McDonald's golden arches/courtesy photo McDonald’s golden arches/courtesy photo

A trial date is approaching for a suit claiming the firm of McCusker, Anselmi, Rosen & Carvelli tried to head off development of a new McDonald’s restaurant by raising objections on behalf of fictitious clients.

Trial is set for Feb. 11 in Passaic County Superior Court in a suit by Passaic Industrial Properties LLC, which sought to construct a new McDonald’s in Passaic. Filed in early 2016, the suit names attorneys Paul Carvelli and William Munday as defendants. The defendants have moved for dismissal and, alternately, for summary judgment. Those motions will be heard Jan. 4 before Judge Bruno Mongiardo in Hudson County.

Partners John McCusker, Andrew Anselmi and Bruce Rosen were named as defendants but were voluntarily dismissed from the case.

The McCusker firm says the allegations in the case are meritless.

The actions of the McCusker firm and its clients resulted in delays that cost Passaic Industrial Properties more than $1 million, the lawsuit claims. Passaic Industrial Properties seeks compensatory and punitive damages in an amount to be determined at trial.

According to Passaic Industrial Properties, the McCusker firm was retained by an owner of a nearby McDonald’s franchise to raise objections to the Passaic restaurant on behalf of fictitious clients in a zoning board proceeding. The suit claims the firm submitted objections to the McDonald’s project on behalf of people named Fahrudin Bruncevic, Emely Leader and Miguel Lozano.

The suit claims Bruncevic and Leader were asked to sign false affidavits, drafted by the McCusker defendants, stating that they opposed the plaintiff’s development. But Bruncevic and Leader never retained the McCusker firm and did not oppose the project. And the McCusker firm identified Lozano as an objector during zoning board proceedings, but no such person exists and the name was fabricated by the firm, the suit claims.

After the Passaic project received approval for its variance application, the McCusker firm filed an action in lieu of prerogative writs in Superior Court. That lawsuit claimed the zoning board made a legally incorrect ruling, and acted in an arbitrary and capricious manner.

Passaic Industrial Properties responded that the alleged objectors did not retain the McCusker firm and did not oppose the project. Superior Court Judge Ernest Capostela dismissed the complaint in January 2016 without opposition from the McCusker firm.

“Through Defendants’ sham objections before the Board of Adjustment and the litigation, which they commenced thereafter, they engaged in predatory and unauthorized conduct when the Defendants knew, or should have known, that they did not have a legitimate interest in pursuing these objections, and the litigation which followed. These challenges were objectively baseless and without foundation or sanction of the law,” Passaic Industrial Properties’s lawsuit claimed.

In its motion to dismiss, the McCusker firm said the case should be tossed because Passaic Industrial Properties obstructed access to some key evidence, namely its ground lease with McDonald’s and various written amendments to the ground lease. In addition, the McCusker firm claims that Passaic Industrial Properties has provided no evidence of damages.

Passaic Industrial Properties claims the McCusker firm’s objections delayed construction of the McDonald’s and reduced the profit it would generate, but Passaic Industrial Properties has provided no proof of lost profits, according to the McCusker firm. The law firm cited a certification by the Passaic zoning board attorney, Douglas Kinz, that the McCusker firm’s actions caused no delay.

The McCusker firm was retained by Sebastian Lentini, who directed it to make the false claims, Passaic Industrial Properties’s lawsuit said. Lentini, who is 81 years old, is also a party in separate litigation in Superior Court accusing McDonald’s of age discrimination. He claims the company wanted him to give up his status as the primary franchisee of his stores due to his age.

The McCusker defendants face claims for interference with economic advantages, malicious use of process, and intentional and malicious conduct.

Chris Fraser of the Dweck Law Firm in New York, who represents plaintiff Passaic Industrial Properties, declined to comment.

Christopher Carey of McElroy, Deutsch, Mulvaney & Carpenter in Newark, representing the McCusker firm, declined to comment.  The McCusker firm issued the following statement about the case: “The allegations against McCusker, Anselmi, Rosen & Carvelli PC in this lawsuit are meritless and we look forward to being exonerated in Court.”

“At all times the firm relied on the representations and direction of a client. That client, who was undisclosed to the zoning board (which is not unusual in the cases of objectors), had standing to raise the same objections as the individual objectors,” the McCusker firm said in the statement.

The Florham Park-based McCusker firm lists 28 lawyers on its website.