Appellate Division Denies Request to Expedite Case for Shuttered Business
/CONTACT:
Jennifer Jean Miller | (973) 532-2117
(Morris Plains, NJ) The Appellate Division denied a request on Thursday to expedite proceedings for a New Jersey business that closed its door because of Gov. Phil Murphy’s back-to-back emergency COVID-19 executive orders, which have since resulted in the closure of more than one-third of the state’s small businesses. According to the order from Judge Carmen Messano in the case of JWC Fitness LLC versus Murphy, the case was denied an accelerated hearing for Murphy’s failure to properly execute the Disaster Control Act, which he invoked in his March Executive Orders and deemed some businesses “non-essential,” including the plaintiff’s CKO Kickboxing Franklin. In spite of her plight, Murphy asked the Appellate Division to deny counsels’ request to move the case quickly, which would have assisted plaintiff Darlene Pallay in seeking financial relief.
Although Messano’s order specified he would not expedite the case and the parties will next receive a briefing schedule to file their written arguments, he did not deny that the first claim pertaining to establishment of the Disaster Control Act, should be argued in the Appellate Division. He did, however, state the second and third claims that argued Federal and State Constitutional issues of “taking” requiring compensation, should return to the Superior Court, where the complaint was first filed on Sept. 23.
“The entry of this order is without prejudice to plaintiff’s ability to seek relief in the Law Division at the appropriate time; the entry of this order is not a ruling on the merits of plaintiff’s proposed amendment,” Messano wrote. As part of the Act, Murphy was mandated to establish compensation boards in every county where businesses and individuals impacted by the shutdowns, could petition for “reasonable compensation,” in return for his control over their properties. Murphy failed to establish these boards, which would have permitted Pallay to seek relief for her business. Instead Pallay’s thriving decade-old business, according to the filings from her attorneys, Robert W. Ferguson, Esq. of the of the law firm of Stern, Kilcullen and Rufolo, LLC of Florham Park and Catherine M. Brown, Esq., of Denville – a suit facilitated by the non-profit advocacy group Rescue New Jersey - dwindled to the point she closed her doors. “While Rescue New Jersey is pleased that the Appellate Court will address the underlying issue of the State’s misapplication of the Disaster Control Act and economic hardship that Mrs. Pallay has suffered, we wish the Court could have expedited the matter,” said Donald Dinsmore, Esq., Rescue New Jersey’s chairman.
Court briefs show Pallay acted in her business as “a law-abiding, taxpaying citizen of this State,” who not only helped to support her family – including three young children – with her business, she was also a vital part of her region, receiving Congressional recognition for “COVID-related activities that benefitted her community.” Pallay’s business, according to one of the court briefs, accrued debt as a result of her inability to operate under the restrictions, including to her commercial landlord. For more information about Rescue New Jersey and this case, go to: www.rescuenewjersey.org.
