The Best Lawyers in America® recognized two Margolis Edelstein partners
as “Lawyers of the Year” in its 2022 edition.
The honorees include:
Berkeley Heights, NJ
Emery J. Mishky – Insurance Law
Christopher A. Tinari – Litigation – Labor & Employment
In 1989, the New Jersey legislature enacted statutory immunity, under certain circumstances, to “qualified common interest communities,” or residential communities comprised of at least four units wherein owners are obliged to contribute to maintenance, improvements, and insurances . See, N.J.S.A. 2A:62A-12 et seq.
Section N.J.S.A. 2A:62A-13(a) declares that whenever a qualifying condominium’s governing bylaws for the association so direct: “the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified common interest community.” As no such provision can be inserted into an association’s bylaws until more than 75% of the units are owned by individuals (i.e., not the developer), the benefits of the statute are implemented by amendment to the bylaws, with prerequisite that the amendment memorializing immunity must be approved by affirmative vote of at least two-thirds of the units held by unit owners.
The New Jersey Supreme Court expressly recognized that “the Legislature was mindful that some associations have had lawsuits filed against them by unit owners whom have sustained injury on common property and, as a direct result, the association may face difficulty either obtaining insurance coverage or maintaining a manageable premium, and therefore, the “statute was intended to ‘permit the members of the association to agree to eliminate this type of suit.’” Qian v. Toll Brothers, Inc..1 The immunity granted is not unlimited. In practical effect, and as recognized by the Appellate Division, qualified common interest communities adopting the statutory immunity are immunized from claims of ordinary negligence, but not for any liability associated with wilful, wanton or grossly negligent conduct.
Whenever a personal injury suit is brought by a unit owner in a qualified common interest community with immunity in place, New Jersey Courts are to engage in a case-by-case, fact-specific evaluation of the record, and if the facts could support a finding that rises no higher than a finding of ordinary negligence, the homeowner’s association is immunized and summary judgment dismissal is warranted. In other words, unit owners cannot, and are not permitted to, circumvent the clear intent of the Legislature simply by including allegations of gross negligence. See, Fernicola2; Costa3; Carmona4;Basile5.
In 2016, the New Jersey Supreme Court formally defined gross negligence as the absence of, or failure to, exercise even the slightest care or diligence, creating an unreasonable risk of reasonably foreseeable harm.6 Inattention, mistaken judgment, or failure of the association defendant to exercise ordinary or reasonable care clearly will never suffice.7 While the Fernicola; Costa; Carmona; and Basile cases demonstrate the Appellate Division’s leanings on this topic, with a definition of gross negligence now in place, the opportunity to successfully dismiss a claim by a unit owner for injury in the common elements of a Condominium whose association has adopted N.J.S.A. 2A:62A-12 et seq., should be enhanced. Whenever a claimant fails to present a factual record indicating complete inaction or utter disregard for consequences which may follow, the association is immunized. There must genuinely be a record that can actually reasonably support a gross negligence finding for a claim to withstand summary judgment dismissal.
In our experience it is common in New Jersey for a condominium association to retain a property manager to assist the association’s board to exercise its responsibilities under the Condominium Act and its written bylaws. The duties assigned to the property manager, and whether the association retains a level of authority and control over the property manager, are vital inquiries whenever a property manager is named a defendant in a suit by a unit owner injured in a common area with qualified common interest immunity. “The concept of agency posits a consensual relationship in which one person, to one degree or another or respect or another, acts as a representative of or otherwise acts on behalf of another person with power to affect the legal rights and duties of the other person.”8 An agency relationship is established when one party consents to have another act on its behalf, with the principal retaining the right to provide instruction, issue direction, or exercise approval over the acts of its agent.9 The law in New Jersey is clear: “In situations where the principal owes no duty or less than the normal duty of care to the person harmed, the agent likewise has either no duty or a diminished duty to that third party even ‘for actions that otherwise would constitute a tort.”10. Therefore, when a traditional agency relationship can be established, barring exceptional factual circumstances, the property managing agent of a condominium association immunized from an ordinary negligence claim pursuant to N.J.S.A. 2A:62A-13 shall also claim immunity, as the agent’s duty can rise no higher than that of its principal.
Our Northern New Jersey colleagues, Emery Mishky and Victoria Adornetto, successfully presented a Motion to Dismiss which, pursuant to NJ court rules, converted into a Motion of Summary Judgement. The Court agreed with our position, despite plaintiffs’ opposition under the facts, and demand to take discovery against our client, granting the Motion. This strategy brought this matter to successful early conclusion without the need to appear and participate in formal discovery resulting in a savings of thousands of dollars. The client claims professional responded to the news: “What a nice surprise, very nicely done!” and “Thanks for the great job getting this matter dismissed for us!”
Berkeley Heights Partner Emery Mishky, and Associate Victoria Adornetto, successfully defended a tavern against allegations by a responding police officer. The plaintiff claimed that during the struggle that ensued during the arrest of a grossly intoxicated patron, who had been served alcoholic beverages by the tavern (and claimed to have ingested crystal meth in the tavern’s bathroom that had been purchased from another tavern patron), he was repeatedly kicked in the head and chest. He unsuccessfully attempted to return to work the following day, and for the approximately five years prior to the verdict he had not worked. His physicians opined that the 32 year old at the time of the incident was completely and permanently disabled from work as a result of the incident. His economic expert placed over $1.3 million in past and future lost wages before the jury, not including any award for medical expenses, and/or pain and suffering. After deliberating approximately 4½ hours over two days the jury returned a verdict in favor of the defense – resulting in a “no cause” verdict.
Congratulations to Emery J. Mishky, Esq., a partner in our northern New Jersey location, who successfully concluded a two week jury trial on behalf of our tavern owner client. The tavern is alleged to have served the 20-year-old defendant driver, and 20-year-old decedent plaintiff while minors; a subsequent collision resulted in the death of the minor passenger.
Plaintiffs demanded $1M from our client; an offer of $500,000 was extended through trial and the jury returned a verdict of $248,500 against our client.
The plaintiffs Economists projections exceeded $600,000 for the loss of guidance and advice and the value of income. The jury award included $175,000 for conscious pain and suffering prior to death. The plaintiffs have filed motions for additur, and new trial.
Berkeley Heights Partner, Emery Mishky, received a favorable jury verdict following a four-day trial before the Superior Court of New Jersey, Law Division, in Mercer County, New Jersey. The premises liability case against Margolis Edelstein’s client, a retail service station involved personal injury to a 42-year-old plaintiff who claimed that she had slipped and fell due to a three-foot high, nine-foot wide snow mound that had been plowed into a barrier in front of the main front door to a retail store at a travel plaza. The plaintiff suffered a broken elbow, broken ribs, and other injuries, resulting in four elbow surgeries for open reduction and fixation; removal of fixation hardware; removal of loose bodies; and an ulnar nerve decompression; allegedly leaving severe permanent disability and loss of use. Before full medical development and the fourth surgery the case was arbitrated at $200,000. The case was then transferred to Margolis Edelstein for trial. The plaintiff maintained a $350,000 demand through trial. A jury returned a net verdict of $22,000.
Berkeley Heights Partner Emery Mishky received a favorable jury verdict following a six day jury trial before the Superior Court of New Jersey, Law Division, in Morris County, New Jersey. The premises liability case against Margolis Edelstein’s client, a retail supermarket, involved personal injury to a 42 year old plaintiff who presented an independent eyewitness to her fall (and a shopping companion corroborated the fall) on mashed, smeared, and discolored fruit that had been walked through by others – which she argued indicated that the hazard was present for some time. Plaintiff claimed that she sustained lumbar herniation treated by hospitalization, traction, epidural injections, and surgery for an anterior posterior lumbar fusion with permanent plate and pin fixation. She also underwent arthoscopic knee surgery. The plaintiff claimed approximately $270,000 in unpaid medical bills, and that she was disabled.
Plaintiff’s demand at commencement of trial was $1M. Which was lowered to $635K at the commencement of jury deliberations. Plaintiff rejected an arbitration award of $500K (with ½ of the medical expenses presented at that point). Margolis Edelstein’s client placed $200K on the table through trial and jury deliberations. After 3 hours the jury returned with a verdict of: $162.5K
Emery J. Mishky, Esq.
Certified by the Supreme Court
of New Jersey as a Civil Trial Attorney
Three Hundred Connell Drive
Berkeley Heights, NJ 07922-2775