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Herten, Burstein, Sheridan, Cevasco,
Bottinelli, Litt, Toskos & Harz, LLC
REPORT FROM COUNSEL
SPRING 2006 ISSUE
ENHANCING OUR ABILITY TO SERVE
By Andrew
Cevasco, Esq.
Since our last
newsletter, the firm has once again added to our cadre of talented
and exceptional lawyers so that we can better serve our clients.
R.J.
Contant has joined our firm as an equity member. With his admission
to the bar in 1962, Mr. Contant continued the family tradition that
had persisted for over fifty years. Mr. Contant's experience in the
areas of estate planning and administration and business and
transactional law add important depth to this
growing area of the firm's practice. As the Contant tradition
approaches the century mark in the Bergen County legal community, we
gladly welcome Mr. Contant to the firm.
Joining Mr.
Contant at our firm is his long time partner, Andrew T. Fede. Mr.
Fede, a New Jersey Super Lawyer in 2006, has substantial experience
in the areas of municipal law, government regulations and civil
litigation. He has had the unique opportunity to argue four cases
before the New Jersey Supreme Court and to be involved in more than
fifteen officially reported cases in the Superior Court and Supreme
Count of New Jersey. In addition to the skill as a trial attorney
and appellate advocate, Mr. Fede has been an adjunct professor in
the legal studies department at Montclair State University for the
past fourteen years.
Michael I. Lubin
joined our firm in December of 2005. Certified by the Supreme
Court of New Jersey as a civil trial attorney, Mr. Lubin is a
litigator with over thirty years of experience in both trial and
appellate courts. He concentrates his practice in the areas of
commercial and chancery litigation including land use and zoning
matters. Mr. Lubin is a barrister of the Justice Morris Pashman Inns
of Court and is also a member of the District IIB Ethics Committee
for Bergen County. The addition of Mr. Fede and Mr. Lubin has added
strength and depth to our already outstanding land use and
litigation practices.
Finally, the firm
welcomes our newest associates, Cynthia Brooks and Leonard
J.C. Hardesty, Jr. Ms. Brooks brings to the firm over ten years
experience in complex commercial real estate matters and general
business transactions. Her substantial legal talent supports our
continually growing commercial real estate practice which is
supervised by another of the firm's New Jersey Super Lawyers, Arnold
D. Litt.
Mr. Hardesty's
experience encompasses all phases of business transactions. He will
continue to practice in the area of complex business acquisitions
supporting senior partner, Thomas J. Herten, in those endeavors. In
addition to a wealth of experience in general corporate and business
matters, Mr. Hardesty is also equipped to handle complex federal and
estate tax matters on behalf of the firm's business clients.
Finally, and
perhaps most exciting, is the announcement that recently retired
Superior Court Judge, the Honorable Gerald C. Escala, J.S.C., has
joined our firm as special counsel. Judge Escala, who retired on
February 24, 2006, and joined us shortly thereafter, has served in
various capacities as a Judge of the Superior Court. Most recently,
he was the Presiding Judge of the Chancery Division in Bergen
County. In that capacity, he has had the opportunity to view the
legal process from the unique vantage point of the ultimate decision
maker. With this wealth of knowledge and experience, he will be a
unique and valuable asset to our clients with regard to both
litigation as well as transactional matters involving unique facts
and complex legal issues. In addition, he will provide to the public
a unique mix of alternate dispute resolution services such as
mediation, arbitration and complex litigation management. The firm
looks forward to a rich and productive association with former Judge
Escala who is known for his insightful analysis and ability to cut
to the heart of complex matters, qualities that will serve our
clients well.
SECTION 1031 LIKE-KIND EXCHANGES MAY BE IN
JEOPARDY
By Leonard J.C.
Hardesty Jr., Esq.
As reported in the
National Apartment Association (hereinafter "NAA") "Units"
periodical (December, 2005 issue) (hereinafter "Units"), the
President's Advisory Panel on Federal Tax Reform issued final
recommendations to John W. Snow, Treasury Secretary, who was
required to make recommendations to President Bush by the end of
2005. The report contains two proposals: The simplified income tax
plan (SIIP) and the growth and investment tax plan (GITP)
NAA reports that
although many provisions of the two plans are identical, they differ
in the treatment of business and investment income for taxation
purposes. No specific mention is made in the recommendations with
respect to Section 1031 "Like-Kind" exchanges, but it is suspected
that both will be eliminated as part of the "reforms."
1031 Like-Kind
exchanges are not tax avoidance provisions, but rather delay the
reporting of taxable gains from the sale of commercials buildings,
such as,
apartment houses, by permitting an exchange of properties and
adjustment of the tax basis of the acquired property by reducing the
cost basis thereof for tax reporting purposes. Upon the ultimate
sale of the exchange property, the taxable gain of course will be
reported. The effect of the 1031 Like-Kind Exchange Provision has
been to increase the turnover of commercial real estate properties
which has reinvigorated the real estate industry by creating
opportunities for sellers and buyers alike to buy and/or sell their
properties under circumstances which would not otherwise suggest
such transactions in the absence of a 1031 Like-Kind Exchange
Provision. Although the NAA is in part a lobbying group for
apartment building owners, the effect of rescission of the 1031
Like-Kind Exchange Provision may very well force sellers to rethink
the sale of their buildings, which, of course, will have a
substantial impact on the real estate industry as a whole. All of
our clients who have real estate interests should consider writing
or e-mailing, or otherwise contacting their congressmen and senators
for the purpose of voicing their objections to any effort on the
part of the law makers to rescind this provision.
NEWS FROM HERTENBURSTEIN.COM
* Following 2005
in which four of the firms equity members where chosen as "Super
Lawyers," in 2006 New Jersey Monthly bestowed this honor on two
additional attorneys from the Firm bringing the total to six. Thomas
J. Herten,
Terry Paul Bottinelli, Arnold D. Litt, Steven B. Harz, Michael I.
Lubin and Andrew Fede have all received that moniker. An article
will be written in a special future edition of New Jersey Monthly
Magazine recognizing the top lawyers in the State for their
achievements to the legal profession. Needless to say, our Firm is
very proud of the recognition they have received.
* Thomas J. Herten
will be one of three distinguished speakers presenting the
topic of real estate litigation in the Chancery Division during the
annual Bergen County Bar Association, General Equity Committee
seminar. The seminar is being held on March 29, 2006 in Judge Sybil
Moses' Courtroom #425 in the Bergen County Courthouse. Anyone that
is interested can contact the Bergen County Bar Association for
tickets and further details.
* The move is
complete. Due to the Firm's growth, we outgrew our old space in the
North Building of Court Plaza and jumped across the Courtyard to the
West Wing in the South Building. The move welcomed the addition of
five large conference rooms, central filing, a second kitchen for
clients' use, updated décor, and a more efficient design. We welcome
anyone in the area to stop in and see the new offices.
* Speaking about
expansion, Arnold and Elaine Litt who announced the arrival of two
granddaughters recently, now have the long-awaited boy Arnold has
been hoping for. Despite the addition of Jake Goldman, Arnold's
minority shareholder status within the family remains secure due to
his three daughters and four granddaughters.
* We would also
like to congratulate Jodi and John Campbell who on August 29, 2005
welcomed their first child into the world. Patrick Joseph was born
at
Englewood Medical Center and entered this world at 9:22 am weighing
7 pounds 4 ounces. After taking a leave of absence, Jodi is already
back to work but keeping a close watch on baby Patrick.
* There has been a
change in our receptionist. The phones will no longer be answered by
Karen Klein, but will now be answered by Karen Robotti. This is due
to the fact that on January 14, 2005 nuptials were exchanged between
Karen and Ray Robotti in a small ceremony in the Bahamas. We wish
the married couple a happy and long life together.
* On the Judicial
front, 2006 marks the 16th year that Phil Sheridan has been
sitting as the municipal court judge for the Village of Ridgewood.
* Joining Phil as
a municipal court judge, Terry Paul Bottinelli was appointed and
currently serves as the municipal court judge in both Closter and
Cresskill.
* Equity member
Terry Paul Bottinelli was recently re-certified as a New Jersey
Supreme Court Certified Trial Attorney and joins Michael I. Lubin
with that distinction.
* On motion by
Thomas J. Herten and Terry Paul Bottinelli, Daniel Gielchinsky was
admitted to the United States Supreme Court in Washington D.C.
* January is a
time when governmental entities reorganize. The Borough of Waldwick
held its reorganization meeting on January 1st swearing in new
council persons and making professional appointments. Thomas J.
Herten was appointed as Borough Attorney for the municipality of
Waldwick, replacing Manny Toskos who ascended to the Superior Court
as a Judge in August. The Township of Mahwah also needed to replace
Manny and on November 10, 2005 appointed Terry Paul Bottinelli as
their Township Attorney. The Borough of Alpine also reorganized and
re-appointed Terry its Borough Attorney. In expanding the municipal
practice at the Firm three new municipalities were added whereby
Andrew Fede was appointed Borough attorney in Norwood, Maywood, and
Bogota.
* Over the course
of last year, Arnold D. Litt and Craig P. Bossong on behalf of a
conglomeration of landlords in the Township of Teaneck successfully
lobbied the Township Council to moderate their stringent rent
control laws and look towards a more progressive approach which
could potentially raise more revenue for the Township. In November
the Council voted to permit higher yearly increases, limited vacancy
decontrol, and allow a fairer calculation for pass-throughs on
capital improvements. Following such successful effort, Arnold and
Craig hosted a seminar for all Teaneck Landlords explaining the new
ordinance and highlighting the requirements and benefits for the
landlords.
* During the month
of January and beginning of February the Firm's active involvement
in the Bergen County Mock Trial program continued. Bergen County has
the largest participation of schools in the State of New Jersey with
32 entries. As the Bergen County Mock Trial Coordinator, Craig
Bossong along with assistance from Damon Kamvosoulis scheduled and
ran 57 mock trials. Except for the finals all mock trials took place
in the Bergen County Court House where each was judged by two
attorneys. Needing over 100 lawyers to act as judges our Firm
stepped up to the plate with participation by lawyers including Andy
Cevasco, Terry Paul Bottinelli, Scott D. Jacobson, Jason Shafron,
Michael Lubin, Lou Tomasella, Nilufer DeScherer, Daniel Gielchinsky,
Marina Hoppas, Holly C. Peterson, and Leonard Hardesty. New Jersey
Superior Court Judge Harry Carroll and New Jersey Superior Court
Judge Brian Martinotti judged the Mock Trial Final which was
televised over the Cablevision network. In a close decision,
Immaculate Heart Academy of Washington Township edged out Mahwah
High School. The Mock Trial Final will be rebroadcast in May as a
Law Day event and can be seen by Cablevision subscribers on the
local public access station.
ADA PROTECTS EMPLOYEES WITH CANCER
Now 15 years old, the Americans with Disabilities
Act (ADA) protects disabled
persons from discrimination in employment settings. When you first
think of individuals with disabilities, the millions of Americans
who have some history of cancer may not immediately come to mind.
But, as the Equal Employment Opportunity Commission (EEOC) discusses
in a recently published guide, a cancer victim may well be entitled
to the protections afforded by the ADA.
Cancer as a Disability
Cancer is a "disability" within the meaning of the
ADA when the cancer itself or its effects substantially limit one or
more of a person's major life activities.
The limiting condition needs to be more than just temporary in
nature. Just what constitutes a major life activity is difficult to
succinctly describe, but an exhaustive list would be a long one.
Interacting with others, sleeping, eating,
and walking are but a few examples. As with other types of
conditions, cancer will be treated as a disability if it does not,
in fact, significantly affect a major life activity but an
employer treats the individual as if it does. This reflects the
ADA's goal of attacking discriminatory stereotypes and assumptions
when they motivate an employer's decisionmaking.
Information Gathering
During the time period before any offer of
employment has been made, an employer may not ask an applicant if he
or she has (or has had) cancer, or about cancer-related treatments.
The employer is permitted to ask if an applicant can perform
particular job requirements. If an applicant has volunteered the
information that he or she has (or has had) cancer, the employer
still may not question the applicant about the cancer or the
applicant's prognosis, but the employer may ask questions about
whether the applicant will need an accommodation and, if so, what
kind.
Once a job offer has been made, the employer may
ask health-related questions and require a medical exam, as long as
the employer treats all applicants for the same type of position in
the same manner. The discovery that an applicant has (or has had)
cancer cannot be used to withdraw a job offer if the applicant can
perform safely all of a job's fundamental duties, with or without
reasonable accommodation. When an offer has been accepted, the
employer can ask questions about the employee's health or require a
medical exam only when it has a legitimate reason to believe that
the cancer may be affecting the employee's ability to do the job,
and to do it safely. With a few exceptions, an employer must keep
confidential any medical information learned about an applicant or
employee.
Reasonable Accommodations
Within reason, the ADA requires employers to make
adjustments or accommodations to enable people with disabilities to
enjoy equal employment opportunities. An employer is not required to
subject itself to undue hardship (that is, significant expense or
difficulty) in order to accommodate someone. Nor must an employer
remove an essential function from a job, although it may choose to
do so. As for cancer-related disabilities, some individuals may
need, and are entitled to, reasonable accommodations because of the
cancer itself, the effects of cancer medication and treatment, or
both. A request is necessary to trigger the duty to make a
reasonable accommodation, but no "magic words" are required and, in
fact, the request may come from someone acting on behalf of the
disabled person. The guidance is available on the EEOC's website at
www.eeoc.gov/facts/cancer.html.
AEDS HELP TREAT HEART ATTACKS . . .
But Can Cause Legal Headaches
An automated external defibrillator (AED) is used
to treat people suffering sudden cardiac arrest whose hearts have an
irregular heartbeat. Since September of 2004, when the Federal Food
and Drug Administration approved over-the-counter sales of AEDs, it
has been possible for individuals and businesses to have AEDs on
hand, instead of waiting for them to be brought by medical
personnel.
The greater availability of AEDs has been a mixed
blessing from a legal standpoint. Businesses most likely to put an
AED to use (and what business cannot foresee that a customer might
have a heart attack on its premises?) are now in the position of
having to decide whether they should have an AED at their
facilities. If they do not, there is a risk that a customer who
needed an AED could cite the failure as negligence in a lawsuit.
That is the "damned if you don't" part, but the rest of the saying
may apply as well.
If a business--for example, a fitness
center--decides that it would be prudent
to have its own AED, it may be commended for preparing for an
emergency, but it also may have created a legal headache. Under the
right set of facts, the business could be liable for a range of acts
or omissions, such as not training its personnel to properly use the
AED, or even something as simple as not keeping fresh batteries in
the AED. There are already lawsuits in which such allegations have
been made, and court cases from the period before over-the-counter
sales began suggest that businesses can be held liable if the AED is
not kept in good working order or if the use (or non-use) of the AED
is especially negligent.
Businesses with AEDs on premises should think in
terms of having a comprehensive AED program, not just the piece of
equipment. With a view toward quick and effective use of the AED,
the program should include:
- good means of communication about emergencies
requiring an AED;
- training of workers in the use of the AED;
- procedures for regular checking and maintenance
of the AED, and;
- storage of the AED in an accessible location,
identified by clear signs.
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