Peter Espey (Of Counsel-Madison, NJ) and Brianna Cyr (Associate-Madison, NJ) successfully defended their client, a car dealership, in a putative class action.

The plaintiff alleged, on behalf of herself and others similarly situated, that the dealership was overcharging its customers for registration fees. She also brought individual claims related to alleged malfunctions in the vehicle she purchased. The plaintiff had signed an agreement to arbitrate and a waiver of the right to bring a class action when she bought the vehicle. In lieu of an answer, a motion to dismiss was filed.

The plaintiff vigorously opposed the motion.  She argued the arbitration agreement was invalid because it allegedly impaired her statutory rights and precluded her from bringing a class action. Peter and Brianna filed a reply, and Peter argued the motion to dismiss. The Wilson Elser team maintained that the arbitration clause was unambiguous and easily located, rather than buried in the fine print. We also argued that the plaintiff's claims lacked merit, since she was charged the exact amount set by the State.

The Court agreed that the arbitration agreement and class action waiver were enforceable and concurred with Peter and Brianna’s arguments highlighting the strong public policy favoring arbitration. The plaintiff had a duty to read the contract she signed, and the statutes and case law required enforcement of the arbitration clause and class action waiver. The case was dismissed in favor of arbitration. This dismissal also means that the plaintiff cannot pursue her proposed class action.
 

Patrick Fischer (Associate-Madison, NJ) secured a dismissal with prejudice in the U.S. District Court, District of New Jersey, on behalf of Wilson Elser’s client, an insurance broker. In this broker malpractice case, the court found that the entire controversy doctrine barred the plaintiff from bringing this claim because he had an opportunity to object to the settlement agreement in the underlying state action, but chose not to do so. The court further found that although the facts in the instant complaint and the underlying state action are not identical, they are related because our client’s defense would focus on the fact that he did not commit malpractice and/or the settlement figure was reasonable based on the strength of the proofs against it. In a noteworthy development, the court issued its Order and Statement of Reasons with no prior notice and without oral argument, based solely on the strength of Patrick’s written arguments.

Anne M. Dalena (Of Counsel-Madison, NJ) obtained summary judgment in the Superior Court of New Jersey Law Division, Essex County, on behalf of a property owner client. The plaintiff in this personal injury action, a tenant in an apartment building owned by our client, allegedly slipped and fell on ice in the parking lot, sustaining a trimalleolar ankle fracture. After the plaintiff amended the complaint to add the snow removal contractor, Anne tendered the property owner’s defense to the contractor pursuant to the parties’ agreement requiring the contractor to defend, indemnify, and name the property owner as an additional insured. When the contractor failed to respond to the tender despite repeated follow-ups, Anne moved for summary judgment on the property owner’s crossclaims seeking defense, indemnification, and reimbursement of attorneys’ fees and costs. The Court granted Wilson Elser’s motion in full, holding that the contractor was contractually obligated to defend and indemnify the property owner and to reimburse our client for defense fees and costs incurred from the date of tender.

Carol Disla-Roa (Associate-Madison, NJ) secured a Special Civil Part trial win for Wilson Elser’s airline carrier client in the Superior Court of New Jersey, Cumberland County. Through clear and persuasive advocacy, Carol highlighted the deficiencies in the plaintiff’s claims and demonstrated why the complaint could not survive under the applicable legal standards. The court dismissed the plaintiff’s complaint for failure to state a claim upon which relief could be granted. In reading his decision on the record, the judge emphasized that the plaintiff’s claim lacked credibility and that she failed to provide sufficient proofs to establish a prima facie case of negligence or a viable breach of contract claim.

Gregg Tatarka (Partner-White Plains, NY) ​Suna Lee (Of Counsel-Madison, NJ) and Samantha Marrelli (Associate-White Plains, NY) prevailed on a motion to dismiss in Bergen County Superior Court, New Jersey, on behalf of Wilson Elser’s global consumer electronics company client. In this product liability case, the plaintiff, a North Carolina corporation, filed a lawsuit in New Jersey against our client and a national lease-to-own retailer. The plaintiff alleged that its insureds, Missouri residents, sustained damage to their Missouri property from a 2024 fire caused by an allegedly defective product​ supplied by our client and the codefendant retailer.

Although the alleged incident, property damage, insureds, and all fact witnesses – including those involved in the fire investigation and subsequent inspection and repair – were located in Missouri, the plaintiff filed suit in New Jersey, relying primarily on the state being our client’s principal place of business. However, the plaintiff’s causes of action were based in Missouri case law. In lieu of filing an answer, Suna and Samantha moved to dismiss under forum non conveniens, demonstrating that New Jersey had no meaningful connection to the dispute and that Missouri was the appropriate forum.

In their reply to the plaintiff and codefendant’s opposition to the motion, which proved paramount to winning the case by distinguishing between the facts and the claimed case law, Suna and Samantha underscored that the plaintiff is a North Carolina corporation, the plaintiff’s insureds are Missouri residents, and Wilson Elser’s client is a New York corporation with a principal place of business in New Jersey. Additionally, they emphasized the absence of any reported decision, permitting a non-resident plaintiff to pursue out-of-state claims under that state's law, surviving a forum non conveniens challenge.

The court agreed and dismissed the action with prejudice, sparing our client from litigating a Missouri-based loss in an improper forum.

Maxwell Billek (Partner – Madison, NJ) and Melissa Terranova (Associate – Madison, NJ) secured a complete victory in a highly complex legal malpractice action pending in the New Jersey Superior Court, Monmouth County, on behalf of Wilson Elser’s client, a bankruptcy law firm.

The matter involved extensive and significant motion practice in a procedurally intricate case arising out of a prior bankruptcy proceeding. In moving for summary judgment, Max and Melissa advanced multiple independent procedural grounds for dismissal.

First, they established that the individual plaintiff lacked standing to assert legal malpractice claims because he was not the debtor in the underlying bankruptcy matter and therefore suffered no legally cognizable injury. Second, they demonstrated that the corporate plaintiff likewise lacked standing, as any potential claims belonged exclusively to the bankruptcy estate and could only be pursued by the trustee. Finally, they successfully argued that the Superior Court lacked subject matter jurisdiction because the claims arose directly from the administration of the bankruptcy estate and fell within the exclusive jurisdiction of the bankruptcy court.

The court agreed on all grounds - including substantive grounds involving the lack of an attorney-client relationship. It granted summary judgment in favor of Wilson Elser’s client, dismissed all claims with prejudice on both procedural and substantive bases, and denied plaintiffs’ cross-motion for partial summary judgment in its entirety.

This result reflects a decisive and comprehensive defense victory in a sophisticated legal malpractice matter involving standing, bankruptcy-estate ownership of claims, and jurisdictional principles.

Diana M. Hendry (Of Counsel-Madison, NJ) and John P. O'Toole (Partner-Madison, NJ) secured a favorable settlement on behalf of their property owner client in a potentially high-exposure wrongful death action. The client purchased the facility with known roof problems and intended to complete full repairs. However, during the repair process, the plaintiff, an employee of the demolition subcontractor, fell through the decrepit roof to a gruesome death. The decedent’s widow sued the sub-contractor employer, the roofing contractor, the building tenant, and our client. The allegations against the client included failure to disclose the roof's condition accurately and knowingly retaining an inferior contractor to conduct the necessary repairs. Despite facing an aggressive plaintiffs’ firm representing the decedent and his widow, John and Diana conducted early depositions of the parties' representatives, and, before incurring significant expert costs, the client contributed only minimally to the overall settlement. Among the factors that forced the settlement was the deep dive review and discovery of the plaintiff widow’s social media posts, which recounted a troubled relationship with the decedent, undermining the loss-of-services damages alleged in the plaintiff's claim.

Robert Neff (Of Counsel-Madison, NJ) received affirmance from the Appellate Division of Superior Court in New Jersey of a summary judgment awarded to Wilson Elser’s client, a large Housing Authority in New Jersey, in a wrongful death case involving a drive-by shooting resulting in the death of plaintiff’s decedent. The 19-year-old man was at a housing development run by the Authority when four assailants entered the development through the unmanned gatehouse, gunned him down, and sped away. The allegation against the Authority was negligence in failing to provide proper security, particularly with respect to the gatehouse at the only entrance to the development, which was not staffed, and where the security gate had not been operational for many years. The city’s Police Department was a codefendant on an allegation of negligent policing pursuant to the terms of an agreement with the Authority to provide police patrols. Our motion to bar an expert report supporting the plaintiff’s theories of liability as untimely served was granted, and plaintiff’s interlocutory appeal was denied. Robert then moved for summary judgment, arguing that the facts of the case did not support the plaintiff’s theory that security was lax, that the plaintiff could not establish a breach of duty, and that the plaintiff had no expert to support the theory of breach or proximate cause. The Police Department then cross-moved for summary judgment, adopting Robert’s arguments and asserting their own immunity defense. The judge agreed with our position, granting summary judgment to the Authority for lack of a factual basis and for the lack of an expert report to support breach and causation. The court below also agreed with the Police Department’s arguments, and granted its motion as well. The plaintiff then appealed. In a unanimous decision, the Appellate Division affirmed the motion judge’s decision on all grounds. The plaintiff’s settlement demand was $2 million. The authority never made an offer.

Andrew J. Heck (Partner-Madison, NJ), assisted by Mellis Bakir (Associate-Madison, NJ), obtained summary judgment in the Superior Court of New Jersey, Cape May County, for Wilson Elser's client, a manufacturer and developer of durable tools and accessories. The plaintiff suffered water damage to his property when water condensate pumps manufactured by the client allegedly leaked. The co-defendant/third-party plaintiff that installed the allegedly defective pumps filed a Third-Party Complaint against the client, raising allegations of design and manufacturing failures. After engaging in preliminary discovery, it became evident that the third-party plaintiff had “lost” possession of the pumps, after it had conducted an inspection of same, despite the pumps being labeled “not trash.” Andrew and Mellis argued that the third-party plaintiff could not prove a case against the client without the at-issue pumps. Essentially, due to this spoliation, the client no longer had a chance to inspect the pumps and get their own experts to opine as to their condition. They further argued that no photographs or exemplars would suffice to remedy the prejudice, and even if they moved to bar the third-party plaintiff’s experts from testifying at trial based on their inspection of the alleged pumps, it would necessarily lead to the same result that they were now seeking, which was dismissal of the claims against the client. As a result, the court granted Wilson Elser's motion for summary judgment and dismissed all claims against the client with prejudice.

Diana Hendry (Of Counsel-Madison, NJ) and Michelle Press (Partner-Los Angeles, CA) obtained a motion for summary judgment on behalf of an insurance company and broker in a case disputing the cancellation of a homeowners’ policy. The plaintiff homeowner applied through his mortgage broker for a homeowners’ policy, which was issued based on the information provided. Shortly thereafter, the insurer discovered that the information provided by the homeowner was incorrect and timely sent a notice of cancellation to the policyholder by U.S. Mail and email. The home was destroyed by fire many months later; plaintiff’s claim was denied and the plaintiff asserted he had never received notice of the cancellation. In support of their motion for summary judgment, Diana and Michelle submitted a certificate of mailing and the emails, which the Court found sufficient to meet the client’s initial burden of demonstrating that it complied with the cancellation requirements in New York Insurance Law and therefore was entitled to the presumption that notice was received. (The emails bolstered the proof of mailing, but were themselves insufficient to comply with the Insurance Law requirement.) However, the plaintiff’s claim that he did not receive the notice was insufficient to meet his burden to prove that the insurer failed to conform with the strict statutory cancellation requirements. On that basis, the Court dismissed the coverage action against our client.

Kurt Krauss (Partner-Madison, NJ) and Kristine Pegno (Of Counsel-Madison, NJ) defended a property owner in a case involving a claim for injury resulting from a fall on premises owned by the client, who had leased the property under the terms of a triple net lease to the tenant, including a provision that all maintenance and repairs were the responsibility of the tenant. The plaintiff was working on the subject premises as a truck driver at the time of his accident and had already brought a workers’ compensation claim against his employer when he separately sued our client. The initial summary judgment motion was denied based on what the judge found to be an issue of fact regarding whether there was one or more lessees under the master lease agreement. Following additional discovery and several other related motions, the motion for summary judgment was refiled. Based on the fully developed record, Union County Superior Court found that the terms of the lease placed all responsibility for maintenance and repair on the tenant and that, under such circumstances, the property owner owed no duty to the plaintiff as a matter of law. The court separately granted Summary Judgment as to Count II of the Complaint, which was a negligent construction claim, finding that the plaintiff’s admissions in discovery about the location of his fall rendered the claim legally untenable. As such, this was a terrific win for our client!