Sides are still arguing in Manalapan v. Moskovitz
Judge orders more papers to be filed by Oct. 17
BY KATHY BARATTA Staff Writer

FREEHOLD — Both sides in Manalapan's ongoing litigation against a former township attorney have been instructed by a judge to submit arguments to him supporting the merits of their case.

State Superior Court Judge Dennis O'Brien made the ruling on Oct. 10 in the case of Manalapan v. Stuart Moskovitz, an attorney who served as Manalapan's township attorney in 2005.

Moskovitz is also a former member of the Manalapan Township Committee.

The Oct. 10 hearing took place in O'Brien's courtroom in the Monmouth County Court House.

Township officials started the litigation against Moskovitz in June 2007 under the direction of special counsels Daniel Mc- Carthy, who was hired at the start of that year to serve as a general conflict attorney, and David Weeks, from the firm Ruprecht, Hart and Weeks, who was hired by resolution in February 2007 to investigate the matter of a real estate purchase by Manalapan under the terms of a contract that had been drawn up by Moskovitz in 2005.

The township's litigation claims Moskovitz did not provide Manalapan with sufficient protection in a real estate transaction between the township and private landowners.

Moskovitz maintains that the contract he drew up provided the township will all necessary protections.

Moskovitz contends that the February 2007 resolution that was passed by the committee to hire Weeks' law firm was vague in scope and he maintains that the litigation subsequently pursued by Weeks and Mc- Carthy was not properly authorized by the governing body.

On Oct. 7, the committee introduced and passed another resolution relating to Weeks. The vote was 3-2 with Mayor Michelle Roth and committeemen Andrew Lucas and Richard Klauber voting to pass the resolution and Deputy Mayor Susan Cohen and Committeeman Anthony Gennaro voting against the resolution.

Roth said the Oct. 7 resolution was being passed as a "clarifying resolution" for the original resolution which had been passed in February 2007. Roth noted that Gennaro voted to pass the February 2007 resolution.

The February 2007 resolution was passed before Cohen was on the committee.

The resolution that was passed last week specifically named Moskovitz and author izes the open litigation against him to proceed.

Before casting his vote against passing the Oct. 7 clarifying resolution, Gennaro said he wanted the Superior Court to decide whether the original resolution that was passed by Lucas, Roth and Klauber duly authorized the litigation against Moskovitz.

Attorney Len Garza is Weeks' associate who now attends court to represent Manalapan in the litigation against Moskovitz.

Attorney Steven Farsiou was hired to represent Lucas, who was brought into the case by Moskovitz as a third-party defendant. Moskovitz filed papers claiming that Lucas maliciously voted to bring the litigation against Moskovitz in order to prevent Moskovitz from working on Cohen's election campaign in 2007.

Cohen and Lucas ran on the same Republican ticket and won the seats they campaigned for in 2007 even though a rift had developed between them and they did not campaign together.

Moskovitz claims Lucas should not be allowed to vote on any matters that involve Moskovitz because now, as a third-party defendant, Lucas has an established conflict that should preclude him from voting on items related to Moskovitz.

Farsiou contends that the only reason Lucas is now a third-party defendant in the litigation was because Moskovitz, in bringing the action against Lucas, could then allege a conflict for Lucas where none had previously existed.

"He's (Lucas) in this (lawsuit) out of spite and malicious intent," Farsiou said, to which O'Brien remarked, "Spite and malicious intent are all over this case."

Farsiou told the judge, "If Andrew Lucas shouldn't vote (on items related to Moskovitz), then clearly, clearly, Susan Cohen shouldn't vote."

In previous filings in the matter, Mc- Carthy argued that Cohen had already established a conflict in voting in matters that involve Moskovitz because she had confirmed publicly that Moskovitz performs legal work for her husband's business.

Farsiou told a reporter he was prepared to make the case to the judge that Cohen should also be cited as having a conflict due to the fact that in filing his claim against Lucas, Moskovitz established a conflict for Cohen since he cited his (Moskovitz) being prevented from working on her election campaign as being an example of how Lucas violated his civil rights.

Both sides were in court on Oct. 10 expecting a decision from the judge on motions filed by both sides. All three attorneys claimed shock and surprise in the courtroom when O'Brien confronted them with certifications that had been submitted to him prior to the court date by Gennaro and Cohen.

O'Brien angrily described the certifications as having been delivered to him "unsolicited, without cover letter, without anything."

The judge said the certifications from the two members of the governing body came with attached copies of executive session minutes from the closed meetings Manalapan officials have held regarding the Moskovitz litigation.

O'Brien opined that Moskovitz's filed papers to date regarding his attempt to have the litigation 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 Cohen and Gennaro, O'Brien said, "I want to make this perfectly clear. I am not accepting anything from anybody that is represented by counsel."

When handed the certifications, Moskovitz told the judge, "I am absolutely seeing these documents for the first time."

O'Brien went on to state that while Farsiou and Moskovitz were being furnished with copies of the certifications, he was giving the originals directly to Garza because "they (Gennaro and Cohen) are your clients," referring to the malpractice action Manalapan has brought against Moskovitz.

Garza told the judge he had no knowledge of how the certifications from Cohen and Gennaro had been prepared or who had been involved in their preparation.

"This is the first time I'm seeing these," he said.

Speaking about Gennaro and Cohen sending him certifications without letting Manalapan's attorney in the matter know they were doing so, O'Brien said, "It is improper for somebody who is a party to a lawsuit to attempt to influence the court by submitting something ex parte (by one party) without any explanation. They (the certifications) came unsolicited and I was not pleased."

One of the reasons for the Oct. 10 court hearing was for the judge to rule on Moskovitz's motion to have the litigation against him dismissed on the grounds that Weeks' firm had never been authorized to start the litigation against Moskovitz.

"There seems to be a dispute between the parties as to the authorization of this lawsuit," O'Brien said.

Garza told the judge that while there was nothing wrong with the first (2007) resolution the committee passed, officials passed a second resolution on Oct. 7 because Moskovitz had questioned the validity of the initial resolution.

Moskovitz said there should not have been a clarifying resolution passed last week.

"You either had a legitimate resolution or you didn't," he said.

Moskovitz said the resolution passed on Oct. 7 by Lucas, Roth and Klauber was "an instrument ratifying the attorneys' actions."

The judge responded, saying, "It's a remedial resolution. It clarified what was not put in the original resolution."

Arguing that Lucas should not have voted on the Oct. 7 clarifying resolution, Moskovitz said, "Case law is extensive that you cannot vote in a matter in which you have a conflict. Should you do so, your action is invalid."

Farsiou told the judge that Lucas' Oct. 7 vote was nothing more than an extension of his vote on the first resolution in 2007.

The hearing ended with O'Brien telling all of the attorneys he wants their individual arguments submitted to him in writing by Oct. 17 and that he would render his decision based on those arguments on Oct. 24.