New Jersey Law Blog

What Happens if I Die Without a Will?

Rosemary D. Durkin — Fri, 03 Feb 2012 08:00:54 -0500

If someone were to die without having a will in place, a common misconception that is often times mentioned is that the deceased’s assets are turned over to the State. This is completely false. Instead, state law determines who will receive the deceased’s property. Each state has a statute (the intestacy statute) that provides who the people are that are the closest relatives to the deceased, and those relative receive the deceased’s estate.

New Jersey law is as follows:

For a single person:

To the person’s descendants
If there are no descendants, to the person’s parents
If there are no descendants or parents, to the descendants of the person’s parents
If there are no descendants, parents, or descendants of parents, one-half to the paternal grandparents, or if they are also deceased, to their descendants; and the other one-half to the maternal grandparents, or their descendants
If there are no descendants of grandparents, to stepchildren

For a married person (spouse or domestic partner):

The entire estate passes to the surviving spouse, if there are no descendants or parents of the deceased.
If there are descendants, all of whom are also descendants of the surviving spouse, then the surviving spouse receives the entire estate.
If the deceased is survived by a spouse and parent(s), the spouse receive the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus 75% of the balance; the parent(s) receive the remaining property of the estate.
If the surviving descendants are also descendants of the surviving spouse, and the surviving spouse has other descendants; or if there is a descendant of the deceased who is not a descendant of the surviving spouse, then the spouse receives the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus 50% of the balance. The descendants receive the remaining property of the estate.

Now, maybe these are the people who you would want to inherit from you. But maybe they are not. Preparing and signing a Will gives you the power of choice to benefit others - family, friends, and/or charity - rather than relinquishing that choice to the government.

There is another important issue that state law will control if a person has died without a Will: guardianship of your minor children. If a child under the age of 18 has no living parent, state law determines that the child’s closest next of kin have the first right to serve as the child’s guardian. Being the closest relative does not really qualify someone to raise a child. And, if several persons are related in the same way to the child (for example, both sets of grandparents), the Court then decides, with both sides of the family incurring legal fees as well suffering an emotional hardship. Again, it is a matter of choice - should you choose who should raise your child in the event of an untimely death, or should the government?

Preparing a Will is not something you do for you - it is something you do for your family. To ensure your loved ones are benefitted, that your children are properly cared for, and that your estate is administered at the least possible cost, please contact us as to how we can assist you in preparing a Will and other estate planning documents.

Rose Durkin is a Shareholder in Stark & Stark's Lawrenceville, New Jersey office specializing in Wills & Estate Planning. For questions, please contact Ms. Durkin.

Bankruptcy 101 for Lenders: Key Points to Consider in a Chapter 7 Filing

Bari J. Gambacorta — Thu, 02 Feb 2012 08:15:56 -0500

With the advent of the bankruptcy law changes in 2005, individuals have fewer alternatives when considering bankruptcy. An individual facing bankruptcy has three options to consider filing under, those being Chapter 7, Chapter 11 or Chapter 13 of the code. For a lender, the consumer’s choice of chapter has unique implications to be considered, and the devices and methods available to the lender under Chapter 7 will be considered in this article. The lender’s options for protective actions in Chapters 11 and 13 will be discussed in later articles.

Since Chapter 11 is typically used by small businesses we’ll start off by comparing Chapter 7 and 13 proceedings. The key difference between Chapter 7 and Chapter 13 is the repayment of debt. Chapter 7 is bankruptcy liquidation, meaning your assets are liquidated to pay lenders, with certain exceptions. Chapter 13 allows consumers with a regular income to establish a payment plan to pay back all or some of their debts to creditors, over a period of time.

To qualify for a Chapter 7 bankruptcy a consumer must obtain mandatory credit counseling within 180 days before filing bankruptcy, meet the means test and then file a petition and related schedules with the bankruptcy court. Upon filing, the automatic stay is put in place, which limits the actions of creditors and other pending legal actions. The court will appoint a Trustee to oversee the case. In a Chapter 7 a consumer’s assets (valued as of the date of the filing), with certain exceptions, will be liquidated and the proceeds will be used to pay creditors. At the termination of the matter the consumer will receive a discharge.

In this Chapter, a consumer’s home may be saved only if payments are kept current. Therefore, a lender should closely monitor the payments. If they are not made, the lender should refer the account to Bankruptcy Counsel who can then apply for relief from the automatic stay.

As a less costly alternative the lender can wait until the trustee has abandoned his interest and the debtor has been discharged in Bankruptcy and then start the foreclosure process (this is not recommended since the foreclosure process may take several months and the sooner one starts the process the more likely that a greater recovery will be achieved). Time almost never favors the lender in the current market and in the foreclosure process.

In this Chapter a loan secured by a vehicle must be kept current. A lender should closely monitor the payments and insurance for the collateral. If they are not timely made nor kept in place the lender should refer this to Bankruptcy Counsel who can then apply for relief from the automatic stay. The lender can also wait until the trustee has abandoned his interest and the debtor has been discharged in Bankruptcy and then start the repossession/replevin process but this is not recommended. This collateral is subject to vast depreciation and loss.

The consumer has one of four options:

He can keep the payments current
Redeem the vehicle for its value (usually NADA wholesale or its equivalent)
surrender the vehicle, or
reaffirm the debt

While reaffirmation achieves the ultimate protection for a creditor, the amendments to the bankruptcy code have made this path so arduous that it is seldom achieved and the time and energy spent make this an impractical choice in most instances. If reaffirmed and approved by the Court, the consumer is bound by the original contract and may be sued for a deficiency if he were to default.

Bari Gambacorta is a Shareholder in Stark & Stark’s Bankruptcy & Creditors' Rights Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Gambacorta.

Should a Post-Complaint Rise in Income be Considered in Determining Alimony?

Maria P. Imbalzano — Mon, 30 Jan 2012 08:06:08 -0500

In determining alimony, we are compelled to take into consideration the 13 factors set forth in our statute. Of utmost importance is the actual need of one spouse and ability of the other spouse to pay, along with the duration of the marriage and the standard of living established during the marriage.

In a recent case (Dudas v. Dudas, decided on April 11, 2011), the Defendant/Husband earned between $40,000 and $59,000, towards the end of the marriage. A Complaint for Divorce was filed in 2008, and the case was tried in 2011. Over those years, the Husband’s income increased wherein he earned $64,000 in 2009, $76,000 in 2010 and $68,000 in 2011.

The Defendant argued that his post-Complaint income should not be considered in any alimony calculus and that only the income he earned up to the date of the Complaint should be considered, since the parties’ standard of living was based on his pre-Complaint income.

While the standard of living established during the marriage is a predominant consideration, this factor does not stand alone. The Court held that the actual need and ability of a party to pay directs an analysis of the parties’ present needs and ability to pay, not the past. One of the other factors is the earning capacities of the parties which is also a current consideration.

The Dudas Court also considered two additional factors under the catch-all factor of “any other factors which a court may deem relevant.” They are:

the marginal cost estimation; and
momentum of the marriage

The marginal cost estimation has to do with the fact that a couple living together is less expensive than a couple living separately in two households. Further, once each party establishes their separate residence, each party’s new budget is not 50% of the marital budget, it is generally more, and may not be substantially less than the two person household budget. In many divorce cases, when the parties separate, there is insufficient money available for either party to maintain the standard of living enjoyed during the marriage.

In the Dudas case, the Court felt it was fair to bring both parties reasonably closer to the marital standard of living, which could only happen by looking to the husband’s increased available funds after the Complaint date.

Momentum of the marriage recognizes the fact that one’s occupational efforts may take years to pay off. A person’s earning level may start out slow, but through experience, education and perseverance, it may increase dramatically the longer a person works in that particular field.

Therefore if a party focuses on his career throughout the course of a marriage, while the other party, as in the Dudas case, maintained the home, cared for the children and provided support and encouragement for the husband in his professional endeavors, then a post-Complaint rise in income will be considered in determining alimony.

Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: mimbalzano@stark-stark.com.

Lady Gaga's Personal Assistant Sues for Overtime Compensation and Provides an Opportunity to Remind Those Who Employ Personal or Executive Assistants of Their Obligations Under Wage and Hour Laws

Amy Beth Dambeck — Fri, 27 Jan 2012 08:09:00 -0500

A former personal assistant of Lady Gaga recently filed a lawsuit against the entertainer’s touring company claiming that she was improperly denied hundreds of thousands of dollars in overtime pay under both the Federal Fair Labor Standards Act (“FLSA”) and New York state law. O'Neill v. Mermaid Touring Inc., Civil Case No. 11-9128 (Southern District of New York, Dec. 14, 2011). In support of her allegations, the former assistant claims that her position did not qualify for the “administrative exception” to overtime laws because she did not exercise any significant independent discretion or judgment in her role while she, essentially, worked around the clock in exchange for a fixed salary. Although the assistant worked a mere 13 months for the pop star and was well-compensated for the position (pursuant to the complaint, she was initially paid $1,000 per week and, subsequently, an annual salary of $75,000), she claims that she was on call 24/7 to handle tasks that did not require any independent discretion or judgment and, accordingly, is seeking $380,000 in back overtime compensation for 7,168 overtime hours that she allegedly worked in the star’s home and while touring and traveling with her around the world.

Cases such as these tend to catch our attention either because of the large amounts of money sought and/or because of the celebrity involved, but often their significance to more typical employment relationships goes unnoticed.

Regardless of the ultimate merits (or lack thereof) or outcome of the lawsuit, the case illustrates two wage and hour issues that employers should be cognizant of: (1) the administrative exemption to overtime; and (2) the ways in which non-exempt, on-call employees should be compensated and/or treated.

Administrative Exemption to Overtime
Under the U.S. Department of Labor (“DOL”) regulations, an administrative assistant who is paid on a salaried basis and exercises significant independent discretion and judgment is exempt under the "administrative exemption." 29 CFR § 541.203(d). This exemption also applies to employees who exercise significant independent discretion and judgment in performing "office or non-manual" work. Challenges to the applicability of the exemption to executive or personal assistants are not uncommon. Although some courts have expressed reluctance to rule that well-compensated individuals providing such assistance do not exercise "discretion and independent judgment,” case law remains unclear.

Non-Exempt, On-Call Employment
This case also serves as a reminder that on-call employment must not unduly restrict a non-exempt employee’s ability to spend his or her time away from the job. The amount of restrictions imposed on a non-exempt, on-call employee’s time not at work will be considered in determining whether or not an employee should be compensated for on-call hours. For example, if required to remain on an employer’s premises or within such a close distance that prevents the employee from using his or her time effectively or freely, the employee may be eligible to receive overtime pay under wage and hour laws.

The Take Away
Compliance with wage and hour laws requires an understanding of what it means to be exempt or non-exempt from overtime obligations. Further, employers of non-exempt employees are often unaware that some requirements of the positions may trigger payment/overtime obligations. For example, if a non-exempt employee of a marketing group is required to attend networking events outside of normal working hours, such time must be paid. Similarly, a building superintendent who lives at the building and is required to be “on-call” at all times may have to be compensated for all such “on-call” time if he is not permitted to leave the building (or travel beyond a limited distance) while off-duty but on-call.

Relevant to this personal assistant’s case, employers and individuals who retain personal or executive assistants should be aware of the employment risks associated with such employment and the need to pay such employees on a salaried basis and ensure that the assistants utilize independent discretion and judgment in performing their job duties in order to qualify for the protections afforded by the administrative exemption to overtime payment obligations.

For more information on this decision and how it might apply to your organization or employment, contact Amy Beth Dambeck, member of Stark & Stark’s Employment Group, via email: adambeck@stark-stark.com

Appellate Court Interprets 'Housing-related dispute' Clause in New Jersey's Condominium Act to Include Assessment-Related Disputes

David J. Byrne — Thu, 26 Jan 2012 14:36:14 -0500

New Jersey’s Appellate Court recently held that unpaid assessment and/or maintenance fee delinquency disputes between a condominium and a unit owner are ‘housing-related’ disputes for the purposes of New Jersey’ Condominium Act, N.J.S.A. 46:8B-14(k). In Bell Tower Condominium v. Pat Haffert, et al, the board approved a special assessment related to alleged necessary repairs. Haffert’s share was $22,000.00. Haffert refused to pay. Haffert – who was a board member at the time - challenged the special assessment on procedural and substantive grounds. He argued that the vote was mishandled, that the board had violated the Act repeatedly over the years via its failure to procure annual audits, have elections, have open meetings, make financial records available for inspection, etc. When Haffert still refused to pay, and attorney communications failed to resolve the dispute, the condominium sued. Haffert filed a counterclaim, in which he sought an order compelling the condominium to provide him alternative dispute resolution (“ADR”) vis a vis the assessment-related dispute. At the case’s conclusion, the court entered a $22,000.00 judgment against Haffert. The court rejected Haffert’s ADR-related claims.

Haffert appealed. On appeal, the court reiterated the dictates of Finderne Heights, an appellate court decision from 2007. In Finderne Heights, the appellate court ruled that – because of the Act and its section 14(k) – all ‘qualifying disputes must be sent to arbitration if after suit is filed, either party chooses to invoke the alternative dispute remedy that must be made available under the Act.

It has been commonly understood that disputes involving unpaid assessments and/or maintenance fees were not ‘housing-related’ for the purposes of Finderne Heights and 14(k). The court in Bell Tower disagreed. This does not mean however that a condominium cannot commence a collection action at law and/or at equity without first offering and/or participating in, ADR. It means only that once a debtor – after suit is filed – pleads and/or seeks through formal court papers that the delinquency be the subject of ADR, the condominium must oblige. Since almost all disputes involving unpaid assessments and/or maintenance fees are uncontested, there should be no significant impact to the condominium’s assessment management and recovery program. Additionally, I assume that efforts will be made to amend the Act to overturn that decision. Before changing any process or program in light of the Bell Tower case, feel free to contact me to discuss and/or to clarify.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact David Byrne at 609-895-7365 or by email at dbyrne@stark-stark.com

The Future of Alimony in New Jersey Divorce Cases

John S. Eory — Thu, 26 Jan 2012 08:19:39 -0500

The obligation to pay alimony to one’s former spouse is a long-standing tenet of New Jersey statutory and decisional law. From time to time, various efforts have been made to reform and, in some cases, eliminate alimony which have proven unsuccessful. A new challenge has been mounted by New Jersey Alimony Reform, an organization founded by Thomas Luesek, a biology professor at Rutgers University, who was ordered by a Union County Court to pay permanent (i.e. indefinite duration) alimony to his former wife who he claims is capable of self support and does not need alimony.

Mr. Luesek’s organization seeks no less than the elimination of permanent alimony, a position supported by Assemblyman Sean Kean (R-Monmouth) who has introduced a bill to set up a blue ribbon panel to examine such changes and thereby “bring New Jersey into the 21st century”.

Such efforts will provoke discussion, of which this article is an example, but will likely bear little fruit. Alimony in New Jersey is based upon a myriad of statutory factors which the Court can utilize, balance or deem inapplicable in the circumstances of the case. These factors include need and ability to pay, duration of the marriage, marital standard of living, career interruption and other factors which give discretion to the Judge while imposing a set of guidelines for the Court’s instruction and application as circumstances deem “fit, reasonable and just” under the governing statute.

Contrary to popular assumption, Judges are required by law to utilize these factors and cite them in their decisions, as opposed to employing their personal sense of what is or isn’t “fair”. Coupled with the statutory establishment of multiple forms of alimony such as Limited Duration, Rehabilitative and Reimbursement Alimony, it is, in my, wrong to contend that the elimination of “permanent” alimony serves a legitimate legal or societal goal. This is not to say that every alimony case is decided in a manner acceptable to both parties; however, in my over 30 years of practicing matrimonial law throughout New Jersey, the overwhelming number of alimony awards (or denials) have been appropriate to the circumstances of the case. There also exists an enormous body of reported decisions which are legally precedential with respect to alimony and its variations, as a result of which New Jersey judges and lawyers are very well-informed.

I would be the first to add than an award of alimony is not the answer in every case. In fact, it may be deemed totally unwarranted as I, and other matrimonial attorneys, have learned through courtroom experience. Moreover, “permanent” (indefinite duration) alimony is always subject to modification based upon a substantial change in circumstances unless the parties specifically contract otherwise. Thus, the elimination of this type of alimony unfairly tilts the scales in favor of alimony payers and against alimony payees.

There are an increasing number of legal authors who propose a different look at alimony via the establishment of “alimony guidelines” which would determine the amount and duration of alimony awards on a uniform basis throughout all of New Jersey’s counties. Such guidelines would be rebuttable; that is, they could be demonstrated to be inapplicable in a particular case.

This dialogue should continue as uniformity of alimony awards is a legitimate topic. In contrast, arguments favoring the elimination of one type of alimony are not so framed and, in my opinion, run counter to New Jersey’s distinguished legal history in this important area.

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory: jeory@stark-stark.com.

Must Complete IRS Form 8332 for Dependency Exemption in a Divorce Case

Maria P. Imbalzano — Mon, 23 Jan 2012 08:57:11 -0500

Internal Revenue Code Section 152 defines a dependent for tax exemption purposes. If parents are divorced or separated with a written Separation Agreement, or live apart during the last six months of the calendar year, and if a child or children are in the custody of one of the parents for more than one-half of the calendar year, that parent may take the dependency exemption for each of those children.

In many cases, parties who are divorcing reach an agreement as to who may take the dependency exemption for their children in any given year. Sometimes they split the dependency exemptions between them if there are two or more children. For any divorce or agreement entered into from 2009 onward, if the custodial parent (parent having the children for the greater portion of taxable year) agrees to give the other parent an exemption in any given year, the custodial parent must sign a written declaration that the custodial parent will not claim such child as a dependent for said taxable year and the non-custodial parent must attach that declaration to his/her tax return. Prior to December 31, 2008, the non-custodial parent only had to attach the pages from his/her divorce decree or Separation Agreement to his/her tax return.

The form required now is IRS Form 8332 entitled “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.” Said form may cover the exemption for more than one year.

Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: mimbalzano@stark-stark.com.

The Entire Controversy Doctrine -Don't Waive Your Rights

CaryKvitka — Thu, 19 Jan 2012 10:15:28 -0500

In arguably the best episode of Seinfeld ever, Frank Costanza invented a new holiday called Festivus (for the rest of us), which started with the “airing of grievances.” Similar to Mr. Costanza notifying his dinner guests “I gotta lot of problems with you people, now, you’re gonna hear about it,” New Jersey’s Entire Controversy Doctrine requires parties to plead claims in a lawsuit that are related to or arise out of the same transaction or event.

The Entire Controversy Doctrine “is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter.” Oltremare v. ESR Custom Rugs, 330 N.J. Super. 310, 315 (App. Div. 2000).

For example, if a condominium association sues a residential developer for construction defects but fails to plead under the Consumer Fraud Act (which carries lucrative treble damages), the Entire Controversy Doctrine would likely prevent the association from recovering in a later lawsuit under the Consumer Fraud Act. By contrast, if the developer and the association’s president get into a car accident after a deposition about the construction defect suit, the personal injury claims from the car accident would not have to be joined in the construction defect suit because those two claims do not arise out of the same transaction or event.

It is therefore invaluable for litigants to identify all possible causes of action related to a transaction or event, preferably before commencing suit.

Stark & Stark’s Litigation Group has extensive experience navigating such complex issues, to maximize your relief and avoid legal pitfalls like the Entire Controversy Doctrine. If you have questions regarding this, or other similar complex issues, please feel free to contact me: ckvitka@stark-stark.com.

US Supreme Court Recognizes Religious Exception to Employment Discrimination Law

Amy Beth Dambeck — Wed, 18 Jan 2012 08:05:04 -0500

On January 11, 2012, the Supreme Court issued a unanimous decision in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (“Hosanna-Tabor”). The decision upheld a religious church-school’s termination of a teacher based on the “ministerial exception” and ruled that employment discrimination lawsuits are barred when the employer is a religious group or organization and the employee is one of the group or organization’s ministers.

Both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 contain exemptions that entitle religious institutions to discriminate on the basis of religion – but they do not permit such institutions to discriminate on other legally protected basis, such as race, sex, or disability. The federal courts of appeals, however, have long recognized a broader, ministerial exception: a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations (“religious employers”) by employees performing religious functions. The circuits have been in agreement about the core applications of the doctrine to pastors, priests and rabbis, but have been divided over the boundaries of the ministerial exception when applied to other employees, particularly those whose duties are more secular in nature.

The question presented to the U.S. Supreme Court in the Hosanna-Tabor case was whether the ministerial exception applied to a teacher at a religious elementary school who taught a full secular curriculum and predominately engaged in secular duties, was a designated “called teacher,” taught religion classes, and regularly lead students in prayer.

Put a bit more simply: the Court was asked whether or not Cheryl Perich could sue her former church-school employer, the Hosanna-Tabor Evangelical Lutheran Church (“Hosanna-Tabor”), for discrimination under the ADA.

In this case, the EEOC filed suit on Ms. Perich’s behalf and against Hosanna-Tabor, claiming that the religious employer had unlawfully terminated her employment in violation of the ADA and, specifically, that it wrongfully fired her in retaliation for her threat to sue the church-run elementary school under the ADA.

In defense of the termination, Hosanna-Tabor claimed that Ms. Perich was a minister, and that, therefore, it had a First Amendment right to fire her for threatening to sue, which was contrary to their belief that Lutherans should resolve their disputes internally, and not within the courts.

In response, Ms. Perich argued that she was not a minister, just a teacher, and argued that Hosanna-Tabor had violated her federal statutory rights to protection against disability discrimination. Although most of Ms. Perich’s duties and teaching subjects were secular, she was a “called” teacher with some religious responsibilities, and the “called” designation was one conferred by the church. The U.S. Court of Appeals for the Sixth Circuit held that because, functionally, Ms. Perich was a secular teacher with few religious obligations, she was not a minister. As such, the Sixth Circuit concluded that Hosanna-Tabor did not have a First Amendment defense, and that Ms. Perich could pursue her ADA claims.

In the Hosanna-Tabor decision, the Supreme Court rejected the Sixth Circuit’s analysis and concluded that Perich was a minister and, therefore, barred from pursuing her ADA claims.

The Supreme Court’s Decision
By the Hosanna-Tabor decision, the Court held that the Establishment and Free Exercise Clauses of the First Amendment serve as an absolute bar to employment discrimination suits brought on behalf of ministers against their religious employers; upheld the principle that it is impermissible for the government to contradict a church's determination of who can act as its ministers; and provided a fairly broad definition of “minister,” making clear that the designation is not limited to ordained clergy or their counterparts.

The Court did not address whether or not the bar may also apply to other types of suits brought by ministers against their religious employers – such as breach of contract or tortious interference claims.

Further, the Court did not articulate a rigid formula for deciding when an employee qualifies as a minister, choosing instead to apply a case-by-case approach which looks at the totality of the circumstances surrounding both the employee and the employment.

In a Nutshell…

The Court's decision confirms that the ministerial exception bars ministers from bringing employment discrimination suits against their religious employers.
However, this bar only applies to employment discrimination suits brought by ministers, not employment discrimination suits brought by other lay employees.
Further, the Court did not address whether or not the bar may also apply to other types of suits brought by ministers against their religious employers – such as breach of contract or tortious interference claims.
The decision establishes the ministerial exception as an affirmative defense, rather than a jurisdictional bar – meaning that unless the employer timely pleads the defense, it will be waived.

The Significance To Religious Employers and Employees
In light of this decision, religious employers must analyze whether an employee in question qualifies as a minister when making any employment decisions that could give rise to potential employment discrimination claims. Such required analysis must keep in mind that the definition of a “minister” may be broader than one might expect.

Further, because it is unclear whether or not the bar applies to other types of suits brought by ministers against their religious employers, such employers will still need to carefully evaluate all employment decisions for potential legal exposure – even for those employees who qualify as ministers.

Similarly, employees of religious institutions should be aware that, should the ministerial exception apply to them, they will be precluded from bringing employment discrimination claims against their employers and may be precluded from bringing other types of suits against their religious employers. In addition, employees that may not consider themselves “ministers,” may, in fact, qualify for the designation, thereby being subject to the bar against bringing employment discrimination, and, potentially, other claims against their religious employers.

Stark & Stark Shareholder Comments on Wall Street Bonus Check Reduction

Stark & Stark — Tue, 17 Jan 2012 11:30:08 -0500

Thomas B. Lewis, Chair of Stark & Stark’s Employment Litigation Group, was quoted in the January 14, 2012 New York Post article, Bonus (cry) babies taking the money and running. The article discusses a recent trend in Wall Street bankers retiring early amidst fears of skimpy bonus checks this year, and for the foreseeable future.

Mr. Lewis states, “There’s a strong argument that the gravy-train days of Wall Street may never replicate themselves again. It’s going to be very hard to make an embarrassingly large amount of money at a bank that’s a publicly traded company compared to a private-equity fund or a hedge fund.

Stark & Stark Attorney to Moderate and Present Seminar on Building Site Safety Regulations at January NYARM Meeting

Stark & Stark — Tue, 17 Jan 2012 09:46:02 -0500

David J. Byrne, Chair of Stark & Stark's Condominium & Co-Op Law Group, will moderate and present materials related to Site Safety Regulations and New York City’s Condominiums and Co-ops at the January 18, 2012, NYARM Meeting. The presentation will be held in the Ground Floor Library Pavilion at the General Society of Mechanics & Tradesmen, Manhattan.

Mr. Byrne will focus his presentation on the fiduciary duties of condominiums and co-ops as those duties relate to New York City’s site safety regulations. He will also moderate the entire presentation which will include John Chiusano, R.A., NYC Dept. of Buildings, James Fenniman, Bollinger Insurance and Scott Silberman, P.C., SMS Engineering.

New Jersey Trade Secrets Act

Thomas B. Lewis — Thu, 12 Jan 2012 13:52:13 -0500

New Jersey has finally enacted a law allowing civil actions for the misappropriation of trade secrets. The Trade Secrets Act (“The Act”) signed by Governor Christie on January 9, 2012 provides remedies available to the holder of a trade secret that has been acquired by improper means or improperly disclosed.

The Act provides an arsenal of remedies, including compensatory and punitive damages, injunctive relief and attorneys’ fees. The legislation defines a trade secret as information such as a formula, pattern, business data compilation, technique, invention and/or process. New Jersey now joins 46 other states who have enacted a trade secrets statute.

Appellate Court Slows Government's Attempt to Remake New Jersey's Affordable Housing Rules

David J. Byrne — Tue, 10 Jan 2012 13:44:42 -0500

A three-judge appellate court just halted – perhaps only temporarily however - the Christie administration's work to overhaul New Jersey’s rules governing a municipality’s rights and obligations in relation to affordable housing within that municipality. The government’s extinguishment of the Council on Affordable Housing (“COAH”) was not undone. However, the rules created by COAH and/or in relation to COAH were reinstated, pending a full hearing and decision by the appellate court in 2012. The reinstated rules will be administered, until that hearing, by the New Jersey Department of Community Affairs.

The existence of affordable housing-related rules, and how they are administered and/or enforced, is heavily connected with the extent and nature of New Jersey’s residential development.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact David Byrne at 609-895-7365 or by email at dbyrne@stark-stark.com

HDFC Primer

Ashley R. Newman — Tue, 10 Jan 2012 13:41:33 -0500

A Housing Development Fund Company (HDFC) cooperative is a limited equity cooperative incorporated under Article XI of the Private Housing Finance Law. HDFC cooperatives are typically sponsored by an organization called the Urban Homesteading Assistance Board (UHAB). UHAB assists in the process of turning over City-owned buildings to their residents and in creating the cooperative.

These cooperatives are intended for persons of low income. As such, the co-ops have both income rules for people becoming shareholders and caps on the resale prices when shareholders leave. The income rules will vary on a case by case basis, however, in all cases the income cap will not exceed 120% of the "Area Medium Income” when UHAB is the direct sponsor of the co-op.

Roughly, HDFC cooperatives converted prior to 1995, have an income restriction on new shareholders equal to 6 or 7 times the annual maintenance plus utilities. Families with less than 3 dependents use 6 times the annual maintenance plus utilities to determine eligibility of income and families with 3 or more dependents use 7 times the annual maintenance plus utilities for the calculation. HDFC Cooperatives converted after 1995 typically have an income restriction of 120% of Area Median Income as the maximum qualifying amount.

Purchase prices are unique and are personalized to a building based on that building’s renovation scope and the mortgage the building has to pay. In all cases the controlling documents should be consulted to determine the actual income restriction and re-sale policies.

Since the apartments are intended for low income residents, they are often sold at a heavily discounted purchase price. The apartments can be sold for such low amounts because they are often subsidized by housing grants. In the event, the apartment within the HDFC co-op is sold to someone who exceeds the income restrictions, the seller will have to pay back the housing grant that subsidized the apartment, ultimately resulting in no profit to the seller.

Due to all of the restrictions and rules governing the re-sale and purchase of HDFC apartments, Boards and sellers should contact their attorneys for guidance during this process.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact Ashley Newman at 212-279-9090 or by email at anewman@stark-stark.com

Pennsylvania House Bill 1582 and its Effect on Condominium Associations

Ellen M. Goodman — Tue, 10 Jan 2012 13:38:48 -0500

House Bill 1582 was introduced on May 24, 2011 and provides the Business Improvement Districts (BID) the option of adopting an alternative method of billing residential units within a condominium association. Currently BIDs assess a fee on every property based upon the tax assessed value of the property. Each individual condo owner then receives a bill for their property assessment and pays the assessment directly to BID.

The new Bill would allow the BIDs to value the condominium building in full and then send the bill with the assessed value to the condominium association. The association would be responsible for billing each condominium owner based on their proportionate share of the condominium and this additional expense would be added into the common expenses.

A problem with the proposed alternative way for BID to bill the condominiums is that if an association has delinquent owners, the association would still be responsible for paying BID in full and all the other owners in the association would have the burden of paying the fee for the delinquent owners. This would cause an additional financial burden on many unit owners in an already difficult financial time.

Another negative with the alternative was of billing by BID is that originally each unit was assessed individually based on the tax assessed value of the unit. Following the alternative method, all of the units are lumped together as the building and assessed as one large property. It is then up to the association for dividing up the amount per the proportionate share of ownership which means some unit owners may be paying more than if based on their tax assessed value.

As proposed, this new legislation will not be beneficial to condominium associations and in the long run will become a liability.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact Ellen Goodman at 609-219-7448 or by email at egoodman@stark-stark.com

Condominiums With Window Wall Systems Face Potentially Huge Repair Bills

Mark M. Wiechnik — Tue, 10 Jan 2012 13:31:12 -0500

The sunlight and the scenic views are often times what draw people to buy a condominium and co-op unit with floor to ceiling windows. However, many of those owners and their Associations soon come to regret that decision. Floor to ceiling walls made of glass are generally referred to as "window wall systems". Typically, the system is built on site by a contractor who assembles pre-cut pieces of metal and glass on site. Unfortunately, although they provide spectacular views and a sense of openness, too often the systems are plagued by major problems. These problems include insulation failures, water intrusion, and air leaks causing higher heating and cooling bills. The cause of these problems can generally be traced back to the contractor's failure to follow the manufacturer's instructions and details. Contractors all too often fail to install proper sealants (caulk), insulation and waterproofing (flashing), which can cause immediate problems for the owners and the Associations that are often time are responsible for replacement of exterior elements such as windows and doors. Furthermore, the glass and metal freeze and thaw at differing temperatures than the surrounding brick, stucco, concrete or siding. As such, small cracks and voids can develop into larger problems much more easily, leading to water and air intrusion and ultimately a complete failure of the system. In New Jersey, New York and Pennsylvania, temperatures range from the 90's in the summer to below 0 in the winter, putting an even larger strain on these systems.

Several experts in the field have opined that these types of window wall systems will generally fail within 5 to 15 years. This is in stark contrast to concrete and steel buildings which have a 50+ year life span. Moreover, buildings with window walls require significant amounts of maintenance to ensure that they function as they should. Even if the system doesn't fail, Associations must hire engineers and other contractors to keep up with the maintenance of these systems. Not surprisingly, these window wall systems are often cheaper and faster to install than a typical concrete or steel wall system. This makes a window wall an enticing choice for a developer looking to maximize their bottom line.

For buildings with window wall systems only on the top most floors, the cost of replacement could be hundreds of thousands of dollars. Buildings comprised entirely of these systems could be facing tens of millions of dollars worth of repairs. For the Board Members of affected Associations, there are generally only two options: special assess the owners for the cost of the repairs, or file a lawsuit against the developer and contractors in an effort to have them pay for the repairs. Stark & Stark has been very successful in recovering from developers and subcontractors the money that their clients need to repair or replace their own window wall systems. Moreover, we can guide the Association through the complicated process of choosing experts, navigating insurance issues and fielding and responding to unit owner complaints which occur in virtually every lawsuit. We have also counseled our clients on how to hire the right experts to ensure that the window wall systems are maintained in an effective, but cost efficient manner.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact Mark Wiechnik at 609-895-7249 or by email at mwiechnik@stark-stark.com

Do Community Associations Have the Authority Needed to Prohibit the Leasing of Units

A. Christopher Florio — Tue, 10 Jan 2012 13:24:32 -0500

A recent Appellate Division case, approved for publication (which means it will have Statewide application and authority) was recently decided regarding the ability of a homeowner association to restrict the leasing of a home. The case, Cape May Harbor Village And Yacht Club Association, Inc. v. Sbraga, et al., while a case of first impression in New Jersey, will probably be limited in scope and applicability throughout the State of New Jersey.

Cape May Harbor And Yacht Club Association, Inc. (the “Yacht Club”) adopted an amendment to its governing documents that prohibited homeowners from leasing their homes to third parties. Deborah Sbraga (“Sbraga”) sued, and at trial, the trial court ruled in favor of the Association and its enforcement of the leasing restriction. Sbraga appealed.

The Yacht Club is a very exclusive enclave consisting of twenty-four single family homes, common areas and a marina. The homes range from $2.5 Million to $2.7 Million. Sbraga and her husband purchased a lot and built a home in 2005; however, because of a divorce the property was placed in Sbraga’s name only in 2007. Subsequent to this, Sbraga, although intending to occupy the home full-time, decided to sell the home.

The documents in its original form allowed the leasing of homes and boat slips. However, the governing documents were amended to prohibit leasing of homes shortly after Sbraga inquired with the Board about her ability to lease her home. The Board President testified that none of the other members ever leased their home and that Sbraga would be the first. As a consequence of Sbraga bringing this issue up, the Association presented before its membership an amendment prohibiting the leasing of homes. The amendment was approved by a vote of 20 in favor and 3 opposed. The meeting minutes reflected that members were concerned with living in a homeowners association where rentals were permitted, the potential of a negative impact on home values, potential problems with renters, parking problems, the lack of responsibility and ownership for noise, and infractions of the Association’s rules and regulations.

While the amendment did not affect the leasing provision of the boat slips, the Board President did testify that previous experience with renters of the boat slips resulted in numerous occasions where the Association had to advise people not to live on their boats, children misbehaving in the marina area and children going onto other boats. The police were called on a couple of occasions due to the inappropriate behavior of the children. The Association used these incidents as evidence that there existed the potential for these types, or more serious types, of problems if homes were allowed to be leased.

The trial judge needed to consider a number of factors, the restrictions under review that were the result of an amendment and not the original governing documents, the restriction occurred after Sbraga bought into the community, that there were no prior restrictions on renting the homes, and that it affects property right. Thus, a determination that the amendment needed to be given less credibility than it might otherwise. Using this more stringent standard, the trial judge did determine that the amendment was a reasonable amendment. The trial judge noted that the community was a small, exclusive community with no history of prior home rentals. The trial judge also found that it was a legitimate concern that having tenants in such a community could impact the neighborhood and its image, and that the members were reasonable in not wanting a “transient” community. The trial judge did concede that the analysis may be different if there were a history of homeowners renting, and/or if the Association were larger and not a small, exclusive community. Thus, the trial judge found in favor of the Association and the amendment.

Although the Appellate Court did agree that the restriction is a significant one and that it does affect the fundamental right to utilize one’s real estate as one sees fit, the Appellate Division needed to go through the various factors to determine whether or not the “alienation” of Sbraga’s right to lease the home was so significant that the Court should overturn the trial judge’s decision to uphold the amendment. The Appellate Division decided that a restraint on the leasing provision accomplishes a worthwhile purpose by preserving the residential nature of the community. Since the nature of the community has never before been affected by rentals, the members of the Association had a reasonable basis to believe that the community would not be disrupted by the leasing of homes. Further, the Appellate Division opined that leasing to homeowners had not occurred in the past and that some of the members did not even know that they were allowed to lease under the Declaration. Because Sbraga only intended to lease the unit for a short time until she was able to sell, the duration of this restraint against her ability to rent would be limited in scope.

Further, the Appellate Division set forth that Sbraga cannot claim that she had a vested right that could never be affected. Since Sbraga conceded that she took title to the property in accordance with the terms of the Declaration, she was presumed to have known that the governing documents could be amended.

The Appellate Division, in its conclusion, opined that the trial judge’s use of the “reasonableness standard” was valid, and that the trial judge found appropriate reasons why the amendment was to be considered to be reasonable and enforceable based upon the facts presented at trial.

While at first glance this case may appear to provide the authority community associations need to prohibit leasing of homes or condominium units, I believe the law of this case will be narrow in its scope. That is, great pains were taken to make specific mention that the outcome may be different if the history of leasing of homes is present, and stating that the size of the community is important. Thus, I believe that a very narrow set of facts needs to be present in order for any leasing restrictions to be upheld.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact Chris Florio at 609-895-7335 or by email at cflorio@stark-stark.com

To Cure, or to Contest: The New York City Department of Buildings and Environmental Control Board Violations

David J. Byrne — Fri, 06 Jan 2012 16:44:25 -0500

An Environmental Control Board (“ECB”) violation is issued by the Department of Buildings when a property does not comply with a part of the New York City Construction Codes and or Zoning Resolution (“ECB Violation(s)”). There are three classes of ECB Violations: Class 1 (Immediately Hazardous), Class 2 (Major) and Class 3 (Lesser).

To resolve an ECB Violation, a building may agree to cure the violation or contest the violation:

Cure the Violation. If you choose to cure the violation, you must admit the violation and certify correction by the “cure” date listed on the Notice of Violation. This will require you to complete an “AEU2: Certificate of Correction” form, provide photographs and receipts to serve as proof of the correction and provide a notarized statement attesting to how the violation is corrected.
Contest the Violation. If you choose to contest the violation, you must appear at a hearing before the ECB. You may bring witnesses or other evidence to substantiate a defense against an ECB Violation. After the hearing, the ECB Administrative Law Judge will make a decision with one of the following outcomes: (a) Dismissal – No Penalty Imposed

If you prevail in contesting your violation, you will not owe any penalties and your violation will be dismissed. However, the Department of Buildings may re-inspect, reissue a violation or appeal the decision; (b) In Violation – Standard Penalty Imposed. If you are found in violation, a penalty will be imposed. You have the right to appeal this decision. The appeal process is conducted entirely in writing, and therefore no further appearances are necessary; (c) Mitigation – Reduced Penalty Imposed For certain violations, if you attend the hearing, admit guilt and demonstrate that the condition has been corrected, the ECB Administrative Law Judge may impose a mitigated (reduced) penalty (½ the standard penalty); (d) Stipulation at Hearing – Standard Penalty Imposed Depending on the violation, you may have the option to enter into a stipulation with the Department during the first hearing. By entering into a stipulation, you admit guilt and agree to correct violating condition within 75 days; (e) Default – Five Times Standard Penalty Imposed

Hence, if guilt is admitted and the ECB Violation is cured, a hearing, as well as any penalties which may result from the hearing will be avoided. If the ECB Violation is contested and a hearing takes places, any one of the foregoing outcomes may occur.

Before deciding whether to cure an ECB Violation or to contest an ECB Violation, one must consider the type and class of ECB Violation because the monetary fines will differ depending on the type and class of ECB Violation . The ECB Penalty Schedule can be found under the ECB section of the website for the City of New York. One must also consider whether a defense can be substantiated at a hearing before the ECB. An ECB Violation should not be contested unless a defense, through witnesses and other credible evidence, can be substantiated at a hearing before the ECB Board.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact David Byrne at 609-895-7365 or by email at dbyrne@stark-stark.com

Can Your Condo Board Prevent You From Keeping Your Dog?

Zain Naqvi — Fri, 06 Jan 2012 16:40:13 -0500

It’s never clear whether your dog, who you consider to be a part of your family, will be able to move in with you when you fully transition into that swanky new condominium building or cooperative in the heart of New York City. Recent years has seen an influx in dog disputes and litigation arising from a condominium or cooperative’s policy on pets. In New York, however, one thing seems to be clear - the Association’s Governing Documents, meaning its Declaration, controls whether your pet will be allowed into your building. This extends even to certain breeds of dogs. It is not uncommon for Condominium or Cooperative Board of Managers to prohibit pets altogether, restrict pets by size, or simply restrict an aggressive breed of dogs.

While Condominium Boards can take some solace in the fact that New York has given them the liberty to enforce the terms of the Associations’ Governing Documents, New York City’s locals laws require a Board to be more aggressive in enforcing the Association’s policies. Two types of laws essentially give an individual tenant, renter or cooperative shareholder the right to keep a pet, even if there is a "no pet" provision in the lease, Declaration, rules, and regulations.

In New York City (Administrative Code of the City of New York Section 27-2009.1) and Westchester County (Laws of Westchester County Section 694), statutes commonly known as the "Pet Law,” give tenants in cooperatives and most condominiums, as well as other types of dwellings, the right to keep a pet, even if there is an applicable "no pet" clause in the Association’s rules and regulations and Governing Documents. The same applies for restrictions to certain types of pets or certain breeds.

Under the "Pet Law", if a landlord or Association fails to enforce the provisions of their restrictive provisions within three months of its knowledge of a Unit Owner’s open and notorious harboring of a pet, then the restrictive provision is deemed null and void. The Association may no longer enforce that particular provision.

Condominium Boards must also be sure to balance their restrictive provisions with applicable federal and state laws against discrimination. Just as a landlord must accommodate a disabled tenant or Unit Owner who requires a wheelchair, a companion animal must similarly be permitted, even if it goes against the Association’s pet policy. The federal Fair Housing Act and the New York City Civil Rights Law require that a housing provider give a "reasonable accommodation" to a disabled individual to use and enjoy his or her home by keeping a medically necessary companion animal. Failure to provide this “reasonable accommodation” in the form of a companion animal could expose the Association to severe penalties including the assessment of fines, compensatory and punitive damages in state or federal court, as well as fines which may be levied by such New York State regulatory agencies.

In sum, a Cooperative or Condominium Board in New York State is free to adopt a pet policy as they see fit, even those restricting and prohibiting certain dog breeds. However, when it comes to New York City and Westchester, Associations must be sure to comply with the “Pet Law” which requires the Association to take action within three months of discovering a Unit Owner has a pet/dog in violation of the Association’s rules. Failure to take action renders that policy void. Furthermore, Associations must always be sure to comply with all Federal and State anti-discrimination laws. Where a companion pet is needed to treat a disability, an Association’s denial of that companion pet could lead to severe consequences.

If you would like to discuss this client alert in more detail or how it may affect your community association, please contact Zain Naqvi at 609-895-7288 or by email at znaqvi@stark-stark.com

Broken Engagements May Give Rise to Money Damages

Corrine Evanochko Cooke — Wed, 04 Jan 2012 14:42:33 -0500

In a recent unpublished trial court decision, a Trial Judge granted a motion for summary judgment requiring a man to reimburse a woman for the non-refundable portions of deposits spent on wedding vendors when the defendant broke off the engagement.

In this particular case, the Defendant proposed to the Plaintiff in July of 2003, and the couple began planning a wedding schedule for September 2004. The Plaintiff entered into contracts with and paid the deposits for several wedding vendors, including the limousine, wedding gown, reception venue, photographer, entertainment, etc.

However, in September of 2003, the Defendant broke of f the engagement. While the Plaintiff was able to recoup a portion of the deposits she paid to the various vendors, she was unable to obtain the full value of all of her deposits. In total, the Plaintiff alleges that she lost a total of approximately $20,500 in non-refundable deposits as a result of the broken engagement.

Thereafter, the Plaintiff and Defendant entered into a written and notarized Agreement wherein the Defendant agreed to reimburse the Plaintiff for the sum of $15,000 toward the amount of the non-refundable deposits within two years of the date of that Agreement. Thereafter, the Plaintiff drafted an Amended Agreement adding another $5,500 to the sum that was to be repaid by the Defendant. However, the Defendant did not sign this Amended Agreement.

When the Defendant failed to make any payments toward the non-refundable portion of the deposits for the wedding vendors, the Plaintiff filed a Motion for Summary Judgment, arguing that there was no issue of material fact that the Defendant owed her a sum of $20,500. The Defendant, of course, opposed this motion, arguing that there existed genuine issues of material facts warranting a Trial insofar as he was forced to sign the original Agreement wherein he agreed to repay the sum of $15,000, the Plaintiff indicated that she and her family would be paying for the entire wedding, and that the additional payments of $5,500 were gifts and not loans.

The Trial Court in granted the Plaintiff's Motion for Summary Judgment with regard to the sum of $15,000 which was the amount of the original written agreement, finding that the Defendant failed to present any evidence that he was forced to sign that agreement. The Trial Court also stated that the Defendant's argument that the plaintiff and her family were to be responsible for the cost of the wedding created no genuine issue of material fact, insofar as such discussions, had they occurred, would have pre-dated the break off of the engagement. Thus, the Court held that the Defendant was responsible for repaying the sum of $15,000 toward the non-refundable portion of the deposits for the wedding vendors.

However, the Trial Judge denied the Plaintiff's motion for Summary Judgment for the additional sum of $5,500, insofar as the Amended Agreement was never signed. The denial of the Motion for Summary Judgment, however, does not mean that the Defendant was not responsible for repaying this sum. Rather, the denial of the Motion for Summary Judgment for the additional sum simply means that there was a genuine issue of fact as to whether or not the Defendant ever agreed to repay this sum requiring a additional discovery, and perhaps, a Trial.

In short, in granting the Motion for Summary Judgment for the amount of $15,000, the Trial Court relied heavily on the fact that there was a written agreement which was signed by both parties and notarized requiring the Defendant to reimburse the Plaintiff that sum. Therefore, it is advisable to consult with an attorney before entering into any written agreement with another party, as it may very well be upheld by a Court.