Judge denies attorney's request to dismiss case
Manalapan's litigation against Moskovitz allowed to continue
BY KATHY BARATTA Staff Writer
Ajudge's ruling in Manalapan's lawsuit against a former township attorney leaves both sides preparing for a possible trial.

On Sept. 11 state Superior Court Judge Terence P. Flynn, sitting in Freehold, denied attorney Stuart Moskovitz's motion to dismiss a lawsuit that was filed against him by the Manalapan Township Committee.

Moskovitz was Manalapan's municipal attorney in 2005.

Moskovitz said on Sept. 17 that he will now prepare a motion in which he will seek summary judgment in an attempt to have the lawsuit thrown out. He said it could be several months before he presents that motion to the court. Moskovitz said he may need to conduct depositions in order to prepare that document.

In a lawsuit filed in June, Manalapan officials allege that Moskovitz breached his responsibility to the township in 2005 at the time he was serving as the municipal attorney when he drew up a contract of sale for the township's purchase of two single-family homes on Route 522 in front of the Manalapan Recreation Center.

A home at 95 Freehold Road (Route 522) was purchased for $432,000 and a home at 93 Freehold Road was purchased for $465,500. The township took possession of the properties on June 8, 2005.

The lawsuit alleges that Moskovitz prepared a contract of sale that left the township unprotected and therefore unable to seek remuneration for the expense of removing an underground oil tank, soil remediation costs incurred by cleaning up heating oil contamination, and the cost of cleaning up farm field pesticide contamination that was also discovered on the purchased properties.

The township is seeking damages and costs from Moskovitz.

Moskovitz sought to have the litigation dismissed. He argued that the action the township brought against him was a politically motivated and personal attack and was causing him irreparable harm. He also contended that a township ordinance indemnifies him from the civil action brought against him by Manalapan.

The judge denied those claims.

In denying the motion to dismiss, Flynn specifically addressed comments regarding his interpretation of the intent of Manalapan's indemnification ordinance.

"I'm convinced that this indemnification provision (in the township ordinance), although couched in very broad and generally high-sounding language, is not intended and should never have been interpreted as a form of immunity to all its employees to do whatever they want; unless that was explicitly and clearly in the statute and it's not. I can't find that that's a practical effect of the ordinance or that it should be interpreted that way," the judge said.

Regarding Moskovitz's assertion that the action against him should be dismissed because it is alleged to have been "politically motivated" and that the case, if it is allowed to proceed, is capable of causing him irreparable harm, Flynn said, "Political motivation is a point that will have to be addressed at trial. If Mr. Moskovitz prevails he will certainly have the appropriate avenues to proceed by way of recovery."

When the indemnification issue was under discussion, Moskovitz disclosed that he has malpractice insurance, but said he had not yet notified his insurance carrier of the litigation.

Moskovitz's disclosure about having malpractice insurance came as a surprise to attorney David Weeks, the special counsel who represented Manalapan in court. Weeks noted that by filing pro se with the court, meaning that he was representing himself in the matter, Moskovitz may have voided the terms of his malpractice insurance coverage.

Moskovitz's comment about carrying malpractice insurance after he had already presented papers to the court representing that he was going to be acting as his own attorney in the matter prompted an admonishment from the judge that Moskovitz "certainly should be contacting that (insurance) carrier right away."

As both sides continued to present their arguments to the judge, Moskovitz said the contract he prepared in regard to the purchase of the two homes had not been crafted to be anything other than a boiler-plate document.

"I took a standard broker's contract and applied it to this case," he said in court.

Moskovitz told the judge his decision not to include a remediation clause in the contract of sale had been deliberate and was made "after discussion with the township."

When asked on Sept. 17 who it was that directed him not to include the remediation language in the contract of sale, Moskovitz's answer was that the entire Township Committee had agreed in executive session that they were not going to authorize condemnation of the Route 522 properties.

Moskovitz's argument on his own behalf also contended that Manalapan had been ordered by a court to purchase the two homes on Route 522 as part of a settlement of litigation related to the construction of a Pop Warner youth football stadium at the Manalapan Recreation Center, Route 522.

Moskovitz argued that as 2005 had been a year of continually rising real estate values, his decision to not include specific environmental protection language in the contract of sale had been part of a strategy with the goal being to get Manalapan a bargain by sealing the deal before the market value of the property increased any further.

Moskovitz told Flynn that as he sees it, attempting to negotiate the price by bringing up the possibility of contamination would have made the homeowners balk, with the only option being condemnation of the property; an option that he contended would have ended up costing the township as much, if not more than any remediation work might.

"It's a reasonable strategy to assume there's a real good chance of being behind the eight-ball," Moskovitz said.

The judge disagreed on that point as well, telling Moskovitz, "You did have an option. Go back to the court and ask to amend the litigation. On the face of it, it is not as you say simply one way or the highway. You had other legal remedies you could have used in order to have preserved the rights of the township under the circumstances."

Moskovitz acknowledged that he could have filed a motion, but continued to contend that the 2004 court order that settled litigation brought against Manalapan by the former owners of the properties forced the township to buy the homes regardless of whether there was contamination on the site.

Moskovitz has previously said he believes the contract of sale he prepared afforded Manalapan all the protection the township needed.

Moskovitz also made the argument that attorney Donald Lomurro should have been named in Manalapan's litigation against him (Moskovitz) since it was Lomurro, as the township attorney in 2004, who drew up the court order that required the township to buy the Route 522 properties.

Moskovitz also argued that the former township engineering firm, Birdsall Engineering, should have been named as a defendant.

He contended that the fact that those others were not named as defendants was further proof that the filing of the lawsuit against him by Manalapan officials was malicious.