Wait. This Is Arbitration? I Thought It Was Mediation.

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Early in the movie, My Cousin Vinny, Joe Pesci's character, Vincent Gambini, tells the judge that he has significant experience trying cases in New York. The judge does some research and learns that there is no record of anyone named Vincent Gambini trying any cases in New York. Gambini then does what one should never do, he lies to the judge. He tells the judge that he tried cases under the name Jerry Gallo. Gambini thinks this is a brilliant move because Jerry Gallo is a notable New York lawyer who Gambini has read about in the papers. Unfortunately for Gambini, however, he never read the articles about Jerry Gallo's death. Naturally, the judge finds out that Jerry Gallo is dead, and confronts Gambini, which leads to the following exchange:

I imagine this may have been similar to what the defendant in Marano v. The Hills Highlands Master Association, Inc. said when it received an unfavorable arbitration award. "Did you say binding arbitration? No. We were participating in non-binding mediation. Not arbitration." Things worked out for Vincent Gambini in the movie, they did not work out so well for defendant in Marano. 

In Marano, plaintiffs owned a unit in a condominium development. The relationship between unit owners, like plaintiffs, and the association was governed by the association's bylaws, which "arguably include[d] an arbitration provision." So, after a dispute developed between plaintiffs and the condominium association over a "flooding condition" in their backyard, plaintiffs' attorney wrote to the association's attorney to demand arbitration. He received no response, so he wrote again and stated that unless the association's attorney confirmed that he was "in the process of arranging for the arbitration proceeding," plaintiffs would sue to compel arbitration. The association's attorney responded by disputing some of the claims in plaintiffs' letter but agreeing to participate in "ADR" (alternative dispute resolution). Several weeks later, plaintiffs' attorney again wrote to the association's attorney asking for confirmation that the parties would proceed to an "arbitration hearing," with a hearing officer who would serve "as an arbitrator." In response, the association's counsel contacted a retired judge to determine his availability and willingness to serve as "the arbitrator."

Up to this point, it appears clear that the parties were discussing arbitration, not mediation. What happened next created the confusion that sent the case down the path that would eventually land it before the Appellate Division.  

Continue reading “Wait. This Is Arbitration? I Thought It Was Mediation.”

New Jersey Supreme Court Considers Condominium Association’s Ban On Window Signs

 by:  Katharine A. Muscalino

On September 1, 2010, a three-judge panel of the New Jersey Appellate Division struck down, as an unconstitutional limitation on free speech, a condominium association’s governing documents’ prohibition on posting signs in unit windows, with the exception of a single “For Sale” sign.  On October 24, 2011, the New Jersey Supreme Court heard argument on these issues, and is expected to issue an opinion either upholding the Appellate Division’s rejection of such restrictions or overturning the Appellate Division and finding that such signs may be banned.  Because many Associations’ governing documents include bans like the one at issue in Mazdabrook, the New Jersey Supreme Court’s opinion could have a wide-ranging impact, and should likely inspire condo associations to review their by-laws so as not to run afoul of its holding.

 

Continue reading “New Jersey Supreme Court Considers Condominium Association’s Ban On Window Signs”

Good News For Condo Collections

by:  Katharine A. Muscalino

Collections have become an area of increasing concern for condominium associations, as unit owners struggle to pay their maintenance fees on time and in full during the current economic downturn.  As unit owners’ debt continues to rise, associations are left with few options to collect: a lien on the unit and a lawsuit against the individual unit owner.

Many condominium associations have been frustrated in their attempts to collect from a unit owner individually, as Special Civil Court judges are often sympathetic to delinquent unit owners, offering extensions, scrutinizing certifications of amounts due, and reducing or eliminating the association’s ability to collect attorneys’ fees.  Grandview at Riverwalk Port Imperial Condominium Association is one such association, but its frustrations were recently assuaged on appeal in Grandview at Riverwalk Port Imperial Condominium Association, Inc. v. Han

In this case, the association sued a unit owner for failure to pay maintenance fees, only to have the Special Civil Court inexplicably deny their demand for attorneys’ fees.  The Association appealed the judge’s rejection of their demand and the Appellate Division reversed the Special Civil Court, finding that the fees were authorized by statute and by the Association’s governing documents.  Noting that the unit owner had not objected to reasonableness of the attorneys’ fees and that the Appellate Division itself perceived “nothing unreasonable” in the attorneys’ fees, the Appellate Division remanded the matter to have the judgment amended to reflect the attorneys fees.