1 NYCLA CLE I NSTITUTE NEW JERSEY BRIDGE THE GAP: DAY ONE AND TWO Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for December 15 th and December 16 th, 2014 Faculty: E. Drew Britcher, Britcher, Leone & Roth; Michael Garibaldi, Israeloff, Trattner & Co., PC; Bruce Gudin and Derek Reed, Ehrlich, Petriello, Gudin & Plaza; Alex Suslensky, Law Firm of Alexander Suslensky P.C.; Deborah Factor, Hunterdon County Prosecutor s Office This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 14.5 Transitional and Non-Transitional credit hours; 2.5 Skills; 9.5 Professional Practice.; 2.5 Ethics. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 15 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 5.1 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.
3 Information Regarding CLE Credits and Certification New Jersey Bridge the Gap December 15 and December 16, 2014 The New Jersey Board on Continuing Legal Education requires all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in to receive your course materials and receive MCLE credit. ii. iii. iv If you are taking the course for New York and New Jersey credit you must sign in on BOTH sign in sheets. In order to receive New Jersey CLE credit, you must sign your certificate at the end of the class, in the presence of a CLE program staff member. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. v. If you arrive after the course has begun, you must sign-in and note the time of your arrival on the Sign-In Sheets. Your time will be verified by the Program Assistant. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week. vi vii Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving on the Sign-In Sheet. The time of departure will be verified by the Program Assistant. In signing this sheet, you are affirming that the time you have noted on the sheet is the accurate time of your departure. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week. If you leave early and do not sign out, we will assume that you left at the midpoint of the course unless you can provide verification of course completion. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week.
5 Day One: December 15, 2014 New Jersey BRIDGE THE GAP December 15 th and December 16 th, 2014 Location: New York County Lawyers Association 14 Vesey Street New York, NY AGENDA 9:00 AM 11:15 AM Trust and Business Accounting Michael Garibaldi, Israeloff Tratter & Co., PC 2.7 NJ CLE Trust & Business Accounting 2.5 NY CLE Ethics 11:25 AM 1:25 PM How to Handle a New Jersey Landlord Tenant Eviction Proceeding Bruce Gudin and Derek Reed, Ehrlich, Petriello, Guding & Plaza 1:25 PM 2:00 PM LUNCH 2.4 NJ CLE NJ Landlord and Tenant Practice 2 NY CLE Professional Practice 2:00 PM - 4:05 PM WestLaw Next Stephanie Waschitz, Thomson Reuters 2.5NJ CLE NJ Law Office Management 2.5 NY CLE Skills
6 New Jersey BRIDGE THE GAP December 15 th and December 16 th, 2014 Day Two: December 16 th, 2014 AGENDA 9:00 AM 11:05 AM Real Estate Closing Practices in New Jersey Alex Suslensky, Law Firm of Alexander Suslensky P.C. 2.5 NJ CLE NJ Real Estate Closing Practices 2.5 NY CLE Professional Practice 11:15 AM 1:25 PM Introduction to Criminal Trial Practice in New Jersey Deborah Factor, Assistant Prosecutor, Hunterdon County Prosecutor s Office 1:25 PM 2:00 PM LUNCH 2.6 NJ CLE NJ Civil or Criminal Trial Practice 2.5 NY CLE Professional Practice 2:00 PM 4:05 PM How to Litigate Medical Malpractice Cases in New Jersey E. Drew Britcher, Britcher, Leone & Roth, LLC 2.5 NJ CLE New Jersey Civil or Criminal Trial Practice 2.5 NY CLE Professional Practice
7 Michael J. Garibaldi, CPA/ABV/CFF/CGMA, President and CEO Areas of expertise Accounting and Consulting for Law Firms and other Professional Practices such as Medical, Dental, Engineering and Architecture, and other small to mid sized closely held businesses including manufacturers, technology, wholesale/retail, construction, real estate, artists and galleries Business, Professional Practice and License Valuations Forensic Accounting Litigation Support Including Expert Witness Testimony Court Appointed neutral Expert in New York Supreme, Kings Supreme, Queens Supreme, Nassau Supreme, Suffolk Supreme, and Westchester Supreme Courts Law Firm Practice Management Consulting Accounting and Tax Planning Private Wealth Management Business and Financial Planning Professional affiliations & activities Member of the American Institute of Certified Public Accountants (AICPA) Member of the New York State Society of Certified Public Accountants (NYSSCPA) Past President and member of the Board of Directors of the NYSSCPA Nassau Chapter Candidate member of the American Society of Appraisers (ASA) Member of the Institute of Business Appraisers (IBA) Member of the Association of Certified Fraud Examiners (ACFE) ABV designation with extensive professional experience in business valuation CFF credential with significant experience in the area of financial forensics Experienced speaker and lecturer on law firm practice management, fraud and forensics, business valuation, bankruptcy and tax aspects of divorce & separation Expert witness testimony
119 Introduction To Trust & Business Accounting For Lawyers Michael J. Garibaldi, CPA/ABV/CFF/CGMA Israeloff, Trattner & Co., CPAs, PC
120 Accounting For Lawyers Attorney Trust Accounts Attorney Operating Accounts
121 Attorney s Obligations Regarding Client Funds Fiduciary Role Safeguard & Segregate Assets Notification Timely & Complete Accounting Prompt Disbursement
122 Why Is An Attorney Trust Account Different? In New York & New Jersey Dishonored Check Notices Only An Attorney Can Be A Signatory
123 NJ Court Rule 1:21-6 (b) Memorize It! Routine Audits Mandatory Reporting to the Office of Attorney Ethics
124 What Goes Into Your Trust Account? All Client Funds Maintenance Fees Interest
125 Trust Account Absolutes No withdrawals to cash No one except an attorney is a signatory Maintain complete & accurate records Reconcile bank statements & client ledgers regularly
126 Accounting Procedures Books & Records: Trust Receipts Journal Trust Disbursements Trust Ledger Book Clients Ledger: By Account Date Source Description of Deposit Date, Payee, Purpose of Withdrawal
127 Trust Accounting Forms
128 Maintain Records For Seven Years Books of Account Affecting Trust & Operating Accounts Checkbooks & Check Stubs Bank Statements Canceled Checks Duplicate Deposit Slips Copies of Bills Rendered Client Retainer & Fee Agreements Statements to Clients Showing Fund Disbursements Records Showing Payments to Other Lawyers or Non- Employees for Services Rendered Retainer & Closing Statements Filed With The Office Of Court Administration
129 You Can Be Blindsided Any Time Anywhere By Anybody
130 Three Categories of Occupational Fraud Asset Misappropriation Corruption Fraudulent Statements
131 The Fraud Triangle Motive Opportunity Rationalization
132 Common Types of Internal Fraud Pocketing cash sales Diverting business or assets Payments to fictitious vendors/employees Secret commissions & kickbacks Pre-billing clients Booking sales that are not final Altering invoices Charging personal expenses as business expenses Altering credit card receipts as business expenses
133 Additional Types of Internal Fraud Overstating revenues & assets Failure to make provision for overvalued assets Understating expenses & liabilities Failing to record or under recording liabilities Lapping Kiting Advancing loans without approval
134 The 3 Best Ways To Prevent & Detect Fraud Internal Controls Internal Controls Internal Controls
135 Are You Vulnerable? Total authority in one or two individuals Compensation linked to bonuses or short-term results Poorly paid or poorly managed employees No mechanism for or not properly addressing reports of misconduct Weak INTERNAL controls
136 Recognize the Warning Signs Employee does not take time off Possessiveness of work Living beyond their means Changes in life style Books out of balance Missing documents Delayed deposits Bank reconciliations
137 Warning Signs (cont d.) Increase in past due receivables Records not organized Customer complaints Altered check items Duplicate payments Numerous payments to the same individuals/address Need for more petty cash Checks payable to CASH
138 Warning Signs (cont d.) Low employee morale or infighting Incomplete bank reconciliations Journal entries at or near year-end Credit memos Outstanding checks on bank recs Vendor data is missing, illogical, has a PO Box matching an employees address A vendors name matches an employees initials
139 Deterring Internal Fraud Assign related duties to different people Get your bank statements unopened each month Review account activity on-line daily Request documentation before signing a check or authorizing a transaction Reconcile books & bank statements monthly Question fund transfers between accounts
140 Deterring Internal Fraud (cont d.) Secure business records Use a Lock Box Know your employees Compare employees with payroll Track credit card bills monthly Restrict on-line access to bank statements Back up information & files & keep offsite
141 Minimizing Your Exposure Don t have all your funds in one account Secure your account information & passwords Limit & monitor access to important documents & supplies Keep a list of furniture, computers & vehicles & maintain adequate insurance Communicate with your accountant! Know & communicate with your banker!
142 ACH Fraud Your Company s Name Scan Authorized Signor Your Account Information
143 Safeguards Against ACH Fraud Review and reconcile accounts on a daily basis Report any unrecognized debits to bank IMMEDIATELY Authorize bank to return unrecognized debits on the same day posted Complete a WSUPP (Written Statement Under Penalty of Perjury) where required Use ACH Debit Blocks and Filters
144 Understand The Role Of Your Accountant What Services Are They Providing?
145 HOT ISSUES IN LANDLORD TENANT PRACTICE IN NJ NYCLA CLE INSTITUTE December 15, 2014 PRESENTED BY: BRUCE GUDIN, ESQ and DEREK D. REED, ESQ. EHRLICH PETRIELLO GUDIN & PLAZA, P.C., NEWARK, NJ
146 PREREQUISITES Landlord/Tenant Relationship Lawful Premises - *Residential *Commercial Residential Landlord Registration Act NJSA 46:8-28 Commercial Premises No registration required 1, 2 & 3 Family Houses Multi-family Dwellings Lease Notice Requirements
147 COMMENCING THE CASE ANTI-EVICTION ACT (N.J.S.A. 2A: ) The Anti-Eviction Act applies to (i) residential properties if the owner (landlord) does not live there or (ii) if the owner does live there and there are more than two other rental units. SUMMARY DISPOSSESS ACT (N.J.S.A. 2A:18-53) The Summary Dispossess Act applies to all other rental or residential properties including commercial tenancies.
148 GROUNDS FOR REMOVAL OF A RESIDENTIAL TENANT pursuant to NJSA 2A: (A) NONPAYMENT RENT DUE AND OWING (B) DISORDERLY TENANT (C) WILLFUL OR GROSSLY NEGLIGENT DESTRUCTION OF THE PREMISES (D) SUBSTANTIAL BREACH OF LANDLORD S RULES OR REGS. (E) SUBSTANTIAL VIOLATION OF LEASE COVENANTS (F) FAILURE TO PAY RENT AFTER REASONABLE INCREASE (G) ABATING HOUSING OR HEALTH CODE VIOLATIONS (H) PERMANENTLY RETIRING BUILDING FROM HOUSING MARKET (I) TENANT S REFUSAL TO ACCEPT REASONABLE LEASE CHANGES (J) HABITUAL LATE PAYMENT OF RENT (K) CONVERSION TO CONDOMINIUM OR COOPERATIVE (L) OWNER SEEKS TO PERSONALLY OCCUPY UNIT OR SELL UNIT TO PERSON WHO INTENDS TO PERSONALLY OCCUPY (M) TENANCY CONDITIONED ON EMPLOYMENT BY LANDLORD (N) CONVICTION FOR DRUG USE, POSSESSION, MANUFACTURE, ETC. (O) CONVICTION FOR ASSAULT/TERRORISTIC THREATS (P) DRUG OFFENSE OR TERRORISTIC THREATS-NO CONVICTION (Q) THEFT FROM THE LANDLORD OR OTHER TENANTS (R) ENGAGING IN HUMAN TRAFFICKING
149 GROUNDS FOR REMOVAL OF A COMMERCIAL TENANT pursuant to NJSA 2A:18-53 (a) Holdover after expiration of the lease term (b) Nonpayment of Rent due and Owing (c)(1) Disorderly Tenant (c)(2) Damage or Injury to the Premises (c)(3) Violation of rules and regs. accepted in writing at the commencement of the Lease (c)(4) Breach of lease covenant where right of re-entry reserved
150 SELF-HELP EVICTIONS Self-help eviction of residential tenants is prohibited by the Tenant Hardship Act (N.J.S.A. 2A:39-1) Self-help eviction of a commercial tenant is not prohibited by statute, but would be deemed unconstitutional based on current case law
151 PRE-SUIT NOTICE REQUIREMENTS Commercial Tenancies Notice Requirements Under Summary Dispossess Act 18-53(a) Holdover - 3 months if tenancy at will 18-53(b) Nonpayment of Rent due and Owing - None 18-53(c)(1) Disorderly Tenant - 3 days prior to filing suit 18-53(c)2) Damage/injury Premises - 3 days prior to filing suit 18-53(c)(3) Violation of rules and regs. accepted in writing - 3 days prior to filing suit 18-53(c)(4) Breach of lease covenant where right of re-entry reserved - 3 days prior to filing suit
152 PRE-SUIT NOTICE REQUIREMENTS Residential Tenancies Notice Requirements Under The Anti-Eviction Act is pursuant to NJSA 2A: a. For an action alleging disorderly conduct under subsection b, or injury to the premises under subsection c, or any grounds under subsection m, n, o or p, and r, three days' notice prior to the institution of the action for possession; b. For an action alleging continued violation of rules and regulations under subsection d, or substantial breach of covenant under subsection e, or habitual failure to pay rent, one month's notice prior to the institution of the action for possession; c. For an action alleging any grounds under subsection g, three months' notice prior to the institution of the action; d. For an action alleging permanent retirement under subsection h, 18 months' notice prior to the institution of the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires; e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i, one month's notice prior to institution of action; f. For an action alleging any grounds under subsection l, two months' notice prior to the institution of the action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires; g. For an action alleging any grounds under subsection k, three years' notice prior to the institution of action, and provided that where there is a written lease in effect, no action shall be instituted until the lease expires.
153 SUMMONS AND COMPLAINT for EVICTION New Jersey Court Rules Appendix XI-B per R. 6:2-1 Summons (http://www.judiciary.state.nj.us/civil/forms/10822.pdf) Detailed address or description Complaint (http://www.judiciary.state.nj.us/civil/forms/11252_verified_complaint.pdf) Pleadings Landlord acquires title from tenant or tenant has an option to purchase (See R. 6:3-4.)
154 RETURN DATE WHO MAY APPEAR IN COURT COURT PROCEEDINGS SETTLEMENTS CONTESTED CASES - TRIALS
155 COMMON DEFENSES TO EVICTION HABITABILITY-MARINI V. IRELAND RETALIATION OR REPISAL WAIVER UNCONSCIOINABILITY BANKRUPTCY TRANSFER TO SUPERIOR COURT-LAW DIVISION LANDLORD REGISTRATION ACT SECURITY DEPOSIT ACT RELOCATION ASSISTANCE PAYMENT OF RENT NO RIGHT OF REENTRY RESERVED REQUIREMENTS FOR AN ATTORNEY IMPROPER, MISSING, OR DEFECTIVE NOTICE TO CEASE AND/OR QUIT
156 POST TRIAL ENTRY OF A JUDGMENT AND EXECUTION Warrant for Removal STAYS OF EXECUTION By Court Order (Orders to Show Cause) Agreement for Orderly Removal VACATING A JUDGMENT
157 ABANDONED PROPERTY ACT A landlord of commercial or residential property may dispose of any tangible goods or personal property left upon a premises by a tenant after giving notice as required by N.J.S.A. 2A:18-73 only if the landlord reasonably believes under all the circumstances that the tenant has left the property upon the premises with no intention of asserting any further claim to the premises or the property and: A warrant of removal has been executed and possession of the premises has been restored to landlord; or Tenant has given written notice that they voluntarily relinquish possession of the premises Orders for orderly removal
158 10 THINGS TO KNOW WHEN GOING TO TENANCY COURT 1) If Landlord present and tenant is not the case will be marked default and landlord may file the appropriate certifications to have a warrant of removal issued. If Tenant is present and Landlord is not the case will be dismissed. 2) In Non-payment of rent cases a tenant has the right to pay the full amount of rent due and owing by the close of business on the day that the trial was scheduled for. 3) A Landlord may not evict a tenant for failure to pay any attorney s fees, late charges or other amounts unless the lease deems these charges as additional rent. 4) Settlements should be reduced to writing and many courts require that a settlement be placed on the record in open court. 5) Every Tenant has the right to a trial before a judge, no jury in tenancy court. 6) The Jurisdiction of the landlord/tenant court is limited to awarding judgment of possession to the landlord. There can never be a money judgment awarded. 7) A Warrant for removal may not be issued until 3 days after a judgment of possession is entered. Once a Warrant is served, a residential tenant is entitled to 72 hours to vacate. 8) Stays of execution of the Judgment for Possession can be granted by a Landlord, or a Judge. 9) The court maintains a list of Social Service Agencies that provide assistance to residential tenant s. Generally, Courts consider Promises to pay and Vouchers as money in the tenants hands. 10) Before every calendar call an announcement is made. That can be found in the NJ Court Rules at Appendix XI-S
159 * CONCLUSION
160 Bruce Gudin Ehrlich, Petriello, Gudin & Plaza, Attorneys at Law Page 1 of 3 12/10/2014 Home Firm Overview Attorney Profiles Practice Areas Video Center Contact Us (973) Contact Us Today Information Center ATTORNEY PROFILES Alan Ehrlich John Petriello Bruce Gudin Jeffrey W. Plaza Derek Reed Anne Ward Erin R. Ehrlich Geralyn G Humphrey David J. Sideman Steven Landis Ira Levy - Of Counsel Bruce E. Gudin Partner / Member Location: Newark, New Jersey Phone: Fax: (Main) (Tenancy Department) Me Attorney Video Judge Mahlon L. Fast - Of Counsel Contact Our Office Bruce E. Gudin REACH US BY Bruce E. Gudin, currently counsel to the New Jersey Property Owners Association (http://www.poanj.org/), was admitted to practice law in 1989 after graduating from Yeshiva University's Benjamin N. Cardozo School of Law. Mr. Gudin attended undergraduate at Farleigh Dickinson University in Teaneck, New Jersey and C.W. Post in Long Island, NY where he received his B.S. Degree Magna Cum Laude in business. While attending C.W. Post he was awarded the Wall Street Journal Award for outstanding academic performance. Since graduating law school Mr. Gudin has been a frequent lecturer on the subjects of Debtor and Creditor Law, Credit and Collections Risk Analysis, Landlord/Tenant Law, Residential and Commercial Evictions in New Jersey, Commercial Leasing Considerations, and on Section 8 Housing in New Jersey. He regularly lectures for the National Business Institute (http://www.nbi-sems.com/) as well as Lorman Education Services (http://www.lorman.com/). He has also presented seminars on Landlord and Tenant matters to the New Jersey Institute For Continuing Legal Education (http://www.njicle.com/). Mr. Gudin is also an active member of the New Jersey Apartment Association (http://www.njaa.com/) where he regularly consults on legislative issues affecting the multi-family housing industry. Areas of Practice Landlord/Tenant Collections & Repossessions Commercial Leasing Business & Commercial Law Real Estate Law Litigation & Appeals Municipal Court
162 Bruce Gudin Ehrlich, Petriello, Gudin & Plaza, Attorneys at Law Page 3 of 3 12/10/2014 Phone: (973) Local Phone: (973) Website: All rights reserved.
163 Derek Reed Ehrlich, Petriello, Gudin & Plaza, Attorneys at Law Page 1 of 3 7/14/2014 Home Firm Overview Attorney Profiles Practice Areas Video Center Contact Us (973) Contact Us Today Information Center ATTORNEY PROFILES Alan Ehrlich John Petriello Bruce Gudin Jeffrey W. Plaza Derek Reed Anne Ward Erin R. Ehrlich Geralyn G Humphrey David J. Sideman Ira Levy - Of Counsel Derek D. Reed PARTNER/MEMBER Location: Newark, New Jersey Phone: (Ext. 110) (Direct Dial) Fax: (Tenancy Department) Me Contact Our Office REACH US BY Derek D. Reed Mr. Reed has extensive experience in complex commercial, real estate, administrative, landlord/tenant, property tax appeals and family/matrimonial law matters. He has handled numerous cases venued in the state courts of New Jersey and New York, along with the United States District Court, District of New Jersey and in the Eastern and Southern District Courts of New York. Mr. Reed handles matters in the New Jersey Office of Administrative Law regarding challenges to violations of the New Jersey Hotel and Multiple Dwelling Law cited by the New Jersey Department of Community Affairs ("DCA") and has successfully represented and advised numerous property owners, developers and management companies regarding negotiation of these penalties and abatement of violations. His administrative experience also extends to defending property owners in actions brought by the New Jersey Department on Civil Rights for alleged violations of the Fair Housing Act ("FHA") and New Jersey Law Against Discrimination ("NJLAD"). Mr. Reed's successful litigation experience has also served his clients well in countless matrimonial and family law matters in New Jersey. His experience in this area of the law includes, without limitation, trials, motions, emergent applications, early settlement panels ("ESP"), economic mediation, post-judgment applications, child custody, international child custody and Hague Convention applications, parenting time issues, relocation applications, requests for downward modification of support and enforcement of standing court orders. Mr. Reed also has experience handling complex matrimonial actions involving various experts for business and asset valuations. Additionally, Mr. Reed is an instructor with the Rutgers University School of Continuing Legal Education, lecturing on trial testimony and administrative procedure. He has also lectured extensively on various aspects of owning and managing multi-family real estate in New Jersey, including commercial and residential leasing, the New Jersey Fair Housing Act, New Jersey Security Deposit Act, Abandoned Property Statute and various nuances of the New Jersey Anti-Eviction Act and Summary Dispossess Act. He is a seasoned speaker who is regularly asked to give seminars to the multi-family industry. Mr. Reed has lectured to numerous groups, including the Metropolitan Real Estate Investors Association (MREIA) (http://www.mreia.com/), New Jersey Property Owner's Association (POA) (http://www.poanj.org/), New Jersey Affordable Housing Management Association (JAHMA) (http://www.jahma.org/) and Tri-State Mixer (http://www.tristatemixer.com/).
165 Derek Reed Ehrlich, Petriello, Gudin & Plaza, Attorneys at Law Page 3 of 3 7/14/2014 Phone: (973) Local Phone: (973) Website: All rights reserved.
166 I. Brief History of Westlaw A. West, the publishing company B. West Editorial Enhancements 1. Case synopsis 2. Headnotes 3. Topic and Key Numbers 4. Editorial scrutiny Legal Research on WestlawNext NYCLA December 15, 2014 AGENDA C. Development of the WestlawNext platform 1. West Search a years of editorial analysis of the law b. Emulating best practices of legal researchers c. West Key Number System the foundation of West Search d. KeyCite e. West Secondary Sources II. Introduction to Legal Research on WestlawNext A. Logging In B. Home Page Overview 1. Global Search Box 2. Folder a. Plain Language Searching b. Terms and Connectors adv: patent infringement /5 damage c. Citations d. Key Cite kc: NY Gen Bus 340 e. Find a database 3. Favorites & Custom Pages 4. Frequently Used Items C. Plain Language Searching 1. How it differs from Westlaw Classic a. Based on Key Cite, Key Numbers, Document Linking, Customer Usage Patterns b. No need to choose a database c. Can choose jurisdiction