At a minimum, “trials must be conducted fairly and with courtesy toward the parties, witnesses, counsel, and the court.” Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003). However, “[w]hile a [litigant] is entitled to a fair trial, he is not entitled to a perfect trial.” Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 518 (2011) (quoting State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000)).

Attorneys have broad latitude in making closing statements, but “[s]ummations must be fair and courteous, grounded in the evidence and free from any ‘potential to cause injustice.’” Risko v. Thompson Muller, 206 N.J. 506, 522 (2011) (quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)). Counsel must not say things that would undermine the jury’s deliberations. Id. at 22-23. Indeed, “counsel may argue from the evidence any conclusion which a jury is free to arrive at” so long as the language used does not go beyond the bounds of legitimate argument. Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993). Moreover, “counsel may draw conclusions even if the inferences that the jury are asked to make are improbable, perhaps illogical, erroneous or even absurd.” Ibid.

A “trial court has broad discretion on the conduct of the trial, including the scope of counsel’s summation. The abuse of discretion standard applies to the trial court’s rulings during counsel’s summation.” Litton Indus. Inc. v. IMO Indus. Inc., 200 N.J. 372, 392-93 (2009).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

While a litigant is entitled to a fair trial, he is not entitled to a perfect trial originally appeared on NJ Family Issues on May 2, 2013.

“[A]n assertion is deemed ‘frivolous’ when ‘no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.’” United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div.) (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)), certif. denied, 200 N.J. 367 (2009). Claims for counsel fees against pro se litigants for pursuing frivolous litigation are governed by Rule 1:4-8 because such litigants are regarded as lawyers for purposes of the rule. Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); In re Farnkopf, 363 N.J. Super. 382, 397 (App. Div. 2003).

On appeal, the court considers the imposition of Rule 1:4-8 counsel fee sanctions under the abuse of discretion standard. United Hearts, supra, 407 N.J. Super. at 390 (citing Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). “An ‘abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.’” Id. at 390 (quoting Masone, supra, 382 N.J. Super. at 193).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

An assertion is deemed frivolous when no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable originally appeared on NJ Family Issues on May 2, 2013.

The critical question in every apparent authority case focuses on whether the principal held out the agent such that “a person of ordinary prudence” is justified in presuming that such agent has authority to perform the particular act in question. C.B. Snyder Realty Co. v. Nat’l Newark & Essex Banking Co. of Newark, 14 N.J. 146, 154 (1953).

A party seeking to rely on the theory of apparent authority must establish:

(1) that the appearance of authority has been created by the conduct of the alleged principal and it cannot be established alone and solely by proof of [conduct by] the supposed agent;
(2) that a third party has relied on the agent’s apparent authority to act for a principal; and
(3) that the reliance was reasonable under the circumstances.

[AMB Prop., LP v. Penn Am. Ins. Co., 418 N.J. Super. 441, 454 (App. Div. 2011) (quoting Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 318 (App. Div. 1999)).]

It is well-settled that “the appearance of authority . . . cannot be established alone and solely by proof of [conduct by] the supposed agent.” Mercer, supra, 324 N.J. Super. at 318; see also Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 476 (App. Div. 1997) (“[T]he [agent's] words or acts alone are insufficient to cloak the [agent] with apparent authority.”).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The appearance of authority cannot be established alone and solely by proof of conduct by the supposed agent originally appeared on NJ Family Issues on May 2, 2013.

Under Rule 4:37-2(b), the test for motions for involuntary dismissal is “whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor of the party opposing the motion[.]” Dolson v. Anastasia, 55 N.J. 2, 5 (1969). “[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according [the party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied.” Potente v. Cnty. of Hudson, 187 N.J. 103, 111 (2006) (quoting Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004)). The court’s function on a motion for involuntary dismissal is “quite a mechanical one” as the “court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.” Dolson, supra, 55 N.J. at 5-6.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The test for motions for involuntary dismissal originally appeared on NJ Family Issues on May 2, 2013.

A court may draw a negative inference when a party “does not call [an available] witness that the party reasonably might have been expected to call.” Witter by Witter v. Leo, 269 N.J. Super. 380, 391 (App. Div.), certif. denied, 135 N.J. 469 (1994). Such a witness is considered “available” if the witness could have been produced. Id. at 391-92 (citing State v. Clawans, 38 N.J. 162, 171 (1962)). However, the inference should not be drawn “if the witness is available to both parties[.]” Wild v. Roman, 91 N.J. Super. 410, 414 (App. Div. 1966) (citing Clawans, supra, 38 N.J. at 171).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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A court may draw a negative inference when a party does not call an available witness that the party reasonably might have been expected to call originally appeared on NJ Family Issues on May 2, 2013.

To recover on the basis of unjust enrichment, a party must show that the other party “received a benefit and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994). The party seeking remuneration must show that it expected to be paid “at the time it performed or conferred a benefit on [the other party] and that the failure of remuneration enriched [the other party] beyond its contractual rights.” Ibid.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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To recover on the basis of unjust enrichment, a party must show that the other party received a benefit and that retention of that benefit without payment would be unjust originally appeared on NJ Family Issues on May 2, 2013.

Contracts are typically “given their plain and ordinary meaning.” M.J. Paquet v. N.J. Dept. of Transp., 171 N.J. 378, 396 (2002). Nevertheless, “‘[e]ven when the contract on its face is free from ambiguity, evidence of the situation of the parties and the surrounding circumstances and conditions is admissible in aid of interpretation.’” Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 501 (App. Div. 2001) (quoting Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293, 296 (1953)).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Even when the contract on its face is free from ambiguity, evidence of the situation of the parties and the surrounding circumstances and conditions is admissible in aid of interpretation originally appeared on NJ Family Issues on May 2, 2013.

Dissipation of marital assets is a factor relevant to the distribution of marital assets. N.J.S.A. 2A:34-23.1(i). The first step in equitable distribution is identification of the assets and liabilities acquired during the marriage. Rothman v. Rothman, 65 N.J. 219, 232 (1974); Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986). Generally, assets expended during the marriage are not taken into account. Carlsen v. Carlsen, 72 N.J. 363, 371 (1977). But where one spouse has “dissipated the marital assets, or otherwise disposed of them in fraud of the other,” a court properly imposes a debt on the dissipating “spouse in favor of the other.” Kothari v. Kothari, 255 N.J. Super. 500, 510 (App. Div. 1992). The spouse alleging dissipation has the burden of proof on the issue. See Monte, supra, 212 N.J. Super. at 567-68 (discussing the burden of proof in a case involving division of a debt wife alleged husband incurred as a consequence of intentional dissipation); see alsoKothari, supra, 255 N.J. Super. at 509 (discussing the evidence supporting a finding of dissipation and noting the trial court “was free to disbelieve” the offending party’s uncorroborated explanation of a purpose other than dissipation).

The post-hoc examination of marital spending required where dissipation is alleged implicates competing considerations relevant to the marital partnership. In Kothari the court explained:

“When one party to a divorce proceeding spends marital funds extravagantly, or merely for his or her own benefit, that obviously diminishes the amount of property which is available for distribution by the divorce court. On the other hand, until such time as the parties are contemplating a divorce, they are generally vested with the authority to spend marital funds for their own enjoyment . . . . The question of dissipation of marital assets thus involves an attempt to accommodate these two conflicting interests in the marital estate.”

[255 N.J. Super. at 506-07 (quoting Annotation, Spouse's Dissipation of Marital Assets Prior to the Divorce Court's Determination of Property Division, 41 A.L.R. 4th 416, 419 n.1 (1985)).]

In Kothari, the court held that the balance between these considerations ultimately depends on “whether the assets were expended by one spouse with the intent of diminishing the other spouse’s share of the marital estate.” Id. at 507. And the court identified factors relevant to that question:

(1) the proximity of the expenditure to the parties’ separation,
(2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage,
(3) whether the expenditure benefited the “joint” marital enterprise or was for the benefit of one spouse to the exclusion of the other, and
(4) the need for, and amount of, the expenditure.

[Ibid. (quoting Spouse's Dissipation, supra, 41 A.L.R. at 421).]

The court left open the question whether dissipation could include spending before the parties are considering separation that is for a “purpose[] inimical to the marriage and [done] in association with some form of matrimonial misconduct.” Ibid. Inimical is generally understood to mean “injurious” or “harmful.”

A spouse’s generosity to others — whether it consists of acts of kindness or expenditures on gifts — necessarily implicates the time and resources the spouse has to devote to the marital partnership. But generosity of that sort is not universally viewed as injurious to the marital enterprise. Indeed, such charitable actions are commonly viewed as carrying their own benefit — one not readily quantifiable in dollars and cents. Additionally, the giving of money to a relative is the type of conduct that a spouse disappointed at the end of the marriage may, in hindsight, view differently than he or she did at the time. Accordingly, claims of dissipation based on giving to a spouse’s family pose difficult questions for a judge, and in this circumstance focus on whether the action was taken with the intent to deprive the other of a share of the marital estate is critical.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Dissipation of marital assets is a factor relevant to the distribution of marital assets originally appeared on NJ Family Issues on May 2, 2013.

A plaintiff establishes a prima facie case for disability discrimination by demonstrating: (1) that she qualifies as a disabled individual; (2) that she is qualified to perform the essential duties or functions of the job, with or without reasonable accommodation; and (3) that she has suffered an adverse employment action. Victor v. State, 203 N.J. 383, 411-12 (2010). Compare Zive v. Stanley Roberts, 182 N.J. 436, 450 (2005). Alternatively, she may prove that she was directly affected by “intentional discrimination”, ADP v. Exxon Mobil Research and Engineering, 428 N.J. Super. 518, 531 – 534. In evaluating such claims “a court must consider whether a statement made by a decisionmaker actually bore on the employment decision at issue and communicated proscribed animus”. Id. at 534.

Under the Americans with Disabilities Act (ADA) 42 U.S.C.S. §§12101 to 12213, an employer commits unlawful discrimination if the employer does not reasonably accommodate the known physical or mental limitations of an otherwise qualified disabled employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer. 42 U.S.C.S. §12112(b)(5)(A).

The LAD does not specifically address reasonable accommodation, but New Jersey courts have uniformly held that the law nevertheless requires an employer to reasonably accommodate an employee’s handicap. N.J.S.A. §§10:5-2 to -42. An employer’s duty to accommodate extends only so far as necessary to allow a disabled employee to perform the essential functions of his job. The employer is not obligated to acquiesce to every demand or request by the disabled employee. Jones v. Aluminum Shapes, 339 N.J. Super. 412, 428 (App. Div. 2001). Furthermore, an employer need not accept excessive or chronic absences from work, even if it is a result of the disability. Svarnas v. AT & T Communications, 326 N.J. Super. 59, 63 (App. Div. 1999).

To determine what appropriate accommodation is necessary, it is the employer’s responsibility to initiate an informal interactive process with the employee. Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 400 (App. Div. 2002). This process must identify the potential reasonable accommodations that could be adopted to overcome the limitations resulting from the employee’s disability:

“To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.”

[Taylor v. Phoenixville School District, 184 F.3d 296, 319-320 (1999); Tynan, 351 N.J. Super. at 400-01.]

The LAD provides that it shall be unlawful discrimination “for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.” N.J.S.A. 10:5-12(e). An employee is liable as an aider or abettor upon a showing by plaintiff that: (1) the party whom the defendant aids performed a wrongful act that causes injury; (2) the defendant was aware of his role in the overall wrongful act and provided assistance; and (3) the defendant knowingly and substantially assisted the principal violation. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004). A determination of “substantial assistance” requires a consideration of five factors: “(1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the unlawful conduct, (4) the supervisor’s relations to the others, and (5) the state of mind of the supervisor.” Id.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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Disability discrimination originally appeared on NJ Family Issues on April 29, 2013.

The New Jersey Motor Vehicle Warranty Act (Lemon Law), N.J.S.A. 56:12-29 to -49, premised on the Legislature’s finding that “the purchase of a new motor vehicle is a major, high cost consumer transaction and the inability to correct defects in these vehicles creates a major hardship and an unacceptable economic burden on the consumer[,]” N.J.S.A. 56:12-29, is designed to ease a consumer’s efforts to obtain rectification of defects. See DiVigenze v. Chrysler Corp., 345 N.J. Super. 314, 323 (App. Div. 2001) (describing manufacture’s obligation to rectify), certif. denied, 171 N.J. 442 (2002). The Lemon Law requires new vehicle manufacturers “to correct defects originally covered under warranty which are identified and reported within a specified period[,]” and provides “procedures to expeditiously resolve disputes” between consumers and manufacturers when reported defects “are not corrected within a reasonable time,” by providing “specific remedies where the uncorrected defect substantially impairs the use, value, or safety of the new motor vehicle.” N.J.S.A. 56:12-29.

To effectuate these objectives, the Lemon Law “imposes an affirmative obligation upon the manufacturer of a vehicle to repair substantial defects within a reasonable time[,]” DiVigenze, supra, 345 N.J. Super. at 323, within this frame-work:

If a consumer reports a nonconformity in a motor vehicle to the manufacturer . . . or its dealer or distributor, during the first 24,000 miles of operation or during the period of two years following the date of original delivery to the consumer, whichever is earlier, the manufacturer, . . . shall make, or arrange with its dealer or distributor to make, within a reasonable time, all repairs necessary to correct the nonconformity.

[N.J.S.A. 56:12-31.]

Following the report of a nonconformity to the manufacturer, “[t]he manufacturer then has three attempts or a cumulative total of 20 calendar days, whichever occurs first, to repair the nonconforming vehicle.” Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 254 (2005) (citing N.J.S.A. 56:12-33). “If the manufacturer is unable to repair the vehicle within the statutory timeframe, the consumer is entitled to a full refund of the purchase price of the vehicle in addition to ‘any other charges or fees’ associated with the ownership of the vehicle.” Ibid. (quoting N.J.S.A. 56:12-32). See also N.J.S.A. 56:12-33a(1) (presuming the manufacturer “is unable to repair or correct a nonconformity within a reasonable time if, within the first 24,000 miles of operation or during the period of two years following the date of original delivery . . . [s]ubstantially the same nonconformity has been subject to repair three or more times”). A consumer meets this burden “by producing evidence that the nonconformity ‘continues to exist’ after the specified number of repairs or time out of service.” DiVigenze, supra, 345 N.J. Super. at 324 (quoting N.J.S.A. 56:12-33b).

A “nonconformity” is “a defect or condition which substantially impairs the use, value or safety of a motor vehicle.” N.J.S.A. 56:12-30. Thus, to recover, a plaintiff “must demonstrate that the nonconformity substantially impairs the value” of the vehicle. G.M.A.C. v. Jankowitz, 216 N.J. Super. 311, 333 (App. Div. 1987). “An important factor is whether the nonconformity ‘shakes the buyer’s confidence’ in the goods.” Berrie v. Toyota Motor Sales, U.S.A., Inc., 267 N.J. Super. 152, 157 (App. Div. 1993) (quoting Jankowitz, supra, 216 N.J. Super. at 338). See also DiVigenze, 345 N.J. Super. at 333 (“The mixed subjective/objective test . . . allows the factfinder to consider a consumer’s reasonably shaken confidence in the vehicle as a factor in determining substantial impairment[.]“).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The New Jersey Motor Vehicle Warranty Act (Lemon Law) originally appeared on NJ Family Issues on April 28, 2013.