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October 2016 Archives

Who Bears the Burden on a Statutory Exemption?

Copy-of-Fotolia_26659931_S-768x514.jpgThe United States Court of Appeals for the Third Circuit established standards that court will use in determining whether, under a claim based on a federal statute containing certain exceptions to its requirements, the plaintiff has the burden of proving the exemption does not apply or the defendant has the burden of proving it does. This case arose in the context of a claim under the Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. §1692, et seq., which, among other things, makes a debt collector liable to a consumer for contacting third parties in an effort to collect the consumer's debt-except in certain specified circumstances. The exception relevant here is where the contact is "for the purposes of acquiring location information about the consumer." Even then, however, the FDCPA prohibits more than one contact "unless the debt collector reasonably believes the earlier response of such third person is erroneous or incomplete and that such person now has correct or complete location information." 15 U.S.C. §1692b. A violation of the statute subjects the debt collector to statutory as well as actual damages.

Shakespeare in the Classroom

meet-hermann2.jpgWhen he's not practicing law, Cohn Lifland Managing Partner Jeffrey Herrmann is an adjunct professor at Kean University, teaching a survey course on Shakespeare to undergraduates. The Columbia University graduate had an inspiring and memorable professor who instilled in him a passion for Shakespeare. "Most courses you forget a minute after the class ends. If you're lucky, a handful stick," says Herrmann, "For me, it was Shakespeare." While attending Columbia Law School, he cut law school clases to audit Shakespeare on the other side of Amsterdam Avenue.

What You Need to Know About Pleading Out a Traffic Ticket

lawyer-2.jpgRecently, the Supreme Court reviewed the circumstances under which a defendant can obtain a civil reservation in municipal court. Commonly, a civil reservation is requested by a defendant entering a guilty plea in a municipal traffic matter so that the plea will be sealed from use in any related civil action such as a personal injury lawsuit. A civil reservation Order prevents a plaintiff from using the defendant's guilty plea to help establish liability in a resulting civil action. In a case where liability is questionable, the Order is especially important.

Two for the Price of One

Copy-of-Fotolia_80752093_L-768x512.jpgYou could call it bad luck. You could call it being in the wrong place at the wrong time twice. Whatever you call it, if you are injured in two distinct accidents, you may be able to consolidate two lawsuits against separate defendants into one lawsuit despite a significant time gap.

Supreme Court Clarifies Definition of a Building in Anti-Eviction Act

lawyer-2.jpgThe Anti Eviction Act permits "owners of a building with three residential units or less to evict a tenant if the owner intends to personally occupy the unit." N.J.S.A. 2A:18-61.1(l)(3). Ms. Cashin owns a six-unit apartment building and a separate two-story single-family home. Both buildings are located on the same piece of land in Hoboken and are included in one tax bill, but have separate mailing addresses. In the 1960's, Ms. Cashin's late husband, a professional engineer, converted a garage into the single-family home with the proper permits from the City of Hoboken. Ms. Bello rented the single family home in 1973 and presently pays $345 per month in rent to reside there. Ms. Cashin sent Ms. Bello a "notice to quit," providing Ms. Bello with 60 days to move out of the home because Ms. Cashin wished to personally occupy the home. When the 60 days lapsed, Ms. Bello failed to move out. Ms. Cashin filed an eviction complaint seeking possession of the building.

Sidewalk Liability Law: Who Has the Duty to Clear Ice and Snow?

Fotolia_52956667_M-768x503.jpgOn August 12, 2015, the issue of whether the homeowners association and management company of a common-interest community had the duty to clear snow and ice from the community's prviate sidewalk was decided by the Supreme Court of New Jersey in the case of Cuiyun Qian v. Toll Brothers, Inc., 2015 WL 4743054. In Qian, the Supreme Court reversed the lower courts' reliance and application fo Luchejko v. City of Hoboken, 207 N.J. 191 (2011), which held that the condominium association and the management company were immune from suit for allegedly failing to clear ice from the public sidewalk. In Qian, the Supreme Court held that the immunity of a property owner from personal injury claims on a public sidewalk addressed in Luchejko did not apply to the homeowners association and the management company of the common-interest community. The sidewalk on which the plaintiff was injured was a private sidewalk as it was part of the common area, which was owned and maintained by the homeowners association in accordance with the association's by-laws and statutory obligations.

Police Reports Play an Important Role in Auto Accident Cases

Copy-of-Fotolia_84476170_XS.jpgMake sure there is a police report for your car accident. A police report provides important information about your case, such as the date and location of the accident, a description of the accident, the persons and vehicles involved, the names of potential witnesses, the weather conditions and other circumstances of the accident. It can be exceptionally helpful or harmful in your personal injury action. If you disagree with the substance of the facts in the report, you should attempt to have the report amended by contacting the police department that issued the report.

Mediation Not Enforceable When There's FRO

Fotolia_79361597_M-768x513.jpgAlthough Rule 1:40-5 precludes mediation of certain issues when a Final Restraining Order ("FRO") is in place, they do not address the situation where a preexisting Property Settlement Agreement ("PSA") requires mediation. In O.P. v. L.G-P, the Appellate Division explains why the provisions of the preexisting PSA requiring mediation and parental communication should not be enforced after an FRO prohibiting contact between the parties is entered. In that case, the parties agreed to extensive communication about their child and to mediate if they were unable to resolve future disputes. Post-judgment litigation started only a few months after the divorce, including the entry of a FRO. L.G-P filed a motion to enforce the child support provisions of the parties' PSA. She also sought to eliminate the mediation requirement in the parties' PSA. At oral argument, the trial court ordered O.P. to pay the bills he conceded he owed. When L.G-P protested that mediation did not work and that the agreement addressed O.P.'s obligations, the court responded by asking how O.P. could provide proof of expenses with an FRO in place. L.G-P suggested an attorney forward her the documents or a police officer give them to her during parenting-time transfers. The court rejected L.G-P's suggestions and told her to mediate any disputes.

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