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									                 AZRAK & ASSOCIATES
                 A        T        T   O      R      N       E      Y       S      A      T          L      A

February, 2004

                                       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                    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
                                       RECONCILIATION ACT
 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
                 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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