y. 2d 736 (1993) and its progeny, which for two decades have been cited for the proposition that Plaintiffs moving for summary judgment on liability bear the burden of demonstrating the absence of any material issue of fact concerning their comparative negligence.

In Rodriguez, the plaintiff was employed by the City of New York as a garage utility worker. He was injured while working in a garage “outfitting” sanitation trucks with tire chains and plows. An out-of-control sanitation truck skidded on ice and crashed into a car in the garage which then pinned the plaintiff up against a rack of tires. He sustained bodily injuries which necessitated a spinal fusion surgery and rendered him permanently disabled from working.

After discovery, plaintiff and the City of New York moved for summary judgment on the issue of liability.  Plaintiff’s motion argued that even if there was an issue of fact with respect to his comparative fault, he was entitled to summary judgment on the issue of Defendant’s liability.  The Supreme Court denied both motions and held that there were triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence.  The First Department relied on Thoma and affirmed the denial of plaintiff’s motion because he failed to make a prima facie showing that he was free of comparative negligence.  In a split decision, the Court of Appeals reversed, holding that placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with New York’s system of pure comparative negligence, which was adopted in 1975 and is codified in Article 14-A, Sections 1411 and 1412 of the Civil Practice Law and Rules (“CPLR”).  The Court explained that in a pure comparative negligence state, such as New York, courts are directed to consider a plaintiff’s comparative fault only when considering damages; therefore, the Rodriguez decision gives effect to the plain language and legislative intent of Sections 1411 and 1412.

Section 1411 provides, in relevant part, that in an action for personal injuries a plaintiff’s culpable conduct “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages.”  Section 1412 further provides that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.”

The Rodriguez opinion explains that the legislature’s intent in enacting Sections 1411 and 1412 was “to bring New York law into conformity with the majority rule” which is that “a plaintiff’s comparative negligence is not a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant.”  Thus, the Court of Appeals held that “[p]lacing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the language of CPLR 1412.”  The Court also rejected the City of New York’s argument that comparative fault should be considered a defense because “it is not a defense to any element (breach, duty, causation) of plaintiff’s prima facie cause of action for negligence.”

Significantly, Rodriguez purports to distinguish – without explicitly overruling – Thoma, because in that case the First Department did not address the significance of Article 14-A and the plaintiff effectively conceded that if she failed to establish the absence of a material fact as to her negligence then summary judgment on the issue of liability would be denied.  Conversely, the Rodriguez plaintiff explicitly argued that he was entitled to summary judgment, even if there was an issue of fact regarding his comparative fault. 

The Rodriguez dissent rejects the majority’s reasoning and argues that the rule in New York is and should remain “that a plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment.”  The dissent further rejects that the Court was not overruling Thoma because “[s]ince Thoma, each Department has held that a plaintiff is precluded from obtaining summary judgment where issues of fact exist concerning comparative fault.”  The dissent also calls attention to the inequity of assessing a percentage of plaintiff’s culpability distinct from the defendant’s and noted that “[d]eterminations of degrees of fault should be made as a whole, and assessing one party’s fault with a preconceived idea of the other party’s liability is inherently unfair.”

It is not hard to imagine the injurious effect that Rodriguez will have on defendants when it comes time for juries to apportion liability.  As articulated by the dissent, defendants will effectively be “entering the batter’s box with two strikes already called.”


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Recent Publication by Associate Attorney Jacqueline Muttick

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By:      Gartner + Bloom, P.C.
Date:   April 2, 2018

            Associate Attorney Jacqueline Muttick was recently published in CLM Construction Magazine. Ms. Muttick examined a New Jersey Supreme Court decision that held that a construction defect action accrues not upon substantial completion of construction but instead when the building’s owner knows or should have known through reasonable diligence about the existence of an actionable claim. See the full publication here.

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First Department finds factual issues in §241(6) exclusion, and holds that claim by a lessee's contractor triggers the lessor's indemnity

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By: Michael E. Kar, Esq.
       Associate, N.Y.

Date: December 27, 2017

Synopsis:

            On March 1, 2018, the First Department entered their decision in Karwowski v. 1407 Broadway Real Estate LLC. This decision gleans two important considerations for insurers and practitioners, in the Appellate Division’s: (i) holding that a lessor’s indemnity provision will be triggered by a claim by a lessee’s contractor; and (ii) finding of factual issues with the lower court’s exclusion of a contractor’s workshop from liability under 241(6).

Background:

            Defendant 1407 Broadway Real Estate LLC (“Broadway”) is the owner of the building wherein this claim arose. Broadway holds an operating lease for the entirety of the building, located in Midtown Manhattan, New York. Defendant Cayre Grp Ltd. (“Cayre”) leases the 41st and 42nd floors of Broadway’s building, and holds a lease extension with Broadway. Plaintiff is a former employee of XCEL Interior Contracting, Inc. (“XCEL”), a third-party defendant in the action. While employed by XCEL, Plaintiff injured his hand while cutting plywood on an unprotected table saw, located on the 16th floor of Broadway’s building. Plaintiff’s injury was in the furtherance of a project undertaken by Cayre, for which XCEL was hired as a contractor.

Indemnity Trigger:

            Pursuant to the lease extension with Broadway, Broadway was given direction and coordination over XCEL, who was one of the lease’s memorialized approved contractors (“[a]ll work done by the contractor [XCEL] must be coordinated with the Building Manager”). This lease extension also contained the following indemnity, recited in pertinent part: “Tenant shall indemnify, defend and save harmless Landlord… from and against (a) all claims of whatever nature against Landlord arising from any act, omission or negligence of Tenant, its subtenant, contractors, licensees, agents, servants, invitees, employees or visitors…”

            Broadway cross-claimed below for summary judgment as to the issue of their contractual indemnification, a claim that was not granted. The First Department reversed and found for Broadway on this issue. The Appellate Division found that this indemnity was clear and unambiguous. In response, Cayre argued that this provision required a finding of “active negligence” or fault on behalf of Cayre. The First Department disagreed with this assertion, in holding that “all that is necessary to trigger the provision is a claim arising from any act or omission of Cayre or Cayre’s contractor…” (emphasis added). Cayre’s contractor here was XCEL, employer of the Plaintiff at the time of the alleged accident. The court held that no negligence was needed to trigger the indemnity, and instead, all that was needed was work being done by Cayre or their contractors within the building leased by Broadway.


Factual issue found in Labor Law §241(6) analysis:

           At the Supreme Court below, Plaintiff’s claims under Labor Law §241(6) were dismissed. Section 241(6) imposes on property owners (and lessee’s under Article 10 of New York Labor Law) the duty to provide reasonable protection and safety for workers, and to comply with all Department of Labor regulations. The issue in application of §241(6) was, primarily, centered around the physical location at which the injury took place. The location was the 16th floor of the building in question. A portion of the 16th floor was XCEL’s in practice, an area where they would keep materials and tools used for renovations within the building. However, no personnel or office furniture existed in a permanent capacity, and XCEL had no lease and did not pay any rent for the space. XCEL maintains a separate permanent office and workshop in Queens.

          In support of their motion for summary judgment as to the applicability of Labor Law §241(6), Defendant Cayre asserted that the 16th floor is a permanent workshop where “for the past 10 years, the… plaintiff reported to work each day….” Their argument concludes that due to these facts the 16th floor is not the statutorily protected “area[] in which construction, excavation or demolition work is being performed….” N.Y. Labor Law §241(6).

            In granting Cayre’s motion for summary judgment below, the Supreme Court found that the 16th floor of the building “was a permanent workshop controlled by XCEL, not a temporary staging area ancillary to the Project and controlled by Cayre.” By extension, this also released Broadway under §241(6).

            The First Department reversed and remanded for the court below, finding that “there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area.” In remanding, the Appellate Division cited such cases as Gerrish v. 56 Leonard, 147 A.D.3 511 (1st Dept. 2017) (factors for determining applicability of 241(6) are physical proximity, common ownership, and operation of off-site premises) and Gonnerman v. Huddleston, 78 A.D.3d 993 (2d Dept. 2010) (241(6) extends to areas where materials are being readied for use, contrary to areas where materials are merely stored for future use).

            Lastly, and most important for Labor Law practitioners, the First Department then reasoned that because §241(6) would apply if the saw had been utilized on the 41st floor, the Plaintiff should not have an “automatic loss of the protections afforded by the statute” because Plaintiff chose instead to cut the wood on the 16th floor, and then bring it up to the 41st floor in an elevator.

            Application of this trigger to indemnity warrants widespread consideration across the legal universe. The analysis of Labor Law §241(6) by the First Department should be applied by insurance carriers and Labor Law practitioners to all future cases concerning the Section. Insurers should be aware that the designation of a physical area as a construction area is increasingly subject to more liberal interpretations – especially in regards to defense-side summary judgments motions.
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New Year, New Contract Drafting and Due Diligence Concerns for Partnerships

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By:      Michael E. Kar
            Associate, New York

Date:   December 27, 2017

            Entities that are taxed as partnerships enter 2018 with fresh concerns in relation to due diligence and contract drafting, in reaction to changes in the statutory regime impacting audit procedures for taxable years starting after December 31, 2017.

           By way of background, in the early 1980s a series of statutes, consolidated as the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), changed the way partnerships were audited by the IRS. Where previously each partner was individually audited and then collected from, TEFRA supposedly streamlined the process by auditing the partnership as a whole, and then applying the results to each individual partner, taking into account his or her specific tax attributes. This meant that these adjustments were based in part on each individual partner’s taxable rate. Now, however, new rules will alter that statutory regime, regulations that follow the Bipartisan Budget Act of 2015.  The rules of the BBA are effective for partnership returns for tax years beginning after December 31, 2017.


            TEFRA was deemed in need of improvement for a collection of reasons. One such reason was who exactly the IRS would deal with in regard to the partnership. There was difficulty in ascertaining who the single ‘tax matters’ partner was.  Sometimes, this was an unofficial coalition of partners who would deal with the IRS, creating conflicting information and procedural confusion. Along with a series of other inefficiencies, it was determined that TEFRA resulted in fewer tax-eligible partnerships being audited.


            Following the new rules at hand, the most immediate consideration imposed upon partnerships is the necessary designation of a “tax partnership representative”. This is a designated individual (or entity) with whom the IRS interacts. Unlike the ‘tax matters partner’, the tax partnership representative does not have to be a member of the partnership; the only statutory requisite is a substantial presence in the United States.


            Although requisites are minimal, this tax partnership representative is given substantial power in regard to potential audits. This representative of a partnership has the sole authority to act on behalf of the partnership with respect to auditing, including any settlement, and can make certain unilateral Internal Revenue Code elections. All partners are bound by this representative’s decisions as well as any final IRS determination relating to the pertinent audit. Drafting tip: a partnership representative should be chosen before 2018 because if there is no designation, the IRS will make the selection. In addition to the benefit of autonomy of choice due to this increased power, partnerships should select their own representative because IRS consent is needed to revoke any IRS-made designation.


            The second and far more substantial consideration is that the new rules allow the IRS to collect directly from the partnership, not just from the individual partners therein. This has been termed the “imputed underpayment”, and this adjustment is applied to the year in which the audit was centered, the “review year.”


            In terms of tax rates, in contrast to TEFRA and the prior statutory regime which utilized the tax attributes of individual partners, the new rules would apply one rate to the entire partnership. It is important to note that this rate would not be based on the traditional aggregate method of determining tax on partnerships.


            For this reason, among other potential considerations, partnerships may wish to avoid these changes. For qualifying partnerships, there are two options available.


            The first option is an opt out, exercisable each year by partnerships that furnish less than 100 required (not possible) K-1s. Partnerships can qualify to opt out, generally, as long as there are no owners that are: trusts; tax-disregarded entities; or other partnerships not meeting certain requirements. These qualifications may and should factor into the acquisition and disposition decisions of a partnership, both today and in the future.


            The second option, a sort of retroactive opt-out, is the election of a “push out.” If an audit tries to collect based on a previous review year, the partnership can push out the tax responsibility to the partners in that reviewed year, removing the tax responsibility of the partnership as a whole. Drafting tip: in consideration of possible adjustments that may be made under these rules, partnerships may want to impose an obligation on the partnership to push out in the event of an imputed underpayment.


            Pushing out requires (i) a timely election within 45 days of IRS notice of final audit adjustment, and (ii) that the partnership provides to each partner during that reviewed year their share of the adjustment. The latter share adjustment must also be sent to the IRS. If executed properly, each notified partner is thereafter responsible for payment. Drafting tip: a partnership may want to secure these obligations contractually with owners, either during the relationship or during the sale or transfer of that owner’s interest. This drafting consideration works both ways. Alternatively, owners who are releasing their interest may seek contractual indemnity for any future audits being done under these new rules, particularly for possible review years in which that owner held interest.


            Although this article addresses just a portion of the changes under the new rules, two obvious changes are needed moving forward for most impacted partnerships. First, existing tax distribution provisions should be reviewed in light of these developments, even if a partnership plans on systematic opting or pushing out. Second, new agreements to acquire or transfer interest should consider these rules and inject potential indemnities, preceded by new due diligence as to the partnership’s previous tax and ownership circumstances.


            These changes to the statutory regime may and should result in global considerations for acquisition and disposition of partnership interests, as well as a multitude of amendments to operating agreements, partnership agreements, contracts, and other instruments. Some of these changes, especially the designation of a tax partnership representative, demand immediate attention.


NOTE: This is not tax advice.

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