Author: LawFirm

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Ryan S. Malc, Esq. brings a successful whistleblower and wrongful termination claim

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Mr. Malc’s client, (“DJ”) was a former employee of a large New Jersey corporation (the “Club”).  He served as a Vice President and member of the Board of Directors of the Club for six years during which he provided exemplary, complaint-free service.  Nonetheless, on December 13, 2016, the Chief Financial Officer of the Club sent DJ a letter summarily terminating him as an employee “at will.”  DJ was also subsequently discharged as a member of the Board of Directors of the Club.  The termination of employment was the culmination of conduct by the Club, its president, and its chairman that violated the New Jersey Law Against Discrimination (“NJLAD”) and New Jersey common law.

In December 2013, DJ learned that the Club’s president was sexually harassing an employee of the Club.  That employee was then constructively discharged by the Club. Upon learning this information, DJ notified the Club’s Human Resources Director, who at the time reported directly to the Club’s president. The Club investigated the harassment allegation, but ultimately determined that no action would be taken because all employees of the Club reported to the Club’s president.

Unsatisfied with this response, DJ then reported the sexual harassment to the Club’s Board of Directors. The Club’s attorney then interviewed DJ to discuss the details of his knowledge.  Shortly after this interview, the Club’s president stripped DJ of all his duties and banished him from his office at the headquarters of the Club.  The Club’s president then relegated DJ to a cubicle in an overcrowded and noisy branch office, where he was left with little or no meaningful duties or authority.  

On September 18, 2016, DJ e-mailed the Club’s president informing him of his neurological condition caused by a childhood head injury that makes it difficult for him to concentrate and focus in distracting environments, such as the cubicle in the overcrowded and noisy office.  In a subsequent email, DJ provided a note from his psychologist requesting that he be allowed to work from home or otherwise be reasonably accommodated for his condition.  Instead of engaging in the interactive dialogue required under the NJLAD, the Club ignored DJ’s request for a reasonable accommodation based on his disability and then terminated his employment.   Rather than legitimately investigate the allegations of sexual harassment, put an end to the harassment, eliminate the hostile work environment, and provide DJ with a reasonable accommodation to address his disability, the Club, its president, and its chairman retaliated against DJ.  

Mr. Malc pursued a lawsuit on behalf of DJ in New Jersey Superior Court. Mr. Malc litigated the case aggressively and on the eve of trial, the Defendants agreed to pay DJ’s settlement demand.

If you or someone you know has been subjected to a retaliatory employment action, feel free to contact Mr. Malc for a free consultation.

Peter Wegener Wins Big Verdict For Point Pleasant Beach Property Owners

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Recently, Peter H. Wegener, a founding partner of Bathgate, Wegener & Wolf, tried another condemnation case. An Ocean County Jury returned a verdict of $964,000.00 in favor of our client, Bay Pointe Dunes Homeowner Association, Inc., the owners of a 489-front foot of beach in Point Pleasant Beach, on September 27, 2022. The verdict was awarded as “just compensation” for the taking by the New Jersey Department of Environmental Protection of the property rights to construct a 22-foot-high sand dune and to require public access to the beach. 

The government, relying upon its appraiser, offered $6,300.00 as its estimate of just compensation. This is the most significant verdict yet in connection with the controversial storm damage reduction project, which is scheduled to be redone, in many areas, this winter because much of the sand placed by the project has already eroded away. 

The state appraiser testified that the property rights taken for the project had only a nominal value of $1000.00 The jury valued the market value of those property rights to be $1,084,500.00, but also allowed a credit of $120,500.00 as the value of benefit from the project to the homeowners’ remainder.

As a part of its storm damage response to hurricane Sandy, the United States Army Corps of Engineers partnered with the New Jersey Department of Environmental Protection to take control of all beaches from the Manasquan Inlet to the Barnegat Inlet and construct a twenty-two-foot-high dune across the entire length of the beaches with minor exceptions in the Point Pleasant Beach and Seaside Heights / Park Amusement areas. At the same time, the government made all of that beach area, most of which was privately owned, public, granting access and use to the public at large.

Although the Homeowners Association had been allowing members of the public to buy daily badges for a number of years, the Army Corps of Engineers acknowledged that the homeowners could change that policy at any time and wanted the property rights to the recreational beach in perpetuity. Therefore, the government condemned those property rights by the power of Eminent Domain.

If you have been subjected to a government taking by means of eminent domain, please contact Peter H. Wegener, Esq. to discuss your legal rights.

Republicans for Point Pleasant Golf Outing

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On August 10, 2022, partner Brian McAlindin, who is the Republican Municipal Chairman for Point Pleasant, served as host for the annual Republicans For Point Pleasant Golf Outing at Eagle Ridge Golf Club.  Shown here with playing partner 2021 Republican Gubernatorial Candidate, Jack Ciatarrelli.  Brian’s group won the scramble format golf competition with an impressive score of 58 (-14) with a round that included 2 eagles, 10 birdies,  6 pars and no bogeys.

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Ocean County Mortgage Attorney

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Bathgate, Wegener, & Wolf Partner, Ryan S. Malc, Esq., successfully represented a private mortgage lender in a long battle to recover the balance due on a mortgage that went into default in 2006, just two years after the loan was given.  Over the course of 16 years since the loan went into default, the client made several attempts to collect the overdue balance, including the retention of two other law firms.  In January 2022, the client finally came to Mr. Malc for assistance.  Mr. Malc sent a demand letter to the debtor, followed by a foreclosure complaint.  In just 5 months, through decisive litigation and negotiation strategies, Mr. Malc was able to recover the full balance due on the defaulted mortgage, which amounted to over $350,000.00.  Mr. Malc also recovered all his attorneys’ fees from the debtor.

If you are a borrower having trouble with your lender, or a lender having trouble with your borrower, contact Ryan Malc at 732-363-0666 Ext 254, or send him an email at rmalc@bathweg.com..

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Ocean County Medical Malpractice Attorney Wins Settlement

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The Honorable Thomas E. O’Brien, P.J.Cv. (ret) of Ocean County, settled a medical malpractice case on February 2, 2022 for the sum of $350,000.00.  A doctor specializing in pediatric medicine while working at a hospital emergency room treated a 10-year old plaintiff for severe pain he was experiencing in his left hip as a result of being involved in a competitive wrestling match.

On the day of his injury, he arrived at the ER at approximately 5:00 p.m.  The defendant doctor examined him, took a history, and read a regular x-ray as “normal” and then discharged him at approximately 7:00 p.m. with a diagnosis “groin pain”.  The next day plaintiff’s pain was so bad that he consulted with his primary care doctor who immediately directed him to a Board Certified Orthopedic Surgeon.  The Ortho immediately diagnosed plaintiff with a “dislocated left help”.  The Ortho then reduced the dislocation after ordering and reading a more appropriate “frog leg” x-ray that led to him making the quick and correct diagnosis of “hip dislocation”. 

The plaintiff claimed that the improper diagnosis by the defendant and a 24 hour delay in receiving proper treatment caused him to suffer avascular necrosis in the left hip joint. The plaintiff endured several months of pain, PT, and wheelchair use before and enduring a second open surgery involving decompression of the left hip necrosis. A further consequence of the delay in treatment makes plaintiff, now 14, more subject to further necrosis for which he must be checked every 6 months and a possible candidate in the future for a “total hip replacement”.

The plaintiff’s medical expert opined that the defendant ER doctor deviated from the accepted standards of medical care imposed on an ER doctor.  It is interesting that even the defense expert ER doctor opined that the defendant misdiagnosed the injury, that the 24 hour delay caused plaintiff additional injury, a second surgery and future medical complications.  The defense expert only asserted that the plaintiff’s recovery was “good”.  There were no liens affecting this settlement.  The settlement now only needs to be approved at a “Friendly Hearing” by the court.

Judge O’Brien mediates all types of cases and would be most happy to help all litigants resolve their cases.

For guidance on your specific legal issue, contact Thomas E. O’Brien at 732-363-0666 Ext 223, or send him an email at tobrien@bathweg.com.

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Motorcycle Accident in NJ Settled For $1,250,000

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The Honorable Thomas E. O’Brien, P.J. Cv. (ret.) of Ocean County settled a motorcycle accident case on January 26, 2022 for $1.250,000.00.  Plaintiff suffered a left mid tibia displaced fracture of his left leg that was repaired with an open reduction internal fixation surgery. He also had four (4) toes on his left foot repaired with pins.  Repair of his left ankle open wound was partially effectuated after four (4) plastic surgeries. The ankle wound remains unhealed to this date since plaintiff is a diabetic. He also suffered a mildly displaced left clavicle fracture.  The 60-year old plaintiff handyman is now unable to work.

The liability portion of the case was originally in dispute, but a thorough review of the police report and traffic light sequencing revealed that while the defendant/operator did see two (2) green lights thinking he had the right-of-way, there was a controlling green left-turn arrow that had not activated hence giving the motorcycle operator the right-of-way.  So, when the defendant proceeded to make the left-hand turn through the intersection the motorcycle was unable to stop and crashed into defendant’s car with the plaintiff being thrown ten (10) feet into the air and on to the roadway.  Thankfully, plaintiff only suffered lower extremity injuries because he was wearing a helmet.

Defendant was insured with both a primary policy of $300,000.00 and an excess policy in the amount of $1,000,000.00.  The plaintiff’s settlement reflected his recovery for pain and suffering, loss wages of approximately $82,800.00 and medical expenses.  Medical expenses were incurred in the amount of $3,840,451.35.  However, plaintiff’s personal automobile insurer paid $250,000.00 in PIP benefits towards the medical expenses and after fee scheduling the remaining and outstanding medical expenses were reduced to $362,000.00.

For guidance on your specific legal issue, contact Thomas E. O’Brien at 732-363-0666 Ext 223, or send him an email at tobrien@bathweg.com.

Life Insurance

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Bathgate, Wegener & Wolf, P.C. recently represented the beneficiary of a life insurance policy. Upon the death of the insured, the life insurance carrier refused to pay the death benefit to the beneficiary. Plaintiff filed suit, seeking entitlement to the death benefit. Through mediation efforts, Bathgate, Wegener & Wolf, P.C. was able to obtain a favorable settlement in the amount of $65,000.00 for the client.

If you are the victim of a professional negligence or an insurance carrier’s refusal to pay a benefit owed to you, Bathgate, Wegener & Wolf, P.C. has the experience, knowledge, and expertise necessary to obtain a favorable result on your behalf. Contact Daniel J. Carbone at 732-363-0666 Ext. 211, or send him an email at dcarbone@bathweg.com to discuss your case today.

what is a restrictive covenant?

Your Right to Work

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The United States is experiencing a work shortage with a record number of job openings in the market. However, despite the pandemic, most employees still prefer candidates with several years of experience and a willingness and availability to work in-person, during the evenings, and to work on the weekends.

In such a tight market, where qualified employees are in short supply, employers are relying more and more on restrictive covenants to prevent their employees from resigning their positions or from competing with their employer in the event they seek employment with a competitor.

What Is A Restrictive Covenant?

Restrictive covenants attempt to limit an employee’s ability to compete with his or her employer or to solicit business from their employer. Sometimes, restrictive covenants even limit an employee’s ability to work in the same field or in the same geographical region in the event they resign their position with their employer.

However, restrictive covenants are not absolute. In New Jersey, restrictive covenants are generally disfavored as restraints on trade and are narrowly construed by the Courts. While restrictive covenants are generally enforceable, your right to work and provide for yourself trumps an unreasonable restriction on your ability to work.   Thus, to be enforceable, a restrictive covenant must protect a legitimate business interest of the employer, cannot be unduly burdensome to the employee, and must be in the public interest. Solari Industries, Inc. v. Malady, 264 A.2d 53 (N.J. 1970).

When Are Restrictive Covenants Illegal?

For example, a restrictive covenant will likely be deemed unenforceable where it is too broad in geographical or durational scope. In circumstances where a restrictive covenant is too broad, New Jersey Courts have the ability to invalidate the restrictive covenant or to “blue pencil” the restrictive covenant. In other words, the Courts have the ability to tailor an unreasonable restriction so that it is reasonable and not unduly burdensome on the employee.

In today’s job market, employers are relying more on restrictive covenants and are more likely to enforce them through legal action than ever before. If you are being asked to sign a restrictive covenant as a condition of new employment or are already subject to a restrictive covenant and you are seeking employment with a competitor that would potentially violate those restrictions, you should proceed with caution. Daniel J. Carbone, Esq. has the knowledge and experience to advise you of your options so that you can successfully exercise your right to work without fear of legal consequence.

For guidance on your specific legal issue, contact Daniel J. Carbone at 732-363-0666 Ext. 211, or send him an email at dcarbone@bathweg.com.

NJ Legal Mediation

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On December 1, 2021 the Honorable Thomas E. O’Brien, P.J.Cv., (retired), mediated a case that arose out of a fight between two patrons in an Atlantic City bar.  At approximately 12:30 a.m., two (2) males about 30 years of age got into an argument and physical altercation.  The two were not friends but were both Atlantic City residents who were remotely acquainted. The bar had three (3) security people on duty that night.  A security guard then escorted one patron (defendant) out of the bar through the front door and instructed the other patron (plaintiff) to remain inside the bar until the other walked home.  Defendant was walking home and was on the sidewalk at the rear outside patio bar. At that point, the plaintiff ignored the instruction and left the main bar, entered the patio bar, ranting and raving and approached the rear fence adjoining the sidewalk and punched the defendant in the head.  The plaintiff then stepped back approximately seven (7) feet from the fence and launched a second attack, which was thwarted when the Defendant punched plaintiff in the face with such force that the plaintiff fell straight back and hit his head on the patio floor.  Plaintiff was unconscious for approximately 5 minutes.  Security called the police and EMT’s but before they arrived the plaintiff fled the scene.

The entire event was videoed by a patron, which confirmed, as did multiple witnesses, that the plaintiff was the aggressor.  The defendant was initially charged with aggravated assault, but the charges were subsequently dismissed.

The plaintiff then brought suit against the defendant patron  for intentional tort and the bar for negligence in that the plaintiff patron was not provided with a safe business space or adequate security.

The liability aspect of this case was extremely challenging for the plaintiff because in this intentional tort case comparative negligence of the defendant, bar and plaintiff would have to be assessed by the jury.  The plaintiff could have easily been held over 50% comparatively negligent.  The defendant patron never answered in this case and was not insured and is probably insolvent.  By this settlement, the defendant patron was dismissed from the case.

However, the damages aspect was a “slam dunk” in that the plaintiff suffered a very traumatic brain injury.  Plaintiff had a craniotomy and a catherization to remove an arterial embolism.  Plaintiff suffered typical TBI permanent injuries and aggravation of pre-existing conditions.

The case was settled at Mediation for $150,000.00. with the plaintiff being responsible to pay back a $15,000 medical lien. The bar had a $250,000.00 assault and battery, self-reducing, policy rider that necessitated a speedy resolution. Counsel quickly and wisely sought mediation in hopes of resolving the case before all was potentially lost to both litigants.  Legal and expert fees were kept to a minimum.

Judge O’Brien suggests to all litigants in considering mediation that they reflect on the realities surrounding their cases since often “half of a loaf is better than none.”  Please feel free to contact him if you want to discuss the propriety of electing mediation early in a case.  The Courts are reopening so now is the time to schedule mediations.

Contact Judge O’Brien at 732-363-0666 Ext 223, or send him an email at tobrien@bathweg.com.

NJ Commercial Debt Forgiveness

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Mr. Malc represented a client who received two commercial loans totaling $930,000.00.  The loans were insured by the Small Business Administration (“SBA”).  When the client’s up-and-coming business fell victim to extraordinary challenges, the business shuttered, and the loans could not be repaid.  Mr. Malc’s client did all it could to mitigate damages to the Bank, including selling assets to repay a portion of the debt. Despite those efforts, the Bank filed a foreclosure complaint to foreclose the mortgages that secured the two loans, and also filed a separate complaint to collect the unpaid balance of the loans.

Mr. Malc challenged both lawsuits in court and was able to hold them in abeyance while settlement discussions ensued.  Mr. Malc spent approximately two years negotiating with the lending bank, the SBA, and the United States Treasury.  With accrued interest, the bank was seeking to collect nearly $1.2 million dollars from Mr. Malc’s client.

In the end, using multiple litigation and settlement strategies, Mr. Malc was able to get the bank and the SBA to forgive the debt, release the personal guarantors, and discharge the mortgages.  With the mortgages discharged, Mr. Malc’s client was able to sell his home for a sizable profit and get out from under crippling debt.

If you are facing foreclosure or a collection lawsuit, whether it is related to residential, commercial or SBA-backed debt, Ryan S. Malc, Esq. has the knowledge and experience to guide you through that process and to assist you in achieving the best possible results.

Contact Ryan Malc at 732-363-0666 Ext 254, or send him an email at rmalc@bathweg.com.