NJ Family Issues Information and Opinions 2017-09-13T14:06:50Z http://www.kostrolaw.com/NJFamilyIssues/feed/atom/ WordPress PaulKostro <![CDATA[A contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30650 2017-09-13T14:06:50Z 2017-09-13T14:06:50Z ]]>
Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

Under the law of New Jersey, “a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms.” Mantilla v. NC Mall Associates, 167 N.J. 262, 272-73 (2001) (quoting Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 191 (1986)). Following this precedent, the court in Azurak v. Corporate Property Investors, 347 N.J. Super. 516 (App. Div. 2002), concluded that “the absence of the requisite clear and explicit language addressing indemnification for the [indemnitee’s] negligence precludes recovery for its portion of the judgment for defense costs.” 347 N.J. Super. 516, 523 (App. Div. 2002). “Any doubts or ambiguities as to the scope of the exculpatory language must be resolved against the drafter of the agreement and in favor of affording legal relief.” Gershon, Adm’x Ad Prosequendum for Estate of Pietroluongo, supra, 368 N.J. Super. at 247 (citation omitted).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

A contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms originally appeared on NJ Family Issues on September 13, 2017.

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PaulKostro <![CDATA[Because an exculpatory clause operates to relinquish one party from a legal right, while relieving the other party of owing a duty of reasonable care, an exculpatory release agreement must, on its face, reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30648 2017-09-13T14:05:05Z 2017-09-13T14:05:05Z ]]>
Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

Because an exculpatory clause operates to relinquish one party from a legal right, while relieving the other party of owing a duty of reasonable care, “an exculpatory release agreement must, on its face, reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences.” Gershon, Adm’x Ad Prosequendum for Estate of Pietroluongo v. Regency Diving Center, Inc., 368 N.J. Super. 237, 247 (App. Div. 2004) (citations omitted). Generally, exculpatory clauses are disfavored and often receive close judicial scrutiny. Stelluti v. Casapenn Enters, LLC, 203 N.J. 286, 303 (2010). Examples of such contractual provisions include the following: “forfeitures, penalties, provisions limiting a party’s legal rights, and provisions that depend for their validity or enforceability on the subjective judgment of one of the parties.” Id. (citation omitted). New Jersey courts will enforce an exculpatory release if:

(1) it does not adversely affect the public interest;
(2) the exculpated party is not under a legal duty to perform;
(3) it does not involve a public utility or common carrier; or
(4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Gershon, Adm’x Ad Prosequendum for Estate of Pietroluongo v. Regency Diving Center, Inc., 368 N.J. Super. at 248 (citation omitted).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Because an exculpatory clause operates to relinquish one party from a legal right, while relieving the other party of owing a duty of reasonable care, an exculpatory release agreement must, on its face, reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences originally appeared on NJ Family Issues on September 13, 2017.

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PaulKostro <![CDATA[Generally, it is improper to grant summary judgment when a party’s state of mind, intent, motive or credibility is in issue]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30646 2017-09-13T14:02:48Z 2017-09-13T14:02:48Z ]]>
Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

Generally, it is “improper to grant summary judgment when a party’s state of mind, intent, motive or credibility is in issue.” In re Estate of DeFrank, 433 N.J. Super. 258, 266 (App. Div. 2013) (citation omitted). For example, New Jersey courts have concluded that granting summary judgment is improper when the genuine issues of fact remaining in the case relate to a party’s waiver, whether a party acted in bad faith, and willful acts of fraud. Id. at 266-67 (citations omitted).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Generally, it is improper to grant summary judgment when a party’s state of mind, intent, motive or credibility is in issue originally appeared on NJ Family Issues on September 13, 2017.

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PaulKostro <![CDATA[Waiver must be done voluntarily and there must be an affirmative act that accompanies the waiver to show such intent]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30644 2017-09-13T13:57:01Z 2017-09-13T13:57:01Z ]]>
Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

Waiver is defined as “the intentional relinquishment of a known right.” Cty. of Morris v. Fauver, 153 N.J. 80, 104 (1998) (citations omitted). Thus, waiver must be done voluntarily and there must be an affirmative act that accompanies the waiver to show such intent. Id. (citation omitted). Waiver is “a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded and insisted on.” Allstate Ins. Co. v. Howard Sav. Institution, 127 N.J. Super. 479 (Ch. Div. 1974) (citation and internal quotation omitted). “A waiver cannot be divined but, instead, must be the product of objective proofs: the intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference.” Sroczynski v. Milek, 197 N.J. 36, 63-64 (2008) (internal citations and quotations omitted).

Additionally, waiver of a right “must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.” Aron v. Rialto Realty, 100 N.J. Eq. 513 (Ch. 1927), aff’d, 102 N.J. Eq. 331 (E&A 1928).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Waiver must be done voluntarily and there must be an affirmative act that accompanies the waiver to show such intent originally appeared on NJ Family Issues on September 13, 2017.

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PaulKostro <![CDATA[Claims against architects and others involved in the design and construction of building projects generally accrue upon substantial completion of the project]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30642 2017-09-13T13:55:00Z 2017-09-13T13:55:00Z ]]>
Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

A party’s claims against architects and others involved in the design and construction of building projects generally accrue upon “substantial completion” of the project. However, that general rule remains subject to equitable principles, such as the discovery rule. If applicable, the discovery rule mandates that Plaintiff’s tort and contract claims would not accrue until Plaintiff discovers “… or by an exercise of reasonable diligence and intelligence should have discovered that [it] may have a basis for an actionable claim.” See Lopez v. Swyer, 62 N.J. 267, 272 (1973).

Simply because the discovery rule may be applicable to a claim does not translate into an automatic tolling of the applicable limitation period. Rather, a party seeking to invoke the equitable doctrine of the discovery rule has the burden of proof to establish that it is entitled to the benefit of the rule. In this regard, the Court concludes that the motion record establishes a genuine and material factual question regarding the date of accrual of Plaintiff’s claims and, consistent with Lopez, supra, 62 N.J. 267, the Court shall conduct a plenary hearing to determine when Plaintiff discovered, or should have discovered, it had an actionable claim.

Further, a party who successfully invokes the discovery rule, and who therefore seeks a tolling of the applicable statute of limitations, is ordinarily afforded the entire limitation period after accrual. At a Lopez hearing, the Court should also address whether equity supports deviation from that general rule. See Fox v. Passaic Gen. Hosp., 71 N.J. 122, 126 (1976).

The statute of limitations applicable to claims for tortious injury to real or personal property is six years and is set forth in N.J.S.A. § 2A:14-1:

[E]very action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued.

N.J.S.A. §2A:14-1.

Because the statute does not define when a cause of action accrues, the definition of accrual has been left to judicial interpretation. Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968). Traditionally, the accrual of a cause of action occurs on the date when “‘the right to institute and maintain a suit first arises.’” Russo Farms, Inc. v. Vineland Bd. of Ed., 144 N.J. 84, 98 (1996) (citing Rosenau, supra 57 N.J. at 137; quoting Fredericks v. Town of Dover, 125 N.J.L. 288, 291 (E. & A. 1940)). The time at which this right arises “refers to the combination of facts or events which permit maintenance of a lawsuit; the time of occurrence of the last of these requisite facts is thereby made the critical point of inquiry.” Id. (citation and internal quotation omitted).

In the context of construction cases, courts have held that such claims generally accrue, and the statute of limitations triggered, at the time that the project is substantially complete. Russo Farms, Inc. v. Vineland Bd. of Ed., 144 N.J. 84, 92-93 (1996). As stated by the Supreme Court in Russo, the term “substantial completion” has a precise meaning within the construction industry. Id. at 117 (citation omitted). Generally, the term is defined as:

the date when construction is sufficiently complete . . . so the owner can occupy or utilize the building. Substantial completion occurs when the architect certifies such to the owner and a certificate of occupancy is issued attesting to the building’s fitness. At that point, the building is inhabitable, and only touch-up items and disputed items, the ‘punch list,’ remain. The punch list is a final list of small items requiring completion, or finishing, corrective or remedial work.

Ibid. (internal quotations and citations omitted).

When assessing whether a particular project is substantially completed, “the issue is not whether the construction has defects but whether a certificate of occupancy has been issued such that the property can be used for its intended purpose.” Trinity Church v. Lawson-Bell, 394 N.J. Super 159, 176 (App. Div. 2007).

It should be noted that in addition to the statute of limitations, construction claims are also subject to the statute of repose, see N.J.S.A. 2A:14-1.1, after which a potential cause of action extinguishes. Trinity Church, supra, 394 N.J. Super. at 175. N.J.S.A. 2A:14-1.1 was enacted with the purpose of “protect[ing] architects and other construction professionals from the potential ‘liability for life’ posed by the discovery rule.” Id. at 176. “The substantial completion clause insulates architects and other construction professionals from the operation of the discovery rule during the four-year gap between the statutes[,]” thereby precluding application of the discovery rule to the statute of repose. Id. at 175-76. With these principles in mind, the Russo court rejected the argument that accrual in construction cases for statute of limitations purposes did not commence until the final “punch list item” was completed, concluding that:

if liability were to be measured from the date the last retainage is released and all disputed and punch list items are completed, a contractor’s exposure to suit might be prolonged unreasonably. Disputes over workmanship and compensation for services can continue for years. Under the Appellate Division’s analysis, a contractor would remain liable and the commencement of the statute of repose could be delayed indefinitely. Such a result is inconsistent with the statutory purpose to provide repose and allow contractors and architects to walk away from liability at a certain point in time; indeed, it would, all too often, provide ‘liability for life.’

Russo Farms, Inc., supra, 144 N.J. at 117-18.

The discovery rule is an equitable doctrine and provides that “in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Lopez v. Swyer, 62 N.J. 267, 272 (1973). The rule was developed to mitigate “the often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law.” Id. at 273-74.

As stated in Villalobos v. Fava, 342 N.J. Super. 38, 45-46 (App. Div. 2001):

There is a significant distinction between the two equitable doctrines affording relief from unfair and unnecessarily harsh results. The discovery rule avoids the mechanical application of a statute of limitations by postponing the accrual of a cause of action so long as a party is unaware either that he has been injured or that the injury was due to the fault or neglect of an identifiable person. Equitable tolling assumes the accrual of the action but intercepts and delays the bar of the statute of limitations because the plaintiff lacked vital information, which was withheld by a defendant.

Determining whether the discovery rule is applicable is “center[ed] upon an injured party’s knowledge concerning the origin and existence of his injuries as related to the conduct of another person.” Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J. Super. 428, 435 (Ch. Div. 1985). In some instances, “the fact of the wrong lay hidden until after the prescribed time had passed[,]” while “[i]n other cases damage may be all too apparent, but the injured party may not know that it is attributable to the fault or neglect of another.” Lopez, supra, 62 N.J. at 274.

Thus, the knowledge required is of both injury and fault. Torcon, Inc., supra, 205 N.J. Super. at 435(emphasis supplied). Specifically, “once a party knows it has been injured and the injury is the fault of another it has the requisite knowledge for the applicable period of limitations to commence running.” Ibid. The injured party need not be aware of the exact cause of the injury before the applicable statute of limitations may commence; “[i]t is only the identity of the party causing the injury and the fact of injury that must be known.” Ibid. Further, “[i]t is not necessary that the injured party have knowledge of the extent of the injury before the statute begins to run.” Id. at 436 (citation and internal quotation omitted).

As the above cases make clear, the discovery rule is not boundless. Indeed, it contemplates that it may be “unjust, […], to compel a person to defend a law suit long after the alleged injury has occurred when memories have faded, witnesses have died and evidence has been lost.” Id at 274. Therefore, New Jersey courts have held “that the equitable claims of the parties must be weighed against each other and that not every belated discovery will justify application of the rule.” County of Morris v. Fauver, 153 N.J. 80, 109 (1998). With this in mind, the discovery rule imposes an affirmative duty on plaintiffs “to use reasonable diligence to investigate a potential cause of action, and thus bars from recovery plaintiffs who had reason to know of their injuries.” Ibid.

Where the competing equitable claims of the parties cannot be reconciled, a just resolution must be reached, preferably by the judge, rather than the jury. Lopez, supra, 62 N.J. at 274. Typically, the best approach for the judge is to hold a preliminary hearing outside of the presence of the jury to make the determination of whether equity should preclude the statute of limitation’s bar. Id. at 275. If credibility is an issue, the court should avoid resolving the issue solely on the basis of affidavits. Ibid. However, the manner in which the hearing proceeds remains within the discretion of the trial court. Ibid. The Lopez court instructed that the following factors may appropriately be considered by the judge:

the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant. The burden of proof will rest upon the party claiming the indulgence of the rule.

Id. at 276.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Claims against architects and others involved in the design and construction of building projects generally accrue upon substantial completion of the project originally appeared on NJ Family Issues on September 13, 2017.

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PaulKostro <![CDATA[Common law fraud]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30608 2017-09-09T10:28:05Z 2017-09-09T10:28:05Z ]]>
Law Lessons from Kristine Deer, Inc. v. Booth; DOCKET No. C-29-16, BERGEN COUNTY, July 28, 2017:

To establish common law fraud, a party must demonstrate:

(1) a material misrepresentation of a presently existing or past fact;
(2) knowledge or belief by the defendant of its falsity;
(3) an intention that the other person rely on it;
(4) reasonable reliance thereon by the other person; and
(5) resulting damages.

Marino v. Marino, 200 N.J. 315, 341 (2009) (citing Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981)); see also Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). “Misrepresentation and reliance are the hallmarks of any fraud claim, and a fraud cause of action fails without them.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 174 (2005) (citing Gennari, supra, 148 N.J. at 610).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Common law fraud originally appeared on NJ Family Issues on September 9, 2017.

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PaulKostro <![CDATA[Equitable fraud]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30606 2017-09-09T10:25:56Z 2017-09-09T10:25:56Z ]]>
Law Lessons from Kristine Deer, Inc. v. Booth; DOCKET No. C-29-16, BERGEN COUNTY, July 28, 2017:

In contrast with a claim for common law fraud, an action for equitable fraud does not require proof of the second element, that a defendant know of the falsity of the statement. Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 148 (2015) (citing Jewish Ctr. of Sussex County, supra, 86 N.J. at 625). Hence, the other four elements are essential. Foont-Freedenfeld Corp. v. Electro Protective Corp., 126 N.J. Super. 254, 257 (App. Div. 1973) (citing Dover Shopping Center, Inc. v. Cushman’s Sons, Inc., 63 N.J. Super. 384, 391 (App. Div. 1960)). “However, in an action in which plaintiff relies upon equitable fraud, the only relief that may be sought is equitable relief.” Foont-Freedenfeld Corp. v. Electro Protective Corp., 126 N.J. Super. 254, 257 (App. Div. 1973).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Equitable fraud originally appeared on NJ Family Issues on September 9, 2017.

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PaulKostro <![CDATA[Quantum meruit is a form of quasi-contractual recovery and rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30604 2017-09-09T10:24:28Z 2017-09-09T10:24:28Z ]]>
Law Lessons from Kristine Deer, Inc. v. Booth; DOCKET No. C-29-16, BERGEN COUNTY, July 28, 2017:

Quantum meruit is a form of quasi-contractual recovery and “rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another.” Starkey v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002) (internal citations omitted). “Courts generally allow recovery in quasi-contract when one party has conferred a benefit on another, and the circumstances are such that to deny recovery would be unjust.” Ibid. (quoting Weichert Co. Realtors, 128 N.J. at 437). To recover under a theory of quantum meruit, a party must establish: “(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.” Ibid. (quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994)); accord Weichert Co. Realtors, supra, 128 N.J. at 437-38.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

Quantum meruit is a form of quasi-contractual recovery and rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another originally appeared on NJ Family Issues on September 9, 2017.

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PaulKostro <![CDATA[The New Jersey Trade Secrets Act]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30602 2017-09-09T10:23:06Z 2017-09-09T10:23:06Z ]]>
Law Lessons from Kristine Deer, Inc. v. Booth; DOCKET No. C-29-16, BERGEN COUNTY, July 28, 2017:

The New Jersey Trade Secrets Act, N.J.S.A. 56:15-1 to -9 (“TSA”), enacted in 2012, is based on the Uniform Trade Secrets Act prepared by the National Conference of Commissioners on Uniform State Laws. The New Jersey Law Revision Commission reviewed and modified the Uniform Trade Secrets Act to reflect New Jersey’s common law trade secret jurisprudence. The New Jersey Trade Secrets Act prohibits actual or threatened misappropriation of trade secrets. N.J.S.A. 56:15-3. TSA defines a trade secret as:

information, held by one or more people, without regard to form, including a formula, pattern, business data compilation, program, device, method, technique, design, diagram, drawing, invention, plan, procedure, prototype or process, that:

(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

N.J.S.A. 56:15-2.

The statute defines misappropriation as:

(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(2) Disclosure or use of a trade secret of another without express or implied consent of the trade secret owner by a person who:

(a) used improper means to acquire knowledge of the trade secret; or
(b) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was derived or acquired through improper means; or
(c) before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired through improper means.

N.J.S.A. 56:15-2.

The statute requires that the trade secret be acquired by “improper means.” TSA defines “improper means” as “the theft, bribery, misrepresentation, breach or inducement of a breach of an express or implied duty to maintain the secrecy of, or to limit the use or disclosure of, a trade secret, or espionage through electronic or other means, access that is unauthorized or exceeds the scope of authorization, or other means that violate a person’s rights under the laws of this State.” N.J.S.A. 56:15-2.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.

The New Jersey Trade Secrets Act originally appeared on NJ Family Issues on September 9, 2017.

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PaulKostro <![CDATA[The law protects confidential information even in the absence of an employment or other agreement prohibiting its use]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30600 2017-09-09T10:20:51Z 2017-09-09T10:20:51Z ]]>
Law Lessons from Kristine Deer, Inc. v. Booth; DOCKET No. C-29-16, BERGEN COUNTY, July 28, 2017:

The law protects confidential information even in the absence of an employment or other agreement prohibiting its use. Lamorte Burns & Co. v. Walters, 167 N.J. 285, 298 (2001).

Information need not rise to the level of a trade secret to be protected. Id. at 299. “However, matters of general knowledge within the industry may not be classified as . . . confidential information entitled to protection.” Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 33-34 (1971).

The key to determining if confidential information was misappropriated is the relationship of the parties at the time of disclosure and the intended use of the information. Lamorte, supra, 167 N.J. at 299 (citing Zippertubing Co. v. Teleflex, Inc., 757 F.2d 1401, 1407-10 (3rd Cir. 1985) (citing Kamm v. Flink, 113 N.J.L. 582 (E. & A. 1934))).

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The law protects confidential information even in the absence of an employment or other agreement prohibiting its use originally appeared on NJ Family Issues on September 9, 2017.

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