site stats

Firm News

Dismissal of Snow and Ice Case in Bronx County

Anne Armstrong recently obtained a dismissal of a plaintiff's complaint in the Bronx by way of a summary judgment motion that she orally argued.  The plaintiff, Theresa Berrios, had sued the Firm's client - a general contractor - for injuries arising out a slip and fall on ice that had formed on a sidewalk around where the client had done construction work.  After oral argument, Justice Mitchell J. Danziger dismissed the complaint.  The decision is Theresa Berrios v. City of New York, index number 304746/2014, Supreme Court, Bronx County.


G + B Trial Victory Protecting New York City Co-op


Attorneys Arthur Xanthos and William Brophy recently obtained a stunning victory on behalf of an Upper East Side co-op, that had been sued by shareholder-tenants seeking seven figures in damages due to leaks into their apartment over a span of nine years.  Specifically, the shareholder-tenants sought money for a maintenance abatement, diminution in value to the apartment, property damage, and punitive damages.  The complaint sought more than $1 million, and the settlement demand at trial was $250,000.  After trial, however, the only damages awarded amounted to a little more than $16,000.       

                             By Jacqueline A. Muttick, Esq.
New Jersey courts have continued the trend of applying an exacting reading to arbitration provisions, resulting in cases where such provisions have been struck down for failure to state clearly and unambiguously that the parties waive the right to seek relief in court and instead elect arbitration. A recent decision from late last year held an arbitration provision to be unenforceable when it did not set forth a specific arbitration forum (or a process for choosing an arbitration forum), and otherwise did not itemize the rights that replaced the right to proceed in court. Flanzman v. Jenny Craig, Inc., et al., 456 N.J. Super. 613 (App. Div. 2018). Likewise, the Court earlier this year struck down an arbitration provision that it similarly deemed ambiguous when, among other things, the provision itself was not labeled an “arbitration” provision and contained contradictory language that failed to inform the parties of the rights they were waiving. Kernahan v. Home Warranty Administrator of Florida, Inc., __ N.J. __ (2019).
               In Kernahan, the parties entered into a consumer agreement and, after plaintiff consumer filed litigation, defendants moved to dismiss the complaint and enforce arbitration pursuant to the agreement. The Court found that the contract failed to inform consumers, including the plaintiff, that they were waiving their right to trial. Specifically, the arbitration provision was found in a section of the agreement labeled “Mediation,” the font size was small making the provision difficult to read, and the provision itself contained contradictory terms including requiring the arbitration to proceed under the AAA’s Commercial Mediation Rules. (Mediation and arbitration are vastly different, with mediation still providing parties with the opportunity to litigate while arbitration is a process that results in a final disposition.) The Plain Language Act, N.J.S.A. 56:12-1 to -13, requires consumer contracts be written in such a manner as to be understandable by a lay person, and the case law regarding arbitration provisions applies this standard as well. Since the provision in the Kernahan agreement failed to meet these requirement, there was no mutual assent to arbitration and the provision was deemed unenforceable. The Court again reaffirmed the position that “an arbitration agreement is clearly enforceable when its terms affirmatively state, or unambiguously convey to a consumer in a way that he or she would understand, that there is a distinction between agreeing to resolve a dispute in arbitration and agreeing to resolve that dispute in a judicial forum.” Id. slip op. at 24 (citing Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 442-444 (2014)).
            The Kernahan decision is significant for its discussion of Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421 (2017). In Kindred Nursing, the United States Supreme Court reviewed a Kentucky case requiring a power of attorney agreement to explicitly state that the agent (the attorney-in-fact) held the authority to waive the principal’s right to a jury trial. The Supreme Court held that such a requirement contravened the Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, by holding arbitration agreements to a more exacting standard than other agreements, and by adding an additional barrier to the enforcement of arbitration agreements.  The Court in Kernahan was not asked to review whether Atalese and other New Jersey cases violated Kindred Nursing. Nevertheless the Court did note that such an analysis would not be required for Kernahan because the threshold issue of whether the arbitration provision was clear was easily answered, as the provision did not contain the clarity required for mutual assent. In his concurring opinion, Justice Albin directly addressed this issue and found that Atalese did not conflict with Kindred Nursing, as New Jersey's case law does not disfavor arbitration agreements, but instead only requires the same mutual assent for enforcement that is required of all contracts.
While the majority opinion avoided directly opining on whether Atalese and its progeny runs afoul of Kindred Nursing, it appears from Kernahan that the Court is poised to uphold current New Jersey case law. Given the Court’s ruling in Kernahan, it is anticipated that New Jersey courts will continue their reading of consumer arbitration provisions, which currently favors jury trial in the event there is any ambiguity regarding the mutual assent to arbitrate. At the moment, the Court requires an explicit waiver of jury trial (see, e.g, Atalese), selection of the specific arbitration forum, itemization of the rights replacing the right to proceed in court (see Flanzman), and observance of the Plain Language Act, including clarity in contract terms and headings.
                                                                              -JAM 6/18/19


G+B Recognized at 2019 Chinese American Insurance Association Banquet


By:      Gartner + Bloom, P.C.
Date:   March 8, 2019

             Last night G+B was recognized by the Chinese American Insurance Association at their annual banquet in New York City! G+B Associate Vera Tsai, who is the President of the CAIA, presented to the firm a statue recognizing the Year of the Pig.

            Check out our new LinkedIn page for a photo of the event and statue, at:


Ken Bloom Speaking at ABA Insurance Coverage Conference


By:      Gartner + Bloom, P.C.

Date:   February 27, 2019

            G+B Founding Partner Ken Bloom has been invited to speak at this year’s ABA Insurance Coverage Litigation Committee Seminar in Tucson, Arizona, taking place from February 27 to March 2. Ken is a panelist on a program titled “Bad Facts Make Bad Dreams and Bad Law: Coverage Nightmares We Lose Sleep Over.” Ken has been contributing to CLE services in the insurance coverage field for over thirty years – this particular panel will focus on recent court decisions that highlight potential risk exposure by adjuster non-compliance.

G+B Appellate Decision Featured in Habitat Magazine

By:      Gartner + Bloom, P.C.

Date:   February 26, 2019

            A G+B decision is featured in the March 2019 issue of Habitat Magazine for our win at the Appellate Division last November. G+B successfully protected our clients by imposition of the business judgment rule at the lower court, and Associate William Brophy secured an affirmance on appeal.

            See link for the feature:


G+B’s Jeffrey Miragliotta selected to be on CLM Young Professionals Advisory Board.

By:      Gartner + Bloom, P.C.

Date:   February 14, 2019

            New York Partner Jeffrey Miragliotta was recently named to the Claims and Litigation Management (CLM) Alliance Young Professionals Advisory Board. Jeff was nominated and then appointed to a selective advisory board that is tasked with the national development of younger industry leaders in the field of claims and litigation management. Jeff, who specializes in insurance defense litigation, said that he is excited to get to work, and that he has already “seen an increase in both interest and potential across the younger generation of professionals in this area.”


Gartner + Bloom Wins Seven-Figure Award in Manhattan Arbitration Involving LLC Dispute


By:      Gartner + Bloom, P.C.
Date:   January 16, 2019

            Partner Arthur P. Xanthos and Associate Michael E. Kar recently won a seven-figure award on behalf of a member of a limited liability company (LLC) in the construction industry. The Firm’s client had been unjustly expelled from the construction company and denied his equity interest therein. G&B brought the issue to arbitration before the American Arbitration Association, which resulted in two weeks of hearings including extensive forensic analysis of LLC transactions, competing and complex business valuations, and pivotal contract interpretation issues.

            All of the opposition’s counterclaims were dismissed, and the Firm’s client was awarded his full equity interest, with all costs and interest.

            G&B endeavors to settle business disputes practically and without the need for litigation (and indeed attempted to do so in this case prior to the arbitration). When necessary, however, our attorneys advocate for our clients to the fullest extent of the law in front of courts or arbitral forums.

G&B obtains significant ruling against national brokerage firm, limiting New Jersey’s attachment statutes

By:      Gartner + Bloom, P.C.
Date:   December 21, 2018

            Partner Alexander D. Fisher and Associate Kenneth M. O’Donohue of the firm’s New Jersey office recently represented a Connecticut woman in an effort by her former stock brokerage company to obtain a pre-arbitration attachment of her brokerage accounts. In fact, the brokerage company seized these accounts and restrained our client from accessing her funds, all without prior notice to her and the arbitrator to which both parties agreed or the arbitration hearing taking place, let alone having been decided on the merits. Prejudgment attachment is extremely rare and is customarily sought when a party is removing funds or engaging in fraudulent conduct before a matter is determined. 

            There was no serious dispute that the disagreement between our client and the brokerage firm, was subject to FINRA arbitration in New York. Our client had no ties whatsoever to New Jersey. She did not live in the state, own property in New Jersey, or conduct business in New Jersey. The brokerage company acknowledged this fact, but claimed the basis for the prejudgment ex parte seizure was because the brokerage company’s “headquarters” was located in New Jersey. With this rationale, the brokerage company claimed it could seize our client’s funds at any national bank where our client had an account, even if there was no actual account in New Jersey.

            This rationale clearly violated the minimum contacts test under the United States Constitution for obtaining personal jurisdiction over a defendant. We also moved on the grounds that the bank failed to comply with the requirements of the New Jersey statutes governing pre-judgment attachment, specifically N.J. Court Rules 4-60 and N.J. Rev. Stat. § 2A:15-41 and 42 (2016). We further moved because the brokerage agreement between the bank and our client required that any disputes arising out of the agreement be governed by New York law, and further stated that out client would accept service of process from the bank. Since a requirement of the attachment statutes is that the party against whom attachment is sought cannot be served within the state, we argued that the service provision in the brokerage agreement meant that prong of the statutory requirement could not be met.

            After extensive oral argument before the Hon. Francis B. Schultz, the Court ruled that there was no jurisdiction over our client in the State of New Jersey. The Court further ruled that merely the presence of a bank branch in the state did not mean that a party could seek to attach any assets of a bank customer, regardless of that customer’s connection to New Jersey. Additionally, Judge Schultz ruled that the service provision in the brokerage agreement meant that the bank could not meet the requirements of the relevant pre-judgment attachment statutes. Accordingly, the Court permanently vacated the writs of attachment and ordered our client’s funds released immediately.

            This case highlights the limits of jurisdiction. While the State of New Jersey (like many other states) has a “long-arm statute” to ensure that parties that avail themselves of the protection of New Jersey law cannot evade jurisdiction, the Court’s decision shows that there are limits to how far jurisdiction extends. Specifically, the Court’s decision indicated that a party cannot seek to attach a foreign bank account merely because the bank where the account is maintained has a separate branch office in New Jersey. Rather, the Court found that the State of New Jersey had to have some minimum contacts with the person against whom attachment was sought in order to exercise jurisdiction over that party. It further shows that a choice of law clause and/or a service provision in a contract should be carefully considered by the drafter, as merely selecting a venue of convenience for your client may foreclose them from seeking to bring a claim in a venue with more advantageous statutes.


Gartner + Bloom, P.C., participates in Frosty’s Friends 2018 toy drive

By:    Gartner + Bloom, P.C.
Date: December 13, 2018

            Gartner + bloom, P.C., spearheaded by New Jersey Partner Alex Fisher, is participating in this year's Frosty's Friends toy drive. The program collects children’s letters to Santa and sends them to volunteers who play Santa and buy, wrap, and deliver the gifts before Christmas. Happy Holidays!



 Alexander D. Fisher
 Alex Fisher
 Alissa Mendys
 alternative dispute resolution
 Anne Armstrong
 Appellate Division
 Arthur Xanthos
 attorneys fees
 automatic orders
 autonomous vehicle
 Award; LinkedIn
 BCL 624
 board of directors
 bodily injury
 Brown v. Blennerhasset
 Business Judgment Rule
 business law
 business litigation
 Chinese American Insurance Association
 choice of law
 Christine Messina
 claims professionals
 closely held corporation
 co-op and condo
 co-ops and condo
 construction defect
 construction law
 contract drafting
 contract law
 cooling tower
 Cornell v. 360 W. 51st Realty
 corporate mismanagement
 corporate records
 corporate veil
 Court of Appeals
 crane collapse
 due diligence
 equitable distribution
 expert preclusion
 Gartner + Bloom
 general contractors
 general partnerships
 Hudson Pointe Condominium Association
 indemnity provision
 Insurance Coverage
 Insurance Defense
 Jacqueline A. Muttick
 Jeff Miragliotta
 Jeffrey Johnson
 Joseph Rapice
 jury award
 Ken Bloom
 labor law
 legal fees
 legionnaires disease
 life insurance
 limited liability companies
 limited liability company
 limited liability partnerships
 limited partnerships
 Malouf v. Equinox Holdings
 Marc Shortino
 Medieval Festival
 Michael E. Kar
 Michael Kar
 mold litigation
 Motion Practice
 New Jersey
 New Jersey Supreme Court
 noise complaints
 O'Brien v. Port Authority
 operating agreement
 personal injury
 premises liability
 proprietary lease
 punitive damages
 real estate
 risk management
 risk management meetings
 Roy Anderson
 secondhand smoke
 Sessa v. Sessa
 shareholders agreement
 slip and fall
 statute of limitations
 statute of repose
 Stuart Gartner
 summary judgment
 Susan Mahon
 tax partnership representative
 The Palisades at Fort Lee Conndominium
 toxic tort
 Vera Tsai
 warranty of habitability
 Washington Heights
 water tower
 William Brophy
 William Brophy; Appellate Practice; Business Judgment Rule; Insurance Defense; Litigation; Fiduciary Duty
 winter wishes


New York
801 Second Avenue,
11th Floor
New York, NY 10017
Phone: (212) 759-5800

New Jersey
110 South Jefferson Road,
Suite 300
Whippany, NJ 07981
Phone: (973) 921-0300

Follow Us