A Passaic County judge has dismissed a suit accusing McCusker, Anselmi, Rosen & Carvelli and its attorneys of trying to impede development of a new McDonald’s restaurant.
Judge Bruno Mongiardo dismissed the suit against the firm and its attorneys after concluding that land-use objections they advanced while representing a rival McDonald’s franchise owner did not delay the development of a new McDonald’s in Passaic. Environmental contamination from a 180,000-gallon underground oil tank on the site was ultimately revealed as the cause of the delays, Mongiardo said in a decision that was made public Thursday.
The site’s developer, Passaic Industrial Properties, withheld documentation about the oil tank from the McCusker Anselmi defendants, but the defendants learned of the environmental problems after submitting an Open Public Records Act request to the state Department of Environmental Protection, Mongiardo said.
The ruling dismisses the suit in its entirety. Besides the McCusker Anselmi firm, defendants in the case who were dismissed include attorneys Paul Carvelli and William Munday, as well as their former client, Sebastian Lentini, and two other defendants, Darren Lentini and Christina Gervasi. Three others from the firm—John McCusker, Andrew Anselmi and Bruce Rosen—were previously dismissed from the case.
Passaic Industrial Properties’ complaint against the McCusker Anselmi firm and its attorneys cited a suit they filed in September 2015 to challenge approval of the McDonald’s application by the Passaic Zoning Board of Adjustment on behalf of three local residents. That case was dismissed in January 2016 after Passaic Industrial Properties argued the alleged objectors never authorized McCusker Anselmi to file the suit on their behalf. Passaic Industrial Properties then filed the present suit against McCusker Anselmi and its attorneys in February 2016, accusing them of tortious interference with contract, interference with economic advantage and conspiracy.
Passaic Industrial Properties claimed in its suit that McCusker Anselmi’s filing of the objection suit caused delays to its receipt of income from the project through a land lease with McDonald’s.
But the plaintiff’s conduct during the 879-day discovery period was “very disturbing,” Mongiardo said. The plaintiff had in its possession “undisclosed, outcome-determinative documents demonstrating that the alleged damages it claims in these consolidated actions were caused not by the McCusker defendants’ zoning objections and lawsuit, but rather by known, pre-existing environmental contamination on the property,” Mongiardo said.
Ultimately, Passaic Industrial Properties produced the ground lease on March 19, 2018, after initially claiming the document was confidential. Its terms show that none of the McCusker firm’s actions could have resulted in any damages to the plaintiff, because the contract does not provide for rent payments from McDonald’s until the restaurant is open for business or when construction is complete, Mongiardo said. To date, neither of these contingencies has been met, but through no fault of the McCusker Anselmi firm, whose objection suit was terminated in January 2016.
“The three-year delay in construction was likely caused because plaintiff’s development site required remediation and oversight by the New Jersey Department of Environmental Protection. Plaintiff has withheld and concealed this information from defendants,” Mongiardo said.
Dismissal with prejudice has repeatedly been recognized by the New Jersey Supreme Court as an appropriate sanction for concealment and contumacious failure to provide discovery in the manner established in the present case, Mongiardo wrote.
John Neubauer, chief operating officer of McCusker Anselmi, said in a statement, “The claims against our firm were entirely without basis in fact or law and have properly been dismissed on summary judgment. We are pleased to have this matter finally addressed and exposed as utterly meritless and made in bad faith.”
Christopher Carey of McElroy, Deutsch, Mulvaney & Carpenter in Newark, representing the McCusker firm, did not return a call about the case. Jack Dweck and Chris Fraser of the Dweck Law Firm in New York, who represented Passaic Industrial Properties, also did not return calls.