Cartusciello & Kozachek, LLC

Cartusciello & Kozachek, LLC CK Law is a full-service law firm with bench strength in complex and general commercial litigation. He later served as a federal judge in Pennsylvania.

Our practice is situated in the historic Hopkinson House in Bordentown, NJ. Francis Hopkinson (September 21, 1737 – May 9, 1791), was an American author
and was one of the signers of the Declaration of Independence as a delegate from
New Jersey. He played a key role in the design of the first American flag. We are honored to
be working in his home.

01/26/2022

Today’s New Jersey Appellate Division decision in Nixon Med. Apparel & Linen Serv. Specialist v. Health Plus Surgery Ctr., LLC, Appellate Division, Per Curiam, DOCKET NO. A-0290-20 raises an important warning for businesses operating in New Jersey to be very careful with the terms of their business contracts. In this case, summary judgment was granted in favor of the plaintiff by the trial court. The defendant appealed and the appellate division affirmed the trial court’s decision. By way of background, the parties entered a contract under which plaintiff agreed to supply medical linen and apparel to the defendant. The contract term was for three years but would be automatically renewed unless cancelled on 90 days written notice. The contract also contained a liquidated damages provision that would be invoked in the event of termination by the defendant. The defendant asserted that there were quality and service issues and ultimately terminated the agreement. The plaintiff filed suit seeking payment of the liquidated damages as well as payment of all open invoices and won on summary judgment. The plaintiff received both payment of the outstanding invoices as well as the liquidated damages. The appellate division deferred to the trial court's factual findings that defendant terminated the contract only after it had secured better pricing from one of plaintiff's competitors. The court also agreed that defendant could not challenge the reasonableness of the liquidated damages clause after it had agreed to a nearly identical clause in its contract with its new supplier. Thus, despite the problems with the service and quality of the linens, the plaintiff obtained all they sought. Be mindful of the terms of your agreements!

03/12/2019

The Third Circuit Court of Appeals decided a consumer protection case on March 8, 2019 which I found particularly noteworthy. As I have previously noted, many of the consumer protection laws in force at this time, both on a state and federal level, have been used to generate particularly unfair results. Technical violations of a consumer protection law that result in no harm of any kind to a would-be plaintiff, should not give rise to a particularly damaging law suit to otherwise innocent, hard-working and well-meaning business people. Nevertheless, the caselaw is replete with examples of suits where unfair awards have issued because a court was bound by consumer protection laws that have been written to sweep up the good with the bad. In the recent case of Kamal v. J. Crew Group, et. al., however, the United States Court of Appeals for the Third Circuit decided that a purely technical violation of a section of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), 15 U.S.C. § 1681c(g), was insufficient to sustain the plaintiff’s claim because he was unable to alleged he had suffered any damage. The court did opine that the case should be dismissed without prejudice, however, presumably so that the plaintiff could reassert his claim in the event he did sustain damage from the alleged technical violation. The same analysis should always be used in consumer protection claims so that purely technical violations of the many consumer protection statutes and their corresponding regulations do not result in an unfair result. It has often been written that consumer protection laws are designed to operate as a shield to protect consumers from illegal conduct by businesses with an obvious intent to take advantage of consumers. They should not be used as a sword to harm businesses that are just trying to do the right thing. As always, postings such as this are not legal advice and are not designed or intended as such. Legal advice can only be provided in conjunction with specific sets of facts and applicable laws.

12/20/2017

Tomorrow, December 20th and Thursday, December 21st, James Kozachek will be giving part of "a seminar for the National Business Institute at the Princeton Holiday Inn, 100 Independence Way, Princeton, NJ 08540 called the "Ultimate Guide to Expert Witnesses". Mr. Kozachek's part of the seminar will be on Preparing your Expert for Deposition and How to Block the Opposing Expert's Testimony.

10/25/2017

Yesterday, October 24, 2017, the New Jersey Appellate Division issued a decision in Straus Assoc. II v. Berman, upholding a settlement agreement that was arguably not “final”. While the underlying dispute was a contract dispute, most disputes that are resolved by settlement, even if not turned into a final settlement agreement, will be enforced by the New Jersey courts. The public policy in New Jersey provides that as long as the material or essential terms of the settlement are agreed upon and determined, the courts should go out of their way to enforce such settlements. This particular case involved an action for specific performance of a partnership agreement and to compel renewal of a tenant’s lease or, in the alternative, to compel the purchase of corporate interests. This case suggests being particularly mindful of the point at which, despite a lack of signatures and a final formal agreement, a settlement might become enforceable in the courts.

06/30/2017

Yesterday, June 29, 2017, the New Jersey Appellate Division came out with an interesting decision impacting consumer rights. The case of Atlantic Ambulance Corp. v. Cullum began with an ambulance service, Atlantic Ambulance Corp. (Atlantic) filing complaints in the Special Civil Part against two different defendant groups in two different proceedings to collect money for ambulance services. The matters were consolidated and the defendants filed answers and counterclaims, alleging that Atlantic overbilled for ambulance services in violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA). The counterclaims also asserted causes of action against Atlantic for negligence, common law fraud, breach of contract and unjust enrichment. The defendants also sought class certification on behalf of themselves as class representatives and on behalf of all proposed class members who were overcharged for ambulance services during a six-year period. The Appellate Division rejected the class certification (though it did send the case back to the trial court on one small part of the defendants’ counterclaims). What is most curious about this decision is the basis for rejecting the CFA claims asserted by the defendants. It has long been an aspect of the CFA that it does not apply to heavily regulated industries, or “learned professionals”, with the idea being that those industries or learned professionals are already subject to a great deal of regulation so it is duplicative, unnecessary and inappropriate to also subject them to the CFA. The Appellate Division applied the “learned professional” exception to the application of the CFA to the ambulance company thus defeating the defendants’ CFA claims. What is also very curious is that this argument was not used by the trial court as the basis for its decision to deny the class certification. The trial court made that determination based on a different finding. This case might represent a blow to consumer advocates but might also be a positive development for those who might want to try and further expand the “learned professional” exception to the CFA.

05/04/2017

Yesterday, May 3, 2017, the New Jersey Appellate Division issued a decision in Gracioso Balacuit v. Tower National Insurance Company that is worthy of note for all those who may not be absolutely certain about what their insurance covers.

In this case, the plaintiff filed a claim with their insurance company after discovering significant damage to the structure of their home. The insurance company’s engineer's report detailed settlement and cracking throughout the home and concluded the damage resulted from a failed sewer pipe beneath the home. Plaintiff also retained an engineer who inspected the property and agreed the damage came from a faulty sewer pipe. Plaintiff's expert concluded water leaking from the pipe caused soil erosion and consolidation, which caused a movement under the home and resulted in the damage.

Plaintiff's homeowner’s insurance policy contained a provision excluding coverage for "earth movement," which the policy defined as "earth sinking, rising or shifting." The policy also contained a general exclusion, which excluded coverage for damage caused by earth movement "regardless of any other cause or event contributing concurrently or in any sequence to the loss." Based on these policy exclusions, the trial court dismissed the plaintiff’s claim against his insurance company. The Appellate Division agreed.

A homeowner who believed they had coverage for significant damage caused by a leaking sewer pipe ended up without any coverage. This decision should act as a reminder that your insurance policy may not protect you as much as you believe it does and it would be prudent to examine your policy and pay particular attention to all the exclusions.

04/03/2017

Thank you for the recognition and check out all our recommendations on Alignable.

01/25/2017

Neil Cartusciello and James Kozachek gave a seminar this evening on construction liens and construction litigation. Mr. Cartusciello and Mr. Kozachek are frequent lecturers and are available to speak to audiences and corporations on a variety of subjects including litigation avoidance. If your company is interested in an in-house seminar on practices and their legal impacts, please contact us.

11/12/2016

This morning, November 11, 2016, the Appellate Division came out with a curious, though legally supportable decision, in the matter of Diaz v. Nat’l. Retail Transp. Inc. This matter involved an employee who was injured at work when he tried to move a heavy lift which fell over on top of him after he started to move it. His employer defended on the grounds that the employee was legally intoxicated at the time of the accident. Intoxication is a statutory defense to an employee’s action for compensation from his or her employer under N.J.S.A. 34:15-7. The employee retained experts who opined that the accident was not caused by the employee’s intoxication but by the fact that the heavy lift had a flat tire which caused it to fall over when the employee pulled it. The decision turned, not on the language of the statute, but on cases interpreting the statutory intoxication defense which have found that the intoxication must be the exclusive cause of the accident. Because the courts found that the flat tire also contributed to the accident, they ruled that the intoxication defense was not a bar to the employee’s recovery in this matter. The net result of this decision appears to be that employers must now not only be watchful of the work environments to ensure their safety but must also be watchful of their employees’ to ensure that their conditions will not lead them to harm in that work environment.

09/30/2016

Yesterday, September 29, 2016, the New Jersey Appellate Division affirmed a Burlington County trial court decision in the matter of Kelly v. House Inspect and Fidel Esposito. The case involved a claim against a home inspector for negligence. The plaintiff claimed that the defendant home inspector failed to determine and report the significant problems with the roof and the amount that it would cost to completely repair and replace the problem areas. The trial court found in favor of the plaintiff and the Appellate Division upheld the award despite challenges by the defendant on appeal that the trial court was holding him to a higher standard than that which is reflected in New Jersey Administrative Code 13:40-15.16. This part of the New Jersey Administrative Code states that New Jersey Home inspectors are not required to, among other things, “identify concealed conditions and latent defects; determine life expectancy of any system or component”; or “determine the cause of any condition or deficiency”. Moreover, with respect to roofs, the applicable code also states that home inspectors are required to “[e]mploy reasonable, practicable and safe methods to inspect the roof such as: (i.) Walking on the roof; (ii.) Observation from a ladder at roof level; or (iii.) Visual examination with binoculars from ground level." The defendant argued on appeal that the trial judge held them to a higher standard than the applicable code required. Both the trial court and the Appellate Division disagreed and found that the defendant had failed to meet the required standard of care for home inspectors. While this case did not involve a particularly large sum of money, it does suggest that home inspectors are being called to account when their inspection is conducted in what the court perceived to be a comparatively cavalier manner. For those acquiring new homes and retaining home inspectors in connection with that process, as well as for home inspectors in New Jersey, this case is worthy of note.

05/24/2016

Yesterday, May 23, 2016, the New Jersey Appellate Division decision in Fanning v. Twp. of Hillside, provided an important warning about compliance with discovery obligations. In Fanning, the plaintiff, who was not represented by an attorney, filed a complaint against Hillside Township alleging that his business was repeatedly shut down due to unfounded building code violations related to his cooking equipment. The township sent requests for information in connection with the lawsuit, but the plaintiff failed to respond. His failure to respond ultimately lead to the dismissal of his case without prejudice (not a permanent dismissal). At that point the plaintiff could have moved to reinstate his complaint, though that would likely have been conditioned upon his providing the discovery that he had not yet provided. The plaintiff did not do that and so the township moved to dismiss his case permanently (“with prejudice”). The plaintiff sought reconsideration but that application was denied. He then attempted to appeal the decision but the appeal was denied on procedural grounds. This case should serve as an important warning. While the Plaintiff may have had a good case, it was never heard because of certain procedural missteps.

04/12/2016

For those contractors out there engaged in public bidding, you already know how important it is to carefully complete your bid packages. Errors in preparing the bid packages can all too easily result in the loss of the award even if you are the low bidder on the project. A case decided on April 8, 2016, Paul Otto Building Co. v. Kearny Bd. of Educ., reinforces the importance of bid preparation. In this particular case, the lowest bidder failed to include a Disadvantaged Business Enterprise (“DBE”) Goals Statement Form and the DBE Participation Plan and Affirmation Statement with their bid. The court reviewed the bid instructions and governing regulations and found that the DBE forms were required and that the lowest bidder’s failure made defendant bidder’s bid invalid despite the fact that it was ostensibly $900,000.00 lower than the plaintiff’s bid (not factoring in the costs associated with achieving the DBE objectives). The court found that “the DBE documentation, and a bidder’s demonstrated commitment to it, is highly important to the Project, its specifications, and its funding sources.” This case presents another example of how critically important it can be to carefully prepare and review all bid submissions.

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