AZRAK & ASSOCIATES
A T T O R N E Y S A T L A
L E AG U E O F
M U N I C I PA L I T I E S
627 Newark Pompton Tnpk. AT L A N T I C C I T Y N J
Pompton Plains, NJ 07444
Azrak & Associates, L.L.C. was an
Tel: (973) 839-9062
exhibitor at the League of
Fax: (973) 839-2743
Municipalities held in November in
Atlantic City, New Jersey. Our
Municipal Land Use Department
www.azraklaw.com continues to grow.
Our water golf ball was a big hit and
the only question we will not answer
is the trick on how to get the ball on
the tee and to stay there - we may
Contributors: use the game at the 2004 convention
Fredric F. Azrak, Esq. and we do not want to make it too A NEW YEAR GREETING
Peter V. McArthur, Esq. easy.
Ira E. Weiner, Esq. FROM AZRAK &
Charles E. Murray, III, Esq. Azrak & Associates is looking A S S O C I AT E S , L . L . C .
Jane L. Caiazzo, Esq. forward to again being represented at
the 2004 League of Municipalities. We are pleased to inform our clients who
customarily receive a holiday card from
THE ECONOMIC Azrak & Associates that we have again this
GROWTH & TAX RELIEF year opted to make a donation in excess of
In This Issue: that cost to worthwhile charities in yours
League of Municipalities: and our staffs name.
Atlantic City, NJ . . . .1 Fredric F. Azrak, Esq.
We at Azrak & Associates, L.L.C. wanted to
The Economic Growth and The Economic Growth and Tax
include all of our clients in a very special
Tax Relief Reconciliation Relief Reconciliation Act passed by
holiday greeting through donations to the
Act . . . . . . . . . . . . . .1 Congress in 2001 phases out the
children residing at the Wanaque Center,
A New Year Greeting From
federal estate tax credit for state
Pediatric Department. They were in need
Azrak & Associates, death taxes. The phase out period
of a stereo and replacement toys for their
LLC. . . . . . . . . . . . . .1 will be complete in 2010, therefore it
children and we have donated these items as
is essential to review your present
Car Insurance - Protect well as presenting a check in the amount of
Your Legal Rights . . . . . .2 estate planning documents now to
$250.00. Additionally, we have donated
avoid unfavorable tax consequences.
Expanding and Improving $100.00 to the Pequannock Food Pantry and
Your Life Style - Call now to make an appointment to to $100.00 St. Mary's Food Pantry. We
Third in a Series . . . .2 have us review your estate plan. hope this holiday greeting will bring a sense
Based upon your individual needs, of the spirit of the season.
So You Want to Have
a Party . . . . . . . . . . . .3
we can advise you which planning
tools and strategies will work best to This newsletter hopefully provides you with
Employee Arbitration minimize risk, avoid tax informative and interesting information
Policy . . . . . . . . . . . .3
disadvantages and preserve about the law and our firm and serves as
maximum estate benefits for your the messenger for a healthy New Year
loved ones. greeting from all of us to all of you.
CAR INSURANCE application. At the same time, the consequences disentitling you to
insurance company did not get the vital insurance coverage, not to
PROTECT YOUR LEGAL premiums it would have been mention the potential criminal
RIGHTS entitled to, which would have implications of committing
covered the risk of paying PIP insurance fraud. You and your
Ira E. Weiner, Esq.
benefits to Paule. spouse should carefully review
Fredric F. Azrak, Esq. together all insurance related
The Supreme Court ultimately matters to be sure that there are no
We all know how expensive auto
ruled in favor of the insurance inaccuracies. Your insurance
insurance is in New Jersey. Paule
carrier, holding that it did not have coverage is too important to take
Bastien learned the hard way that
to pay Paule. The Court held that a lightly.
lying to the insurance company is
spouse is in a unique position to be
no way to lower premium costs.
aware of the other spouse’s
Paule’s husband, Leonel, decided to
interactions with the insurance EXPANDING AND
save some money by not telling the
carrier, and that responsible adults IMPROVING YOUR
insurance company that he was
should inform themselves LIFESTYLE
married when he applied for auto
concerning household insurance-
insurance. Since the company Third in a series
related matters. The Court went on
thought there was only one driver
to say that the strong public policy
in the household, the premiums
against insurance fraud favored
Peter V. McArthur
were lower than they otherwise Fredric F. Azrak
treating Paule in the same manner
would have been.
as her husband. The court felt that The next Board to discuss in our
The chickens came home to roost a allowing Paule to recover in these series is the Zoning Board of
year later when Paule was involved circumstances would result in a Adjustment. It consists of seven
in an auto accident and filed for disincentive to a married insurance regular and two alternate members.
Personal Injury Protection (PIP) applicant to tell the truth. Their terms are for four years and
benefits under the policy. Those two years respectively and they
Any attempt to try and circumvent
benefits normally cover medical must be residents of the
the Court ruling by submitting the
expenses of family members community.
bills to any health insurance the
residing in the policyholder’s
Bastien’s may have had would also The jurisdiction of the Zoning
household. When the insurance
fail. The law provides that when Board is as follows. They can hear
company realized that the
the PIP carrier is selected as the appeals from a decision from the
application submitted by Leonel
primary carrier (all insureds have a town zoning code official. They
had not been truthful, it started suit
right to designate either their PIP or can also hear requests for an
to declare the policy void. The case
their health carrier as the primary interpretation of the zone map or
went all the way up to The
insurer for accident related medical zoning ordinance. Examples can
Supreme Court of New Jersey.
expenses), the health carrier as a be as follows:
If Leonel had been injured, it secondary insurer is only
would have been an easy case - responsible for certain defined • There may be a question of
after all, he was the one who lied uncovered “allowable” expenses. whether some use is permitted in
and the Court would have had no Under the circumstances, these the town;
trouble ruling in the company’s expenses would not be considered
allowable. Moreover, the Court • That a commercial use (i.e. an
favor. But the Court assumed that
would be unlikely to put the burden automobile repair business) is now
Paule did not know of her
of the insured’s fraud on the back not permitted in a certain
husband’s misrepresentation, and
of the health insurance company. neighborhood presently, but the
that she was an innocent spouse.
owner wants to expand his
The Court had to decide whether
The moral of the story is that business;
she should suffer, even though she
misrepresentations on an insurance
had no knowledge of the false
application may result in severe
February, 2004 Azrak & Associates Page 2
TO: ALL CLIENTS OF AZRAK & ASSOCIATES, L.L.C.
FROM: FREDRIC F. AZRAK, ESQ.
The Municipal Land Use section of our firm (zoning and variances) has
won a groundbreaking decision in the Superior Court. Representing a
client opposing the development of one of the largest gas station /
convenience stores in New Jersey, the New Jersey Superior Court has
dismissed the oil companies application for development. Azrak &
Associates argued successfully that despite nearly three years of
hearings at the Board of Adjustment the oil companies application
should be thrown out due to a conflict of interest when an expert for the
oil company, negotiated and became employed by the township during
the pendency of the application.
The Court agreed with Mr. Azrak’s position and, thereafter, noted the
proceedings were so infected with “the appearance of impropriety” that it
could not be salvaged - “the egg could not be unscrambled”.
This case is a first of its kind in New Jersey and provides the results of
the service we have written in our article series entitled “Expanding and
Improving Your Lifestyle”.
February, 2004 Azrak & Associates Page 2
• A developer may wish to put someone who is intoxicated and intoxicated adults. Figuly v. Knoll,
more condominiums on a particular injures someone in an automobile 185 N.J. Super. 477 (Law Div.
property then what is presently accident. That is both regulated by 1982).
allowed; the Drunken Driving Statutes in the
State of New Jersey, as well as, the In this way, social host liability
• Someone wants to build a case law for negligence. The issue became firmly established by the
home larger than what is permitted; that has developed in the last New Jersey laws by 1984. Kelly v.
fifteen to twenty years extends that Gwinnell, 96 N.J. 538, 548 (1984).
The examples are numerous. However, back in 1984, a host was
liability when someone is served
A Zoning Board can have duel alcohol and then injures someone. only liable if he directly provided
functions whereas a Planning The issue is: Can the injured person liquor to a social guest and
Board’s powers are different. sue the party who served the continues to do so even beyond the
alcohol, as well as the person who point at which he knows the guest
Most of the time either a Planning is intoxicated and does so knowing
created the injury, i.e. the other
Board or a Zoning Board of that the guest will, shortly
Adjustment can conduct business thereafter, operate a motor vehicle.
when a majority of the authorized As recently as 1959, the common Under these circumstances, the host
membership is present. This is law in New Jersey, and generally was liable for any foreseeable
called a quorum. There are throughout the country, was that a consequences to third parties that
different voting criteria for each cause of action for negligence result from the guest’s drunken
Board and, if the need arises, Azrak could not lie against a social host driving.
& Associates will guide you who served alcohol to an
through that process as well. intoxicated individual. In the next series of this article, you
will see how the State of New
In 1959, however, the New Jersey Jersey and its legislators dealt with
SO, YOU WANT TO HAVE Supreme Court made a watermark this issue and we will follow the
A PARTY? decision finding tavern keepers history and development of this
who serve a minor or obviously most interesting area of the law
Part 1 of a 2 Part Series intoxicated person, can be liable for from 1984 through 2003. Naturally,
negligence for an injury that an until you have read the entire series
Charles E. Murray, III
intoxicated individual causes to a of this area of the law, be careful in
Fredric F. Azrak
third-party. This line of cases having parties!
You have a party. Someone is imposing liability on a tavern
keeper, gave rise to legislation The solution: If something happens,
intoxicated or drinks too much and
known as the “Dram Shop Act.” contact Azrak & Associates. We
injures someone on the way home
can negotiate with your insurance
in their car. You went away. Your
In 1976, the law began changing company.
son or daughter had a party.
from just making commercial
Someone got drunk and injured a
tavern owners responsible and
third-party on the way home. The
stretching the liability to someone EMPLOYEE
injured party is now suing you.
who is a social host and serves ARBITRATION POLICY
The good news: Your insurance alcohol at their home. In 1976, the Jane L. Caiazzo, Esq.
may cover the damage. Appellate Division ruled that social Fredric F. Azrak, Esq.
hosts would also be held liable for
In this two-part series, you will be the results of their serving alcohol, In a small victory for employees,
given the history of the but only if a minor was served. the New Jersey Supreme Court, has
development of liability for serving unanimously ruled that employees
alcohol in the State of New Jersey. Six years later, the Court decided who do not sign a form which
that the adult/minor distinction did specifically requires them to
You will find that New Jersey not hold water and extended arbitrate job related claims, may
always imposed liability on liability for serving alcohol to not be forced to arbitrate.
February, 2004 Azrak & Associates Page 3
A T T O R N E Y S A T L A W
627 Newark Pompton Turnpike
Pompton Plains, NJ 07444
Tel: (973) 839-9062
Fax: (973) 839-2743
Azrak & Associates, l.l.c.
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Continued from page 3
The case decided by the Court, Leodori v. CIGNA reflecting the employee’s consent. Justice Verniero
Corp, held that the inclusion of an arbitration policy in found that a company could not require a signature and
a company handbook is not sufficient to bind the then assert that its omission is irrelevant to the
employee. Generally, employers prefer arbitration to agreement’s validity.
juries, which are thought to be more sympathetic to
employee claims. The Court’s decision represents the third major ruling
on employment arbitration clauses in recent years. In
Paul Leodori, an attorney at CIGNA Insurance 2002, the Court in Martindale v. Sandvik, Inc., held that
Company, alleged that he was fired after he filed a an arbitration clause contained in an employment
CEPA complaint which was dismissed. CIGNA had an application was enforceable. Along these same lines, in
arbitration policy and employee handbooks which 2001, the Court in Garfinkel v. Morristown Obstetrics
provided for binding arbitration as the final resolution & Gynecology Associates, held that a policy waiving an
process for employment related disputes. Mr. Leodori employee’s right to sue must be clear as to which
signed an acknowledgement indicating that he had statutory causes of action apply.
received the handbook, however, he failed to sign an
acknowledgement on a form entitled “Employee It is clear from these decisions that arbitration
Handbook Receipt and Agreement.” agreements in employment contracts are enforceable,
however, they must be clear, specific and duly signed
The Court held that a waiver of rights could only result by an employee before a court will find them binding.
where there is an explicit, affirmative agreement
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