Jury Rules Against Home Improvement Contractor Over Sandy Contract

Nearly four years after Superstorm Sandy made landfall in Ocean County, NJ, a jury has rendered its first verdict in favor of  homeowners against a home improvement contractor repairing Sandy damage.  In August, an Ocean County jury sided with the homeowners in their suit against Price Homes Group (PHG).  PHG was a fledgling home building contractor that, like many others, spawned in the aftermath of Superstorm Sandy.  The entity was formed 100 days after the most powerful storm to affect the Jersey coast made landfall.  The storm caused billions of dollars in property damage as a result of wind and flood.  Despite being newly formed, PHG enjoyed the illustrious status of being a “qualified builder” under the State’s RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) Program administered by the Department of Community Affairs (DCA). Under the RREM Program, the DCA checked whether a contractor was a registered Home Improvement Contractor licensed to do business in New Jersey, and whether it had been debarred from doing business with the government.  By now many have heard horror stories of the RREM program.  RREM later allowed homeowners receiving such grants to select their own contractors.  Sadly, in spite of a trial victory for the homeowners, whether they will ever see any of the $300,000 in damages awarded against PHG remains to be seen.  The three principals of the company have declared bankruptcy and PHG vows to appeal the verdict.  There are at least fifteen other such suits against PHG.

Whether embarking on a home improvement project as a result of Sandy or otherwise, the lessons of the PHG experience are apparent to homeowners and contractors alike.  As shocking as it may seem, many enter into home improvement projects, often as big or bigger than the home purchase itself, without a written contract that identifies the scope, cost and timing of such a project, and do so without checking to see whether a contractor is a registered Home Improvement Contractor. The NJ Consumer Fraud Act (CFA) requires that any residential home improvement agreement over $500 must be in writing, as well as any change orders, and include:

  • Start and completion date
  • Agreed price
  • Contractor’s HIC number
  • Three day right to rescind with full return of deposit
  • Copy of Contractor’s general liability insurance declarations page
  • The toll-free number of the NJ Division of Consumer Affairs.
A contractor that fails to comply with the CFA runs the risk of exposing itself to a consumer fraud action, in addition to the standard breach of contract action by a homeowner that the work does not meet the terms of the contract and is not completed in a workmanlike manner, and/or consistent with applicable building codes.  Any contractor found to have caused an ascertainable loss as a result of a “deceptive business practice” and to comply with the Act’s requirements, runs the risk of not only damages for  the costs of repairs to properly complete the project, but also treble (tripling of) damages, attorney’s fees and costs of suit.  There is New Jersey case law that further allows such damages to be assessed against the principals or officers of a corporation (“pierce the corporate veil”) if actual participation in such deceptive business practice by the principal or corporate officer is shown.  While budgets may be strained by any contemplated home improvement project, it behooves a homeowner to have a consultation with a qualified attorney before blindly wading into the treacherous waters of home improvement.  If you earn your living as a New Jersey Home Improvement Contractor, you must be aware of your legal obligations. You must register with the Division of Consumer Affairs consistent with the Contractor Registration Act and be sure your contracts are Consumer Fraud Act compliant, otherwise your next project may be “on the house”.  A home improvement contract that fails to comply with the CFA is deemed void and the contractor’s only right to receive compensation for such work and materials is the value of such services and materials provided (quantum meruit) without any profit.  It has been held that even quantum meruit recovery is questionable because the purposes of the CFA are to punish the wrongdoer and deter others from such conduct.Brian McAlindin, Esq. is a Partner at Bathgate, Wegener & Wolf, PC and a Certified Civil Trial Attorney with expertise in construction litigation on behalf of both homeowners and contractors, as well as personal injury actions.

What Is Guardianship In New Jersey and How Does It Work – Part 2 of 3

In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series What Is Guardianship In New Jersey and How Does It Work, we discuss what will happen at the court hearing.

 A.        Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application.  In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it.  The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se.  The next of kin or interested party is permitted to challenge both  the requested declaration that your loved one is  mentally incompetent and your appointment as Guardian.  Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her  declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship. 

B.        Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending.  The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian.  The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court.  If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.

C.        Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one.  The Court appointed attorney is not free.  He or she is usually paid from the assets of the alleged incompetent.  This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament.  Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge.  Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.

D.        Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge  will make his decision based upon the papers presented to him.  However, if the Guardianship Application is contested, during the initial hearing the Judge will consider:  (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application.  Usually, live witness testimony is not presented to the Court during the initial hearing.  In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney.  Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application.  If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court.  At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent.  Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.

E.        Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e.,  insurance policy, that must be obtained by the person appointed as Guardian.  The amount of the bond is generally based upon the value of the assets of your loved one.  The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium.  The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.

F.        Conclusion
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application.  This may cause tension and misunderstandings between you and your loved ones if you make the application on your own.  Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized.   Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application.  In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options at 732-363-0666.

Photo by Luwadlin Bosman on Unsplash

What Is Guardianship In New Jersey and How Does It Work – Part 1 of 3

In the past ten (10) years, the number of Guardians appointed in the State of New Jersey has increased significantly.  According to data compiled by the New Jersey Courts, Guardianship appointments increased from less than 2,000 per year between 2006 and 2008 to 2,600 in the year 2014 and that number continues to rise.  As the elderly population grows and as people become more aware of the necessity to have estate plans and other protections in place for their special needs child, it is anticipated that the number of Guardians appointed will continue to rise.  To begin our discussion of Guardianship, let’s first define “Guardianship” and then present a few common scenarios which people may encounter with their loved ones that may signal the need for a Guardianship.

Guardianship is a legal process appointing a ‘competent adult’ (Guardian) to be responsible for the care, custody and control for a ‘vulnerable or incapacitated person’ often referred to as a (ward).

You notice that your elderly loved one’s memory is beginning to fail.  Your loved one has always been very independent and insists on handling everything on her own.  Unfortunately, your loved one has forgotten to pay a bill or two.  So, when you make your weekly visit, you look over your loved one’s checkbook and help your loved one reconcile her bills.  Gradually you become more involved in your loved one’s finances and start to sign her name to checks.  You only sign her name to checks with her approval and you never sign checks made out to you or your family.  Is this legal?
ANSWER: No. As good as your intentions may be, it is never appropriate to sign your loved one’s name.  Instead, you should sign your name as  your loved one’s Agent under a Power of Attorney or as a Court Appointed Guardian or Conservator for your loved one.
SCENARIO NO. 2:      
Your autistic child is developmentally delayed and just celebrated his 18th birthday.  Because your child is developmentally disabled, as his parent, do you have an automatic right to handle his finances, access his medical records and make health decisions on his behalf?
ANSWER: No.  Once a child turns 18 years old, parents no longer have a legal right to access their child’s medical records or to make health care decisions for the child.  This is true even if the child is mentally disabled and lacks the cognitive ability to make such decisions.  In these circumstances, the parents should apply for a Guardianship of their disabled child once that child reaches 18
​Your mother was diagnosed with Alzheimer’s dementia last year.  At first it wasn’t too bad, but now your Mom confuses the identity of her son, sometimes mistaking him for her husband who passed away two (2) years ago.  Mom also frets that she doesn’t have enough money to pay her monthly Homeowners Association dues or to last her in case she gets sick.  In fact, she has over $1 million in the bank.  You find a Power of Attorney on the internet, print it out and have your mother sign it naming you as her Agent under the Power of Attorney.  When signing the Power of Attorney, Mom says that she doesn’t understand all of that legal jargon but as long as it will help protect her money, she’ll sign it.  You witness the signature and have one of your friends notarize the document.  Is the Power of Attorney valid?
ANSWER: No.  While the Power of Attorney document meets the requirements of NJSA 46:2B-8.9 and NJSA 46:14-2.1 that it be signed by the person granting the authority, bear at least one witness signature and is notarized, for a Power of Attorney to be valid, both of the following conditions must also be met:

    1. The person signing the Power of Attorney must be at least 18 years of age, and
    2. The person must have mental competency sufficient to enter into a contract, meaning that the person must understand the nature, extent, character and effect of the act which the person is performing.

It is questionable whether condition 2 (having sufficient mental capacity to enter into a contract) is met.  Therefore, in this scenario, you should first consult with a physician who can provide a mini mental status exam or other examination to determine Mom’s  mental capacity.  Depending on the results, Mom may enter into a Power of Attorney, or a Guardianship may be required.  Because of the potential complexity of this scenario, it is recommended that you consult with an attorney familiar with elder care law and estate planning.

​You believe that your college-aged child is not being forthright with you regarding her health.  You contact her doctor to speak with her regarding your daughter.  When you call the office, the office staff is “rude” and refuses to discuss your daughter’s health saying that the HIPAA laws do not allow it. You insist that, as her parent and as the person who is paying for the health insurance, you have a right to know about your child’s health.  The medical office still refuses you access to your daughter’s medical records and refuses to allow you to speak with the doctor.  Do you have a legal right to see your daughter’s medical records?
ANSWER: No.  As in Scenario No. 2, even though you are the parent and even if you are the one paying for the health insurance, once a child reaches eighteen (18) years of age, a parent is no longer automatically permitted to access the child’s medical records or make health decisions on behalf of his or her son or daughter. If the child is of legal age (currently 18) and is mentally competent, then the child may sign a General Power of Attorney and/or a Healthcare Power of Attorney that grants the parent permission to access the child’s finances and/or medical records under certain circumstances.  If the child is of legal age, but is mentally incompetent, then a Guardian will need to be appointed.
If your loved one does not have the mental capacity to sign a Power of Attorney, then you should consider making an application to the Superior Court of New Jersey, Chancery Division, Probate Part to be appointed Guardian of your loved one.  While the thought of getting a court involved in your family’s affairs can be overwhelming and daunting, Pamela M. Snyder, Esq. and the attorneys at the Bathgate, Wegener & Wolf, P.C.  are available to discuss a Guardianship action and provide their assistance during the application process.

  1. Mental Incompetency
    A Guardianship for an adult will only be appointed if the Court declares your loved one mentally incapacitated.  Therefore, if there is any question regarding your loved one’s mental capacity, before you begin to expend thousands of dollars for a Guardianship, you may want to ask his or her regular family physician or neurologist to perform a mini mental status exam.  If your loved one scores well on this exam, then an application for Guardianship may be denied and your loved one may have the mental capacity necessary to sign Power of Attorney and other estate planning documents.  By first obtaining an informal exam of your loved one, you could ultimately save thousands of dollars that could be used towards your loved one’s comfort and health care.

    If there is no doubt that your loved one’s mental capacity is significantly diminished, or if your loved one does not perform well on the mini mental status exam, then before applying to be Guardian of your loved one, you should have your loved one examined by a physician familiar with mental competency exams and a licensed psychiatrist or psychologist.  (New Jersey Court Rule 4:86-2(b)).  The physician and psychiatrist or psychologist must each author a report.  That report must contain the medical professional’s expert opinion regarding whether your loved one is mentally incompetent, whether he or she can govern and handle his or her financial affairs and whether he or she can make decisions regarding her health, medical treatment and issues regarding well-being.  When choosing a physician, psychiatrist or psychologist, it is important to select one familiar with the requirements for Guardianship application.  There will likely be a fee for the examination and report that will not be covered by Medicaid, Medicare or private health insurance.  These fees can be as high as $1,200.00 or more for each medical professional.

  2. Verified Complaint to Have Your Loved One Declared Mentally Incompetent and to Have a Guardian appointed.
    Within thirty (30) days of the medical and competency exam, you must make the application to the Court to be appointed Guardian of your loved one.  (New Jersey Court Rule 4:86-2(b)).  The application must be in the form of an Order to Show Cause and a Verified Complaint.  The current filing fee for the Order to Show Cause and Verified Complaint is $200.00.  This fee is usually paid to the Surrogate of the County in which the alleged incompetent person resides, not the Superior Court of New Jersey.   If the alleged mentally incompetent person cannot be examined before you submit your application to the Court, the Guardianship applicant may request permission from the Court to force an examination of the alleged mentally incompetent and/or grant an extension of time to submit the report.

    When preparing an application to be appointed Guardian of your loved one, the application can seek (a) plenary or Guardianship, (i.e., full or complete uardianship of your loved one), (b) Guardianship of  the person only or (c) Guardianship of property only.  Subject to restrictions imposed by the court, a plenary guardianship would allow the person appointed as Guardian full access to your loved ones health records and finances, and would allow the Guardian to make financial decisions, health care decisions and other decisions regarding for the well-being of the loved one.  This could include authority to do both Medicaid and/or estate planning for the incompetent person.   Guardianship of the person limits the Guardian’s authority to those decisions regarding the Guardian’s health and well-being.  Guardianship of the property limits the Guardian’s power to handling your loved one’s finances, income and assets.

    If you are unsure which type of Guardianship is appropriate in your loved one’s particular situation, you should consult with an attorney experienced in the areas of Guardianship, estate planning, special needs law and/or elder care law.

  3. Factors the Court Will Consider.

When reviewing the Guardianship application, the judge will consider the following factors when making his or her decisions (a) whether to declare your loved one mentally incompetent such that your loved one cannot govern his or her financial affairs and cannot make health decisions on your behalf, and (b) who to name as Guardian or your loved one.  Therefore, these items must be included in your submission to the Court:

    1. ​Name, address, birthdate/age  of alleged mentally incompetent person,
    2. Living situation of alleged mentally incompetent person,
    3. Known Assets of alleged mentally incompetent person,
    4. Known income of alleged mentally incompetent person,
    5. Name of person(s) seeking Guardianship and relationship of that person to the alleged mentally incompetent person,
    6. Name of person(s) having the same or superior degree of relationship to the alleged mentally incompetent person (this may or may not be the same as the names of the next of kin of the alleged mentally incompetent person),
    7. List of government services, i.e., Medicaid, Medicare, DDD benefits, Housing Assistance, Utility Assistance, etc. which the alleged mentally incompetent person is receiving,
    8. Health or mental issues which the alleged incompetent suffers,
    9. Historical examples showing why the alleged mentally incompetent person needs a guardian to handle his or her financial affairs and to make health care decisions on his or her behalf,
    10. Brief synopsis of reports by physician and psychiatrist or psychologist,
    11. Applicant’s willingness to serve as the Guardian.
If you or a loved one needs assistance managing financial affairs or you need to make medical decisions and access to health care records on behalf of your loved one, both a Power of Attorney and a Guardianship can accomplish that goal.  A Power of Attorney can only be signed and be effective if the person granting the authority is eighteen (18) years of age or older, and has the mental capacity to enter into a contract.  If you or your loved one lacks the necessary mental competency, then it will be necessary to submit an application to the Court to have a Guardian appointed to handle your or your loved one’s financial affairs and matters pertaining to your or your loved one’s health care and well being.  In Part 2 of this three (3) Part series, we will look at what happens after the initial application for a Guardianship is submitted to the Court.If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options at 732-363-0666.

Land Preservation Is A Critical Public Necessity In New Jersey

The 2015 Annual Report of the Monmouth Conservation Foundation lists 64 sites it has helped to preserve as open space. William J. Wolf, a partner with the law firm of Bathgate Wegener & Wolf, P.C. represented the owners of 5 of those sites:


  1. Langeveld Dutch Bulb Company Tract, Freehold Twp. – Completed 1990, 375 acres;
  2. Hauser Farm, Aberdeen Twp. – Completed 2012, 22 acres;
  3. Sacco Trust, Upper Freehold Twp. – Completed 2012, 55 acres;
  4. Fariello, Aberdeen Twp. – Completed 2014, 33 acres; and
  5. Fariello 2, Aberdeen/Marlboro Twps. – Completed 2015, 30 acres.

​The preservation of open space is a critical public necessity particularly in a densely populated state such as New Jersey where land for open space and recreation is a precious commodity. Because of the current regulatory climate it might not be feasible to develop land that, in the past, would have been converted to homes and various types of commercial activities. Preserving land for recreation and open space constitutes an enterprise that melds those seemingly disparate objectives. Open space preservation and conservation permits the public to benefit by preserving land while simultaneously allowing property owners to monetize their land, and, sometimes, to enjoy a variety of tax benefits and advantages.

Assisting a client who wishes to participate in a land preservation or open space project entails unique skills and experience. Such a project requires a lawyer to have a background in environmental law, regulatory permitting, land development, land valuation and taxation. The land preservation attorneys of BWW have the multi-faceted background and the experience to assist clients who want to participate in a land preservation or open space project.

For many years the land preservation attorneys of BWW have assisted clients in dealing with numerous governmental entities and private organizations to preserve thousands of acres of land as open space. Those preservation projects have included the State of New Jersey, The Port Authority of New York and New Jersey, Monmouth County, Ocean County, New York-New Jersey Baykeeper, Monmouth Conservation Foundation and The Trust for Public Land. Through the efforts of the land preservation attorneys of BWW thousands of acres of land have been preserved as open space or are undergoing consideration for preservation.

Some land preservation, conservation and open space projects involved acquisition by public entities or private foundations. Other matters included easements or revised zoning to permit clustered development balanced by preserved acreage and farmland preservation. As a result of these endeavors, BWW land preservation attorneys have generated millions of dollars for our clients while simultaneously preserving thousands of acres of land as open space.

The land preservation attorneys at BWW have also had involvement with evaluating the potential of linking land preservation, open space and farming with group homes for autistic residents. This unique concept melds the desire to preserve farmland with the dignity associated with independent living.

BWW land preservation attorneys have been representing clients in land preservation, conservation and open space matters throughout the State of New Jersey including clients with land in Monmouth County, Ocean County and elsewhere.

Additional information regarding Mr. Wolf’s representation of clients in land preservation transactions and information regarding the background of the Bathgate Wegener & Wolf land preservation attorneys who have represented clients throughout New Jersey including Ocean County, Monmouth County and Sussex County is available here. 

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America. Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

Photo by Valeriu Bondarenco on Unsplash

When Losing Family Trust Equals Losing Family Fortune

There is no emotional equivalent to the loss of your parents.  But when you couple the sting of that loss with the realization that you’ve been disinherited from their estate, your sadness can quickly turn to anger, resentment and a sense of betrayal. 

A recent decision from the New Jersey Appellate Division in a case titled In the Matter of the Estate of Kenneth E. Jameson, Deceased, addressed the issue of child disinheritance.  Friction between the now deceased parents, Kenneth and Yvonne, and their daughter, Stacy, began in 1982 when the parents discovered Stacy had become friends with Marc, a Jewish man whom she met in college.  The friction intensified when that friendship progressed to a committed relationship.  Upon learning of the relationship, the parents allegedly forbade Stacy from talking, socializing and having any contact with Marc because he was Jewish.

When Stacy refused to end her relationship with Marc, her parents cut off all financial support they had been giving and advised her that she was no longer welcome in their home.  Thereafter, the parents visited Stacy from time to time, but their conversations during those visits inevitably always turned sour.  According to court documents, during one visit, Kenneth backhanded Stacy hard enough to give her a black eye.  On another visit, Kenneth threatened to physically harm Marc.

In 1987, Kenneth and Yvonne executed separate Last Wills and Testaments.  Article 4 of Kenneth’s Will contained a provision that stated the following:

As an extremely loving and devoted parent, I found that the love, care and concern which I lavished on my daughter was not acknowledged or returned in any way by my daughter.  Instead, she acted toward me with selfishness, manipulation, cruelty, and with abusiveness.  My daughter … blatantly lied to and about me, acted with hatefulness and vindictiveness towards me, and was abusive and physically violent towards me.  [Stacy’s] shameful and hateful behavior towards me and her mother has brought me to my carefully considered decision that [Stacy] is to receive absolutely nothing from my estate.

Stacy and Marc married in 1990.  In response to an invitation to the wedding, Kenneth allegedly told Marc that “they would not attend the wedding because they would never endorse their daughter marrying a Jew.”  Stacy and Marc now have three children.  Kenneth refused to meet them.Kenneth died in 2014.  His Will was admitted to probate and Stacy was provided a copy of it.  Stacy and Marc filed a Complaint against Kenneth’s estate claiming in part that the statements contained in Article 4 of the Will were “totally inaccurate and completely fabricated.”  The Complaint alleged, among other things, that Kenneth’s Will was invalid because it was the product of undue influence, that it was invalid because of religious discrimination, and that the Will was libelous as to Stacy.  In response to the Complaint, Kenneth’s estate filed a motion to dismiss for failure to state a claim pursuant to R. 4:6-2(e).  The trial court heard argument on the motion and entered an order dismissing the Complaint.  Stacy and Marc appealed.

The Appellate Division affirmed the trial court’s dismissal of the Complaint.  Regarding the allegation of undue influence, the Court reiterated that persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice to establish undue influence.  The influence must be such that it destroys the testator’s free agency and causes him to dispose of his property not by his own desires, but instead by the will of another, which the testator is unable to overcome.  The factual record did not support such a finding.

Regarding the allegation of religious discrimination, the Court concluded that New Jersey’s Law Against Discrimination does not apply to testamentary dispositions, and that even if the disinheritance was based on an unreasonable discriminatory prejudice, that is still not a ground to invalidate the Will.  The Court, likewise, was not persuaded by Stacy’s argument that Article 4 of the Will was libelous.  Libel occurs when a person makes a defamatory statement that is false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule.  A cause of action for libel arises upon the “publication” of the defamatory statement.  Stacy argued that admitting the Will to probate was akin to publication.  The Appellate Division disagreed. In the end, Kenneth’s Will was held to be valid and its provisions were enforced.

Bathgate Wegener & Wolf, P.C. has extensive experience in both defending the validity of testamentary documents on behalf of an Estate and challenging them on behalf of disinherited family members or unfairly treated beneficiaries. Please contact Ryan S. Malc, Esq. at 732-363-0666 if you have a question regarding the validity of a Will, Trust or other testamentary document.

Photo by Melinda Gimpel on Unsplash

Moving Children Out Of New Jersey By The Custodial Parent

​Are you seeking to move out of New Jersey with the children, but your ex-spouse will not allow the move?  Or, are you seeking to prohibit your ex-spouse from moving out of New Jersey with the children?  In New Jersey, if the non-custodial parent does not consent to the move, the custodial parent must obtain a Court Order allowing the move.

The current prevailing case on this matter when the parties do not have a shared parenting arrangement is Baures v. Lewis, 167 N.J. 91 (2001).   The custodial parent seeking to move must first make a prima facie showing that the move is in good faith and will not be detrimental to the child.  After the moving party has produced sufficient evidence to make this prima facie showing, the non-custodial parent contesting the move has the burden of showing that the move is not in good faith or is detrimental to the child.

The Supreme Court listed the following factors relevant to the analysis of whether the move is in good faith and will not be inimical to the child:

The reasons given for the move;

  • The reasons given for the opposition to the move
  • The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting or opposing the move
  • Whether the child will receive education, health, and leisure opportunities at least equal to what is available here
  • Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location
  • Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child
  • The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed
  • The effect of the move on extended family relationships here and in the new location
  • If the child is of age, his or her preference
  • Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved without his or her consent until graduation
  • Whether the noncustodial parent has the ability to relocate
  • Any other factor bearing on the child’s interest.
This standard does not apply to true shared residential parenting arrangements.  When the parties have a shared parenting arrangement, the standard that applies, which will be posted in a future blog on this website, is changed circumstances and best interest of the child.

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Talcum Powder and Ovarian Cancer: Juries Award $72 million and $55 million

This June, following a three week trial, a jury determined that Johnson & Johnson’s (“J&J”) talcum powder products caused a Missouri woman’s ovarian cancer and awarded her $55 million.  J&J is appealing the verdict.  In February 2016, another Missouri jury reached a verdict against J&J and awarded $72 million to the family of a woman who died of ovarian cancer.

Closer to home, hundreds of women who used baby powder products containing talcum powder for feminine hygiene and have been diagnosed with ovarian cancer have filed lawsuits in New Jersey.  The plaintiffs in these cases allege fraud, negligence, conspiracy and failure to warn about the cancer risks of talc against J&J, Imerys Talc America (the company that mines the talc and distributes talc to J&J) and Personal Care Products Council (the trade association responsible for representing the interests of the talc industry).

In November 2015, the New Jersey Supreme Court centralized these talc based personal injury claims in Atlantic County so that all cases can be managed by one judge.  These cases center on the connection between perineal use of talcum powder and ovarian cancer in women.

The New Jersey Court website explains that talc: is a mineral mainly consisting of the elements magnesium, silicon and oxygen.  Talcum powder is made from talc.  It absorbs moisture and helps cut down on friction.  It is used in cosmetic products such as baby powder and adult body powders.

​See http://www.judiciary.state.nj.us/mass-tort/talc-powder/index.html)  Talc is the primary ingredient in Johnson’s Baby Powder and is one of the main ingredients of Shower to Shower powder.  These products have been marketed to women for many years as “safe” products for use on all body parts to maintain “soft” and “fresh” skin.

In 1971, a study conducted by Dr. W.J. Henderson found talc particles in ovarian tumors, indicating a possible link between talcum powder and ovarian cancer.  In 1982 Dr. Daniel Cramer conducted the first epidemiological study which demonstrated that women who regularly used talcum powder on their genital areas had a 92% increased risk of ovarian cancer.  Since then, more than 20 additional studies have examined the causal link between talcum powder and ovarian cancer.  All of these studies have shown an increased risk of ovarian cancer among women who use talc in the perineal region.

Even after all of these studies, J&J has not placed warnings on its Baby Powder and Shower to Shower products.  Despite J&J’s knowledge of the years of scientific evidence demonstrating an increased risk of ovarian cancer associated with perineal use of talc, J&J refuses to take any preventative action.  Imerys placed a warning on the wholesale talc supplied to J&J beginning in 2006, but continued to sell the talc to J&J when it knew the intended use was for a product which could be very dangerous when used repeatedly for “personal hygiene”.

If you or someone close to you has developed ovarian cancer and you believe it may be due to personal use of Johnson & Johnson Baby Powder or Shower to Shower talcum powders, you may be entitled to significant compensation.  Please contact our Personal Injury/Products Liability department at 732.363.0666, which is managed by senior partner, Edward B. Kasselman, Esq., for a free consultation.

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Foreclosure Laws In NJ: Residential vs Non-Residential Mortgages

The purpose for your mortgage can determine whether it can still be enforced years after its due date.  Foreclosure laws in NJ treat residential mortgages and non-residential mortgages differently. A residential mortgage can become unenforceable if the lender does not move to foreclose within six years of the maturity date of the mortgage.  To render a commercial mortgage unenforceable there must be more than twenty years of non-payment and inaction by the lender.The Fair Foreclosure Act was enacted in 1995 to protect residential mortgage debtors. N.J.S.A. 2A:50-53 et seq.    In 2009, the New Jersey Legislature amended the Fair Foreclosure Act to provide clarity and address problems caused by residential mortgages which have been paid or which are otherwise unenforceable.  See Statement to Senate Number 250, NJ Assembly Financial institutions and Insurance Committee October 6, 2008.  Such unenforceable mortgages “cloud the title” for a property, casting doubt on the title as a result of the encumbrance. This cloud can reduce the value and marketability of the property because any prospective buyer will perceive that they are buying property for which good title may not be conveyed.

The 2009 amendment to the Fair Foreclosure Act sought, in part, to codify an earlier New Jersey Appellate Division holding in Security National Partners v. Mahler, 336 N.J. Super. 101, 104(App. Div. 2000), that a 20 year limitations period limits a mortgagee’s (i.e., mortgage lender) right to commence a foreclosure action, running from the date of the debtor’s default.  Prior to the enactment of this amendment, New Jersey did not have a statute of limitations addressing mortgage foreclosure actions, and courts applied a 20 year limitations period based on the common law adverse possession period.  Anim Investment v. Shaloub, F-30508-15, (N.J. Super. Ch. Div. June 30, 2016) (Slip Op. at *4).  However the 2009 amendment only addressed residential mortgages.
The statute provides:  
“An action to foreclose a residential mortgage shall not be commenced following the earliest of:

a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage;
b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, 36 years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of 30 years; or

c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage.”
N.J.S.A. 2A:50-56.1 (Emphasis added).

Therefore under this statute, for residential mortgages “there are three triggering events which commence the running of the statute of limitations period, after which a mortgage foreclosure action cannot be brought.” First is the maturity date for the mortgage.  Second is the date of recording of the mortgage. And third is the date that the debtor defaulted.  Each of those triggering events has a different applicable term for its statute of limitations to run.  The statute commands that the “earliest” date for expiration of a statute of limitations be applied.  

In a recent unpublished Chancery Division case, Judge Edward A. Jerejian (Bergen County) found that a residential mortgage with a maturity date of October 1, 1995 became unenforceable six years later on October 1, 2001. Anim, supra, slip op.  at *9.​​  1   The court found that the statute required the use of the earliest applicable statute of limitations date under N.J.S.A. 2A:50-56.1.  In addition, a 2011 unpublished Appellate Division case found that the statute of limitations elapsed in 2000 on a mortgage with a maturity date in 1994 because the six year statute of limitation under N.J.S.A. 2A:50-56.1(a) was applicable.  Garruto v. Cannici, 2011 N.J. Super. Unpub. LEXIS 1436, 2011 WL 2409912 at *1 (App. Div. June 6, 2011).

​The first question to ask when determining if a long unenforced mortgage is enforceable is whether at issue is a residential mortgage.  If yes, the mortgage is subject to the Fair Foreclosure Act.  The Fair Foreclosure Act (as well as its 2009 statute of limitations amendment) only applies to “residential mortgages”.  See  N.J.S.A. 2A:50-62.  “Residential mortgage” is defined as:

“mortgage, security interest or the like, in which the security is a residential property such as a house, real property or condominium, which is occupied, or is to be occupied, by the debtor, who is a natural person, or a member of the debtor’s immediate family, as that person’s residence. This act shall apply to all residential mortgages wherever made, which have as their security such a residence in the State of New Jersey, provided that the real property which is the subject of the mortgage shall not have more than four dwelling units, one of which shall be, or is planned to be, occupied by the debtor or a member of the debtor’s immediate family as the debtor’s or member’s residence at the time the loan is originated.”  ​N.J.S.A. 2A:5-55 (emphasis added).  

Therefore, two fundamental conditions must be met to have a residential mortgage: The mortgaged premises consists of not more than four dwelling units; and “the requisite occupation or intention to occupy exists by the debtor (or the debtor’s immediate family member) at the time the loan is originated.” 30 New Jersey Practice, Law of Mortgages, §24.9 at 254(Myron C. Weinstein)(2nd Ed. 2000).

If a mortgage does not qualify as “residential,” there are still judicially created limitations on foreclosing.  New Jersey courts have enforced a “twenty year limitation period to foreclose a mortgage” by “borrowing and applying the twenty year limitation period in certain adverse possession statutes.”  Security National Partners, 336 N.J.Super. at 106.   The Appellate Division in Security National clarified this issue by stating “a twenty year period of non-payment on a mortgage constitutes a running of the statute of limitations” Ibid.  In Security National, there is no distinction between residential mortgages and non-residential mortgages and thus the holding is applicable to all mortgages.  A later statute modified this judicially created limitation on foreclosing residential mortgages, but the twenty year limitation period adopted in Security National has not been modified and appears to still be applicable to non-residential mortgages.

Key Takeaways:

  • The statutes of limitations for enforcing residential and non-residential mortgages are different.
  • Residential mortgages may become unenforceable six years after their final maturity date.
  • Both residential and non-residential mortgages become unenforceable after 20 years of consistent non-payment, when the lender does not attempt to foreclose within that 20 years.

 1 Unpublished court opinions, such as this one, are not precedent and not binding on any court.  R. 1:36-3. However, an unpublished opinion may be persuasive secondary authority.  Ibid. In other words, unpublished opinions are instructive but not mandatory. 

Voluntary Mediation: The Key to Successful Dispute Resolution

You should be aware that voluntary mediation is the most successful form of Alternative Dispute Resolution. To say that the process produces results is a major understatement. I have been involved exclusively in this area of Dispute Resolution for the past 5 ½ years. I enjoy settling cases and revel in a success rate of 95 percent.

Most often the case settles on mediation day; however, the key to my success is that I, at no time, give up on the process. In the event the case does not settle after the first attempt at mediation, I obtain the attorneys’ cell phone numbers and as I generate settlement ideas during the progression of the case, I communicate them to the attorneys and eventually everyone sees the wisdom of settlement.In over 18 years on the bench as a Superior Court Judge, I oversaw hundreds of cases.  This experience armed me with the knowledge and experience to quickly and thoroughly evaluate the strengths, weaknesses and settlement values of each case I mediate.  My judicial experience imparted in me the importance of impartiality and cold evaluation of the dispute, which I apply to each mediation.

Many mediators fail in their attempts to “successfully mediate” because they do not have the tenacity to pursue the process to a satisfactory conclusion. In addition to tenacity, a mediator has to be creative and not afraid to express opinions about the strengths, weaknesses and settlement values of each case. The mediator must also have the capacity to show the parties that he understands their case and more importantly, their circumstances. When a party is confident that the mediator is knowledgeable and sincere, he will determine that it is in his best interests to settle at the mediator’s recommended number. While parties can and do seek unique remedies in court, most of the time the parties seek money damages to compensate them. What that means is that most cases cannot settle without a dollar amount and that is where a knowledgeable mediator comes in. A mediation that does not produce a settlement number is destined to fail.

Another key to a successful mediation is the understanding that there are two sides to every story. Lawyers are advocates for their clients, so they often become so entrenched in their own position that they cannot appreciate the other party’s view. So an impartial activist mediator is needed to bring the parties together. I often say a “good settlement” is one where both sides are “unhappy” and a “great settlement” is one where both sides are “extremely unhappy”.

Voluntary mediation requires that the parties pay the mediator. The payment, however, will be less onerous than the time, money and uncertainty in continuing litigation. Done correctly, mediation is positive and best of all if someone does not like how the mediation is progressing, he or she may just leave the table without any repercussions or explanation.

​Voluntary mediation is perfect for both plaintiffs and defendants because it gives the parties a chance to avoid excessive risk, time and litigation expense. If you are not currently mediating, I highly recommend it to you and after your first experience you will become a convert.


  • Voluntary mediation is the most successful form of Alternative Dispute Resolution
  • Never give up on the process – most often the case settles on mediation day
  • Generate settlement ideas and share them with judge and attorneys
  • A mediator has to be creative and not afraid to express opinions about the strengths, weaknesses and settlement values of each case
  • An impartial activist mediator is needed to bring the parties together
  • Voluntary mediation is perfect for both plaintiffs and defendants because it gives the parties a chance to avoid excessive risk, time and litigation expense.​

If you would like to discuss any aspect of the mediation process, call Judge O’Brien at (732) 363-0666.

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Appellate Court Clarifies Affordable Housing Obligation

An appellate court recently clarified the affordable housing obligation of New Jersey municipalities. In Re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to The Supreme Court’s Decision in In Re Adoption of N.J.A.C., 221 N.J. 1 (2015), N.J. Super. App. Div. (Fasciale, J.A.D.) addressed whether a municipality was obligated as a “separate and discrete” component of its fair share obligation to calculate its fair share of affordable housing between 1999 and 2015 (the “gap period”).  The Court held that a municipality did not have to make a separate calculation of its obligation during the gap period.  The Court ruled a municipality was not required, by the Fair Housing Act of 1985 (“PHA”), to retroactively make that calculation.  Instead, the Court concluded, the fair share obligation during the gap period should be included in a municipalities’ current obligation to provide affordable housing.  The Court reasoned that any change in the methodology used to calculate the fair share housing obligations of municipalities during the gap period should be left for consideration by the Governor and the Legislature.
William Wolf, a partner in Bathgate, Wegener & Wolf, P.C. has significant experience dealing with land use and planning issues.  Mr. Wolf currently serves as special litigation counsel for several municipalities.  Mr. Wolf has represented numerous developers and property owners.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

Patent Infringement And The Push And Pull of Patent Litigation

Patents support an estimated five trillion dollars ($5,000,000,000,000.00) of the US economy and close to forty million jobs. It is, therefore, understandable for Congress to nurture and cultivate this industry.  Similarly mindful of the importance of this industry, the United States Supreme Court decides cases that clarify rules and regulations to provide guidance in this vital area. 

Recent patent legislation and litigation have resulted in changes in the law that appear haphazard and somewhat conflicting.  The professed overall goal of congressional statutory revisions is to maintain the competitive advantage of the United States in the global economy with a “system that will support and reward all innovators with high quality patents.”1  However, Congress actually enhanced the weapons used to destroy issued patents.  The Supreme Court decides each case on the facts at hand, but recent cases have uniformly increased the potential damages that can be assessed against an infringer.  At the same time, the Court has severely limited the inventions that can be protected by a patent.While the actions above appear inconsistent, taken together these changes will enhance the U.S.’s flourishing intellectual property industry.  While not every patent will survive these changes, those that do will be much more valuable.

Congressional Change
In 2012 Congress passed the most significant change to patent law in more than half a century, the America Invents Act (“AIA”).  The headline change in the AIA brought America in line with the rest of the world by awarding patents to the “first inventor to file” instead of the “first to invent”.  More important for patent litigators, AIA revised and expanded post patent grant challenge procedures.

For patent litigators, the AIA strengthened and streamlined the post patent grant challenge procedure known as the Inter Partes Review (“IPR”). The IPR allows any party to challenge an issued patent alleging that the Patent Office should not have allowed the patent because it is not novel (i.e. invalid).  A typical IPR is filed when someone is accused of infringing a patent.  The accused infringer defensively files an IPR to challenge the validity of the patent it is accused of infringing.  After the accused infringer files its IPR allegation, it is common for the district court patent infringement action to be stayed pending the outcome of the IPR.  If the IPR finds that the patent is not novel (i.e. the patent is invalid), the law suit becomes moot and is dismissed because one cannot infringe an invalid patent.  If the patent is not invalidated at the IPR, the patent proceeds through traditional patent litigation.  In that action, the patent owner receives the benefit of the IPR determination that forbids the accused infringer from raising any invalidity defense that was raised or reasonably could have been raised at the IPR.

Used effectively, the IPR can prevent years of costly patent litigation by cutting straight to one of the three most important issues in a patent litigation; that is, whether the patent is valid.2  The AIA limits the length of an IPR to no more than eighteen months, which is a comparatively short amount of time in the often years long slog of patent litigation.  Furthermore, as long as the underlying infringement trial is stayed, no time or money is expended in discovery and motion practice.

Finally assuming a patent is upheld in the IPR, having a decision in hand on the validity of the patent removes uncertainty as to one of the three central fights in typical patent litigation. (1)Validity, 2)infringement, 3)damages).  Each side can better assess and value settlement when a third of the variability/uncertainty surrounding the litigation has already been decided.

Supreme Court Opinions
Recent U.S. Supreme Court rulings increase the likelihood of extraordinary damages being assessed for patent infringement.  In Octane Fitness v. ICON Health & Fitness, 572 US _ (2014), the Supreme Court broadened the circumstances in which attorney fees could be assessed against a losing party in a patent infringement suit.  Because patent litigation can be quite expensive, any easing of proof needed to shift attorney fees to the loser can have a huge effect. Similarly, the Court in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016) lessened the patent owner’s burdens to receive “enhanced damages” such as treble damages (actual damages multiplied by 3).  These two decisions increase the chances of a patent infringement litigation resulting in significantly large damage awards.

The Supreme Court has also severely narrowed the possible inventions that can be patented.  In 2010, the Court narrowed the subject that could be patented in Bilski v. Kappos, 561 U.S. 593 (2010).  The Court later reinforced this patentable subject matter narrowing in Alice Corp. v. CLS Bank International, 573 U.S. __ (2014), finding abstract ideas are still unpatentable even if implemented using computers. In effect, Alice severely limited the patentability of so-called “software patents”.

Taken in isolation, the changes implemented by Congress and the Supreme Court seem contradictory and at cross-purposes:  increasing the power of a patent owner by augmenting damages while enhancing power of accused infringer through expanding patent validity defenses.

However, the overall goal of the U.S. patent system is to encourage innovation.  Congress  simplified the process and shortened the time to determine whether a patent is valid through the IPR.  A patent that survives such an IPR challenge will be regarded as stronger and more valuable to the patent owner.  Patents that do not survive IPR challenge are worthless.  Similarly, by narrowing the subject matter that can be patented the Supreme Court has provided greater clarity and eliminated some uncertainty regarding the viability of patentable inventions.  Removing uncertainty as to the validity of a patent can only enhance its worth.  Finally, facilitating the award of attorney fees and other enhanced damages for patent infringement increases the value of the patent at verdict and in negotiating a settlement.  While not every patent will survive the gauntlet of obstacles put forward by Congress and the Supreme Court, the patents that do survive will be much more valuable to their owner.  By rewarding the inventor in this fashion, the U.S. strives towards its goal of encouraging innovation.

1. H.R. Rep. No. 112-98, pt.1, at 40 (2011)
2. The other two important issues in patent litigations are: 1) does the accused product infringe the patent; 2) if so, what are damages.  However if patent is invalid, there can be no infringement and no damages.

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Right to Appeal Army Corps Decision on Jurisdiction

On May 31, 2016, the Supreme Court of the United States issued its opinion in United States Army Corps of Engineers v. Hawkes Co., Inc.  That opinion has significance because it addresses a jurisdictional determination made by the ACOE.The Clean Water Act prohibits the discharge of material into the waters of the United States.  That prohibition can affect the remediation or development of property that is adjacent to water bodies or wetlands.

In order to ascertain if the movement of soil will affect waters of the United States it is necessary to obtain a jurisdictional determination from the ACOE.  A definitive decision as to whether wetlands or a water body constitute waters of the United States is binding on the ACOE and the Environmental Protection Agency (EPA) for five years.

In Hawkes the Supreme Court held that an ACOE jurisdictional determination constitutes a final administrative decision which is appealable to a Federal District Court.  That decision, thus, eliminates the requirement that before appealing an aggrieved party must exhaust all administrative remedies such as the lengthy and expensive process of applying for a permit to fill property or discharge material into waters of the United States.

William Wolf, a partner in Bathgate, Wegener & Wolf, P.C. has significant experience dealing with the ACOE.  For instance, Mr. Wolf represented a property owner that had been charged with filling wetlands and discharging material into federal waters.  That activity required legal defense of an enforcement action in the United States District Court.  Recently, Mr. Wolf, on an appeal, obtained a reversal and a remand of a decision of the ACOE denying permits for a proposed municipal marina under the Clean Water Act and the Rivers and Harbors Act.  As a result of that remand and a long administrative process the ACOE eventually issued the necessary permits for the marina.  Mr. Wolf is currently providing legal representation in relation to a commuter ferry terminal which will require permits from the ACOE.  Mr. Wolf is advising another client on a project that may also require ACOE permits.

Mr. Wolf represents property owners, developers and municipalities in all aspects of development, redevelopment and remediation involving state and federal permits.  If you have questions regarding the Hawkes opinion or ACOE permits please contact Mr. Wolf at 732-363-0666.

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