Judge rejects duo's information
Cohen: Cost of lawsuit an issue for Manalapan 'with no end in sight'
BY KATHY BARATTA Staff Writer
Anew wrinkle has worked its way into the fabric of litigation that has been going on for more than a year between Manalapan and attorney Stuart Moskovitz.

The malpractice action filed in the case of Manalapan v. Moskovitz centers around a contract of sale that Moskovitz, in his capacity as township attorney, drafted and executed in 2005 for Manalapan's purchase of two private homes on Route 522 across from the municipal complex.

Township officials brought the legal action against Moskovitz when it was later determined there was contaminated soil on the property that required a state-mandated cleanup. Moskovitz has said the contract of sale he prepared afforded Manalapan all appropriate protections.

The latest hearing on the case was held on Oct. 10 in the state Superior Court courtroom of Judge Dennis O'Brien in Freehold.

In a move that angered the judge and shocked the attorneys, two members of the Manalapan Township Committee, Susan Cohen and Anthony Gennaro, took it upon themselves to submit personal testimony in the form of written certifications directly to O'Brien.

O'Brien rejected the two certifications and would not permit them to be entered into the record of the case. He provided the three attorneys involved with copies of the certifications.

The judge angrily described the certifications as having been delivered to him "unsolicited, without cover letter, without anything." He said the certifications from Gennaro and Cohen came with attached copies of executive session minutes from closed meetings Manalapan officials have held regarding the Moskovitz litigation.

Neither Cohen nor Gennaro was in court Oct. 10.

"Nothing in my certification has anything to do with any executive session that I participated in while on the Township Committee," Cohen told the News Transcript after the hearing.

The judge said in court that Moskovitz's filed papers to date regarding his attempt to have the litigation against him dismissed contain references to "all sorts of things that are part and parcel of things that I'm not sure aren't executive session minutes material."

In explaining why he would not accept the certifications from Gennaro and Cohen, O'Brien said, "I want to make this perfectly clear. I am not accepting anything from anybody who is represented by counsel."

As members of the Township Committee, Gennaro and Cohen are represented by the attorney who is arguing the case for Manalapan.

In subsequent interviews, Gennaro and Cohen said their certifications had been prepared independently. The municipal officials said they took this step because they were not being given information about the case from the attorney who was hired to represent Manalapan in the matter.

Cohen said she hand-delivered her certification to O'Brien's office in July.

When asked if she should have informed her fellow committee members what she planned to do, Cohen said, "It's a topic they never wanted to discuss with me so I decided it (the certification) is not something I would discuss with them."

Gennaro said, "It was an effort on my own to get the facts before the judge."

He said before he submitted his certification to the judge, he had "someone look it over, but I don't know if they were an attorney. It is my understanding that they had an understanding of the courts."

Cohen said she left messages at the office of the attorney who is representing Manalapan in the litigation against Moskovitz. She said those messages were not returned and she came to believe the attorney was not acting in her interests in the matter and therefore did not represent her in the matter.

She said that after listening to an audiotape of a July hearing, she came away disturbed by the potential escalating costs of continuing the litigation against Moskovitz. Cohen said that is why she voted with Gennaro against a committee resolution on Oct. 7 that was related to the litigation. She said she was hoping to see the matter get dismissed by O'Brien.

"As an elected official, it is my responsibility to act as the taxpayers' watchdog. I saw this case as a political vendetta," Cohen said.

She said that concern is why she prepared the certification and only discussed it in broad terms with her personal attorney, who she said did not advise her to inform any municipal officials that she was going to submit information in a matter relating to ongoing litigation.

Cohen said the certification was only meant for O'Brien's eyes. She said that after listening to a tape of one of the hearings she decided the lawsuit against Moskovitz should be halted.

"After hearing the tape I realized that the taxpayers would be spending money after money with no end in sight even though one attorney's fee was on a contingency basis. Enough of the taxpayers' money had been spent," she said.

Cohen said she did not discuss the certification with Township Attorney Kevin Kennedy until after she had prepared and delivered it to O'Brien.

Mayor Michelle Roth and committeemen Richard Klauber and Andrew Lucas said they had no idea Cohen and Gennaro were going to take action in the litigation. They said they were shocked by what their fellow committee members had done.

"We have professionals who represent the township. It is disturbing that neither Tony Gennaro nor Susan Cohen bothered to call our township attorney to discuss this with him," Roth said.

Klauber, who is an attorney, said, "This is very troubling to me. It raises a question in my mind as to who they represent. Is it the taxpayers or is it Mr. Moskovitz? If (Cohen and Gennaro) have jeopardized the township's position, then I would say I would have to consider some action would have to be taken."

Lucas promised action, saying, "It is deplorable that committee people would put their personal interests above the rule of law as the process has been established, to the detriment of the taxpayers. As it appears there is no real legal redress regarding rogue committee people and actions they commit, I am going to make it my mission to close that loophole."

He said he would pursue through the state Legislature the enactment of a statute that would define such a law and provide penalties for those who violate it.

Kennedy was asked following the Oct. 10 court session if there is a state law which expressly addresses the matter of a governing body's executive (closed) session; what constitutes a breach of any such law and what, if any, penalties are attached to it. He had not supplied a response by press time Monday.