Kozyra & Hartz, LLC

04/25/2024

06/17/2021

KOZYRA & HARTZ, LLC IS PROUDLY CELEBRATING ITS 20TH ANNIVERSARY!

In 2001 we made a commitment to provide our clients with exceptional legal services without exception. That goal has never been left out of our sight and has allowed us to forge unique relationships with those clients in so many areas of the law. Our attorneys and staff have worked tirelessly to provide an unsurpassed level of service which has been recognized by our clients and many others with whom we interact. To all who have contributed to our success we say thank you for making these first twenty years possible – with our promise to pursue our commitment for many more to come.

06/16/2021

$1.275 MILLION SETTLEMENT OBTAINED BY MICHAEL J. RANKIN

Kozyra & Hartz, LLC congratulates Partner, Michael J. Rankin, in successfully securing a $1.275 million cash settlement for his injured client.

Mike’s client was severely injured when she, friends and family were traveling from New York to New Jersey in a shuttle bus owned and operated by a car service/limousine company. The client was standing on the bus with her back to the emergency window when it suddenly opened causing her to fall backwards out of the window and onto the highway.

The client sustained numerous injuries that included a traumatic brain injury resulting in loss of her taste and smell senses, as well as lower leg and foot fractures, and extensive scarring throughout her body. Emergent surgical interventions were required following the accident as to her head, leg and foot trauma.

Mike vigorously litigated the matter which included successfully opposing defendants’ motions to the trial and appellate courts to bar the testimony of the client’s liability expert.

We at Kozyra & Hartz, LLC are extremely happy for the client. This outcome is just another example of the diligent and hard work put into all our matters here at Kozyra & Hartz, LLC. Great job Mike!

MICHAEL J. RANKIN’S practice focuses on civil litigation, including personal injury matters, estate litigation, commercial and business litigation, real estate and land use litigation, employment litigation, landlord-tenant, and insurance coverage. He also offers transactional services and guidance to his personal and business clients involving estate planning and administration, real estate transactions and general corporate services.

01/29/2021

MIXED MESSAGES WIDESPREAD THROUGHOUT THE NATION’S COURTS REGARDING RESTAURANTS AND BUSINESS INTERRUPTION INSURANCE CLAIMS DUE TO THE COVID-19 PANDEMIC

STELIOS STOUPAKIS reports on rulings that have been creating a growing body of case law on business interruption insurance claims related to COVID-19, specifically in the restaurant industry.

A pair of rulings in early November 2020 brought bad news for several New Jersey restaurants that were shut down during the COVID-19 pandemic and were seeking reimbursement for their losses by insurance. The owners of the Cara Mia restaurant in Millburn were seeking business interruption coverage from Cumberland Mutual Fire Insurance Company, but had their suit dismissed by Senior District Judge Robert Kugler. In similar fashion, Presiding Civil Judge Steven Polansky of Camden County Superior Court dismissed a suit by The Cake Boutique of Mullica Hill seeking business interruption coverage from Selective Fire and Casualty Insurance Company. Both rulings were based on policy language that excluded coverage for losses covered by viruses.

In the Cara Mia case, Judge Kugler said it was not necessary to address the issue of whether or not the insured experienced any direct physical loss or damage to the premises (which would be grounds for business interruption coverage) because the policy included a “virus” exclusion which barred coverage. Similarly, in the Cake Boutique case, Judge Polansky found that a clause in the policy barred coverage in the event of a virus, even if another cause or event contributes to the loss. Judge Polansky stated “it therefore does not matter whether the closure of plaintiff’s business as the result of government orders to prevent the spread of the coronavirus constitutes direct physical damage to covered property … since the reason for the exercise of that civil authority was the virus.”

However, these decisions may not be conclusive for all restaurants’ business interruption insurance claims due to the COVID-19 pandemic. In August 2020, a Bergen County Superior Court judge denied a motion to dismiss a similar complaint after finding the policy language in that case had no virus-related exclusion clause.
On January 15, 2021, a federal court dismissed a Pennsylvania restaurant’s suit seeking business interruption coverage. U.S. District Court Judge William S. Stickman IV ruled that establishments limited to take-out services have not sustained the “direct, physical loss” which triggers business interruption coverage. Judge Stickman further stated that the fact that the insurance policy does not specifically define what constitutes a “direct, physical loss” does not leave the policy term open for argument as ambiguous. The court found that under the “dictionary definitions of those key words,” the restaurant has not suffered a “direct, physical loss,” most specifically because it was still open for take-out business.

However, a recent Ohio federal court decision ruled differently. On January 19, 2021, U.S. District Court Judge Dan Aaron Polster ruled that Zurich American Insurance Company must cover losses due to COVID-19 for more than a dozen restaurants. Judge Polster’s decision found that the business income provision can be understood to extend coverage when a policyholder loses the ability to use its insured premises for the intended purposes. Judge Polster agreed with the Plaintiff’s position that they lost their real property interest when government orders prevented them from using the property for intended purposes (dine-in restaurants). Interestingly, Judge Polster also found that the policy’s virus exclusion did not apply because the losses were not caused specifically by COVID-19; rather they were caused by government shutdown orders.

Courts are struggling to cope with COVID-19 insurance claims involving restaurants and other businesses. Often it is a matter of specific policy language as to whether there is coverage or there is an exclusion, but decisions are also based on interpretations of the law itself or public policy.

It can be expected that COVID-19 claims will continue for many years and will no doubt result in future changes in policy language and the law itself requiring careful scrutiny by business owners and their professionals whenever there is a claim or a need for purchasing insurance.

Please contact Stelios Stoupakis if you have any questions or need assistance in connection with this subject.

Stelios Stoupakis is a graduate of Drew University (B.A. 2001) and St. John’s University School of Law (J.D. 2004).  Mr. Stoupakis was a Staff Member of the St. John’s Law Review.  Mr. Stoupakis started his legal career as an Assistant Prosecutor for the Passaic County Prosecutor’s Office, u...

10/16/2020

NEW JERSEY SUPREME COURT SAVES AN INCOMPLETE ARBITRATION CLAUSE - BEWARE THE NOT SO SAFE HARBOR

BARRY A. KOZYRA reports that the New Jersey Supreme Court has decided that an arbitration clause in a contract which does not contain any direction as to who the arbitrator or arbitration entity will be or how to select that arbitrator and does not explain how the arbitration is to be conducted is still valid.

In Flanzman v. Jenny Craig, Inc., --- N.J.---- (decided September 11, 2020) the Court reviewed an extensive factual history over the question of whether an 82-year-old plaintiff in an employment rights case against her employer was subject to an incomplete but broadly worded arbitration clause in her contract. The arbitration clause did cover a lot of what can be found in such clauses (e.g., waiver of trial by jury, inclusive of tort, contract and statutory claims, decision final and no appeal, prevailing party to be paid counsel fees).

What the clause left out was arbitrator selection. Disagreeing with the Appellate Division (which said “no” to enforcement) the Court stated that the New Jersey Arbitration Act allows a court on application to designate an arbitrator, N.J.S.A. 2A:23B-1(a), if not done by the contracting parties. That court-appointed arbitrator is given broad discretion in how the arbitration will proceed specifically allowing the arbitrator “to conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding." See N.J.S.A. 2A:23B-15(a). The statute addresses the arbitrator's authority as to conferences, evidential determinations, summary disposition of a claim or issue, and hearings. The Flanzman Court supported its decision with references to the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq., citing cases broadly upholding “curing” a negotiated arbitration provision over traditional courtroom litigation.

Mr. Kozyra observes, “The Flanzman decision is hardly surprising given the trend in the law to favor arbitration over litigation - a policy that may be even more favored and sensible facing the uncertainty and challenge of traditional litigation in the face of the COVID-19 Pandemic.”

Mr. Kozyra asks, “Does being told “go forth and arbitrate” end the inquiry? Not really. Who is the arbitrator going to be? How much will the arbitrator charge? Who pays for the arbitrator’s retainer? What kind of discovery - and how much discovery - will be allowed? How fast must the parties (and their counsel if they have one) be ready to start and complete the arbitration? Can the arbitrator issue interim awards of fees and costs prior to a hearing? What about interim awards of partial relief (including damages)?”

Mr. Kozyra feels that while not all of these questions may need to be asked in the Flanzman case or in every case, they are relevant to many arbitrations. Mr. Kozyra believes the best way to avoid uncertainty for the party drafting the arbitration clause (here the employer) is to designate the arbitrator in the clause and how the arbitrator is to be selected (as well as an alternate arbitrator) in addition to providing some outline as to how the arbitration is to be conducted. Mr. Kozyra concludes, “While the responding party may have little negotiation capacity, at least there can be clear ground rules as to who the arbitrator will be and how the arbitration process will be conducted, including the speed of the process.”

For any questions you have concerning this article or the subject of arbitration clauses, please contact Barry A. Kozyra at [email protected] or by calling 973-740-1550.

Mr. Kozyra is a graduate of the University of Chicago (B.A. with Honors in The College and in American History 1975) and Rutgers Law School - Newark (J.D. 1978). He is admitted to the bars in New Jersey and New York, the Second, Third and Ninth Circuit Courts of Appeal and the United States Supreme....

07/28/2020

MOVIE THEATERS FILE COMPLAINT AGAINST THE STATE OF NEW JERSEY DUE TO ONGOING COVID-RELATED CLOSURES

ROBERT B. SPAWN reports on a recent case initiated in the United States District Court for the District of New Jersey.

On July 6, 2020, several major movie theater companies (the “Theaters”), which have been forced to cease business due to the ongoing COVID-19 pandemic, filed suit against the State of New Jersey. In their Complaint, the Theaters allege that the State acted unconstitutionally and unlawfully in allowing certain places of public assembly to reopen while simultaneously requiring that movie theaters remain closed. The Theaters further allege that the continued government-mandated closure of their businesses is a violation of their First Amendment rights of freedom of speech and freedom of expression; a violation of the Equal Protection under the law; a violation of Due Process under the law; and a Taking of property without just compensation.

More specifically, the Theaters cite numerous examples of certain types of businesses that have been allowed to reopen—subject to face covering and social distancing requirements—in June or July of 2020, such as retail stores, indoor shopping malls, places of worship, libraries, aquariums, and museums. Given that these types of public assembly establishments (with seemingly similar risk levels regarding COVID-19) have been allowed to reopen, the Theaters are perplexed as to why their movie businesses have not been allowed to reopen as well. Indeed, the Theaters point out that the State has a legal obligation to treat like entities in a like manner, and not to create arbitrary or irrational distinctions, particularly where First Amendment rights are at stake. The State has yet to serve an Answer to the Theaters’ Complaint.

This case serves as a prime example of the inherent tension between the State’s public health orders regarding the COVID-19 crisis and the ability to operate (and survive) as a business in New Jersey. To be sure, as the pandemic situation persists, more challenges to the government’s restrictions on the ability to conduct business are bound to arise, and this case will likely serve as an early indicator of how local courts will address COVID-related issues.

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.

Ms. Romanova joined Kozyra & Hartz, LLC as an Associate in May 2018 and devotes her practice to family law. She handles a variety of matters involving marital dissolutions, spousal support, equitable distribution of property, post-marital disputes, child custody and support and domestic violence iss...

06/16/2020

THE STATE’S GOOD FAITH OBLIGATION TO PRESERVE EVIDENCE IN ITS CONTROL DURING A CRIMINAL PROSECUTION IS NOT OFFSET WHEN EVIDENCE IS DESTROYED “WITHOUT BAD FAITH”

STELIOS STOUPAKIS reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division, which reversed a Defendant’s conviction because the trial court did not consider the prejudice to the Defendant caused by the destruction of evidence by the arresting police department.

The Appellate Division reasserted the fundamental principle that when evidence has been destroyed, the Court must determine whether the Defendant was prejudiced by the destruction of the evidence. If so, such prejudice outweighs the argument that the evidence had been destroyed “without bad faith.”

Here the Defendant’s wife telephonically obtained a Temporary Restraining Order (“TRO”) pursuant to the Prevention of Domestic Violence Act (“PDVA”), based on an alleged incident that occurred in the home. As required by statute, the alleged victim’s telephonic testimony for the TRO was recorded. Defense counsel requested the electronically-recorded testimony or the judge’s longhand notes (also required by statute). However, consistent with its record retention policy, the recording was destroyed by the police department, and the judge who heard the application for the TRO did not take any longhand notes. The Defendant moved to suppress the evidence obtained from the search, arguing that the search warrant could not be valid without the availability of the phone recording. The motion judge denied the application, and the Defendant pled guilty to a second-degree weapons charge reserving his right to appeal.
The Defendant appealed his conviction to the Appellate Division, arguing that he was entitled to reversal of his conviction because the warrant was invalid, the search was warrantless and suppression of the evidence should have been granted. The Appellate Division agreed with the Defendant’s arguments and reversed judgment and vacated the conviction. The Appellate decision recognizes that although the matter began as a domestic violence case, the State’s obligation arose to preserve evidence once criminal charges were filed against the Defendant. The Appellate Division further noted that “the procedural requirements for a telephonic search warrant are fundamental to the substantive validity of the warrant.” The Appellate Division acknowledged that the trial court did not find any bad faith on the State’s part with respect to the destruction of the recording which supported the search warrant. However, the Appellate Division asserted that the trial judge did not factor in the State’s obligation to preserve evidence in cases that it prosecutes criminally, nor did the trial judge consider the prejudicial effect caused to the Defendant by the destroyed evidence.

Please contact Stelios Stoupakis if you have any questions or need assistance in connection with this subject.

Stelios Stoupakis is a graduate of Drew University (B.A. 2001) and St. John’s University School of Law (J.D. 2004).  Mr. Stoupakis was a Staff Member of the St. John’s Law Review.  Mr. Stoupakis started his legal career as an Assistant Prosecutor for the Passaic County Prosecutor’s Office, u...

06/11/2020

THE MOVING PARTY – A CONVICTED MURDERER SERVING A 40-YEAR SENTENCE FOR KILLING HER CHILDREN’S FATHER - MUST SHOW CHANGED CIRCUMSTANCES TO MODIFY ORDERS THAT ESTABLISH CUSTODY AND PARENTING RIGHTS

RONALD J. HERMAN reports on a recent New Jersey Case, in which the Plaintiff-mother is currently serving a forty-year sentence for the 2010 murder of her two children’s father. The children, who were seven years old at the time of the murder, heard gunshots in their house and entered their father’s bedroom to see him dying.

Following the murder, the children were placed with the Defendant, the children’s paternal grandmother. A trial ensued regarding the custody of the children. During the proceedings, the court ordered an evaluation of the children by a psychologist who was jointly selected by the parties. At the evaluation, the children expressed no desire to see their mother. Furthermore, the children had been undergoing therapy for the trauma they incurred from the murder. Consequently, an expert concluded that visitation between the children and their mother would be harmful for the children. After considering the testimony and evidence from both parties, the trial court awarded the Defendant custody and guardianship of the children.

Four years later, the Plaintiff-mother filed an additional motion seeking an evaluation of the children. The trial judge denied the motion without a hearing because the Plaintiff did not show any changed circumstances to justify another evaluation. The Plaintiff-mother appealed the trial court’s decision.

The Appellate Division agreed with the trial court and indicated that the Plaintiff-mother’s request for the appointment of an expert must be viewed in light of the well-established standard for modifying orders that establish custody and parenting rights. Custody orders are subject to revision based on the changed circumstances standard. First, a party must show a change of circumstances warranting modification of custodial agreements. If the party makes that showing, the party is entitled to a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by modification of the existing custody order.

In affirming the trial court’s decision, the Appellate Court found that the Plaintiff-mother alleged no facts suggesting a change in circumstances warranting modification of the current custody arrangement. Query: what facts would ever be available to the Plaintiff mother serving a 40-year prison sentence? Her request for the appointment of another expert to examine the children was only based on her dissatisfaction with the court’s prior order.

Should you have any questions concerning your parenting time, custody or other family law rights, please contact Ronald J. Herman, Esq.

Ronald J. Herman graduated from the State University of New York at Albany (B.A., summa cm laude, 2015) and received his law degree from Seton Hall University School of Law (J.D., 2018). While in law school, Mr. Herman interned for the Bergen County Prosecutor’s Office and was President of the Je...

04/16/2020

VIRTUAL NOTARIZATIONS

Barry Kozyra and Michael Rankin report that New Jersey has now legalized Virtual Notarization of certain legal documents during the public health emergency under the Governor’s Executive Order 103.

The law allows for remote signatures to be applied and notarized as to Wills, Codicils, Deeds, Mortgages and other legal instruments. There are strict legal requirements to be followed as to preserving a record of the signing of the document and preparation of the documents.

Mr. Kozyra said, “This is welcome relief for our many clients who need to proceed with important legal affairs during this unprecedented crisis and cannot travel to or meet with counsel or others. It does so with safeguards to prevent fraud or other mischief in the ex*****on of personal and business documents.”

Mr. Rankin said, “During this public health crisis, I’ve received a number of telephone calls from clients seeking the preparation of estate documents with a request and/or inquiry as to whether the documents can be completed remotely. This new law assists our clients who are dealing with emergent health issues and need for example the preparation of a Will or Living Will.”

If you have a need to have documents covered by the law prepared and executed during or after the public health emergency under the Governor’s Executive Order 103, please contact Barry Kozyra or Michael Rankin.

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https://kozyrahartz.herokuapp.com/attorney/michael-rankin/9

Mr. Kozyra is a graduate of the University of Chicago (B.A. with Honors in The College and in American History 1975) and Rutgers Law School - Newark (J.D. 1978). He is admitted to the bars in New Jersey and New York, the Second, Third and Ninth Circuit Courts of Appeal and the United States Supreme....