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Firm News

G&B’s Jeffrey Miragliotta selected to be on CLM Young Professionals Advisory Board.

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From: Gartner + Bloom, P.C.
Date:   February 14, 2019


            New York Partner Jeffrey Miragliotta was recently named to the Claims and Litigation Management (CLM) Alliance Young Professionals Advisory Board. Jeff was nominated and then appointed to a selective advisory board that is tasked with the national development of younger industry leaders in the field of claims and litigation management. Jeff, who specializes in insurance defense litigation, said that he is excited to get to work, and that he has already “seen an increase in both interest and potential across the younger generation of professionals in this area.”

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Gartner + Bloom Wins Seven-Figure Award in Manhattan Arbitration Involving LLC Dispute

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By:      Gartner + Bloom, P.C.
Date:   January 16, 2019


            Partner Arthur P. Xanthos and Associate Michael E. Kar recently won a seven-figure award on behalf of a member of a limited liability company (LLC) in the construction industry. The Firm’s client had been unjustly expelled from the construction company and denied his equity interest therein. G&B brought the issue to arbitration before the American Arbitration Association, which resulted in two weeks of hearings including extensive forensic analysis of LLC transactions, competing and complex business valuations, and pivotal contract interpretation issues.

            All of the opposition’s counterclaims were dismissed, and the Firm’s client was awarded his full equity interest, with all costs and interest.

            G&B endeavors to settle business disputes practically and without the need for litigation (and indeed attempted to do so in this case prior to the arbitration). When necessary, however, our attorneys advocate for our clients to the fullest extent of the law in front of courts or arbitral forums.
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G&B obtains significant ruling against national brokerage firm, limiting New Jersey’s attachment statutes

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By:      Gartner + Bloom, P.C.
Date:   December 21, 2018


            Partner Alexander D. Fisher and Associate Kenneth M. O’Donohue of the firm’s New Jersey office recently represented a Connecticut woman in an effort by her former stock brokerage company to obtain a pre-arbitration attachment of her brokerage accounts. In fact, the brokerage company seized these accounts and restrained our client from accessing her funds, all without prior notice to her and the arbitrator to which both parties agreed or the arbitration hearing taking place, let alone having been decided on the merits. Prejudgment attachment is extremely rare and is customarily sought when a party is removing funds or engaging in fraudulent conduct before a matter is determined. 

            There was no serious dispute that the disagreement between our client and the brokerage firm, was subject to FINRA arbitration in New York. Our client had no ties whatsoever to New Jersey. She did not live in the state, own property in New Jersey, or conduct business in New Jersey. The brokerage company acknowledged this fact, but claimed the basis for the prejudgment ex parte seizure was because the brokerage company’s “headquarters” was located in New Jersey. With this rationale, the brokerage company claimed it could seize our client’s funds at any national bank where our client had an account, even if there was no actual account in New Jersey.

            This rationale clearly violated the minimum contacts test under the United States Constitution for obtaining personal jurisdiction over a defendant. We also moved on the grounds that the bank failed to comply with the requirements of the New Jersey statutes governing pre-judgment attachment, specifically N.J. Court Rules 4-60 and N.J. Rev. Stat. § 2A:15-41 and 42 (2016). We further moved because the brokerage agreement between the bank and our client required that any disputes arising out of the agreement be governed by New York law, and further stated that out client would accept service of process from the bank. Since a requirement of the attachment statutes is that the party against whom attachment is sought cannot be served within the state, we argued that the service provision in the brokerage agreement meant that prong of the statutory requirement could not be met.

            After extensive oral argument before the Hon. Francis B. Schultz, the Court ruled that there was no jurisdiction over our client in the State of New Jersey. The Court further ruled that merely the presence of a bank branch in the state did not mean that a party could seek to attach any assets of a bank customer, regardless of that customer’s connection to New Jersey. Additionally, Judge Schultz ruled that the service provision in the brokerage agreement meant that the bank could not meet the requirements of the relevant pre-judgment attachment statutes. Accordingly, the Court permanently vacated the writs of attachment and ordered our client’s funds released immediately.

            This case highlights the limits of jurisdiction. While the State of New Jersey (like many other states) has a “long-arm statute” to ensure that parties that avail themselves of the protection of New Jersey law cannot evade jurisdiction, the Court’s decision shows that there are limits to how far jurisdiction extends. Specifically, the Court’s decision indicated that a party cannot seek to attach a foreign bank account merely because the bank where the account is maintained has a separate branch office in New Jersey. Rather, the Court found that the State of New Jersey had to have some minimum contacts with the person against whom attachment was sought in order to exercise jurisdiction over that party. It further shows that a choice of law clause and/or a service provision in a contract should be carefully considered by the drafter, as merely selecting a venue of convenience for your client may foreclose them from seeking to bring a claim in a venue with more advantageous statutes.

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

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By:    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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From: Gartner + Bloom, P.C.
Date:   October 14, 2018


            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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