NJ Legal Mediation

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

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

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

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

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

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

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

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

NJ Commercial Debt Forgiveness

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

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

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

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

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

Recent Mediation Case

COVID-19 has slowed down the adjudication of cases and the active Mediation of the more substantial ones. Now that the court system is in the process of moving cases again, it is more important than ever that you move your case to Mediation immediately and that we all get back to pre-COVID mediation levels.

On November 12, 2021, Judge O’Brien, a retired Presiding Civil Judge from Ocean County settled an Ocean County Dram Shop case for $325,000.00. Plaintiff was driving the second car in a three car accident. Plaintiff’s vehicle was rear-ended and pushed into the vehicle ahead of his. The Defendant drunken driver had a $15,000.00 policy that was offered immediately. He also had one prior DUI. Defendant’s BAC was .22 at the time of the crash which occurred one mile from the bar where the Defendant had been drinking. Plaintiff’s claim was that the Defendant was “visibly intoxicated” at the time he was served at the Defendant’s bar. The 30-year old Plaintiff with no pre-existing conditions suffered herniated discs at C2-3, 4-5, 5-6, 6-7 and T2-3 as well as herniated discs at L3-4, 4-5 and L5,S-1. His treatment consisted of epidurals, trigger points, branch blocks and radio frequency ablation. He also had arthroscopic surgery on his left knee. His treating doctors projected possible anterior cervical fusion/discectomy and a knee replacement. Plaintiff was self-employed and has no lost wages.

Judge O’Brien will conduct mediations either live or by Zoom