Joshua S. Bauchner

Joshua S. Bauchner

New York, New York, United States
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Mandelbaum Barrett PC

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Partner with the law firm of Mandelbaum Barrett, P.C. Representative matters…

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Experience

  • Mandelbaum Barrett PC

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Education

  • Brooklyn Law School Graphic

    Brooklyn Law School

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    Activities and Societies: Brooklyn Journal of International Law, Editor in Chief, Brooklyn Law School Moot Court Honor Society - Products Liability Team, Center for the Study of International Business Law, Fellow

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Publications

  • The NJ Construction Lien Law: A Powerful, Equitable Tool

    New Jersey Law Journal

    The New Jersey Construction Lien Law (CLL), N.J.S.A. 2A:44A-1-38, presents a powerful tool
    for contractors and suppliers to ensure payment for services, material and equipment. Through simple filings with the county clerk and court, an unpaid contractor can secure a lien on the real property where the work was performed. Thus, although the failure to make payment may rest with the general contractor or a senior subcontractor, the lien creates a security interest in the real property…

    The New Jersey Construction Lien Law (CLL), N.J.S.A. 2A:44A-1-38, presents a powerful tool
    for contractors and suppliers to ensure payment for services, material and equipment. Through simple filings with the county clerk and court, an unpaid contractor can secure a lien on the real property where the work was performed. Thus, although the failure to make payment may rest with the general contractor or a senior subcontractor, the lien creates a security interest in the real property impacting on the owner’s rights—representing a surefire way to get its attention and, ideally, compel payment.

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  • Brokers Beware: NJ Real Estate License Act has Strict Requirements

    New Jersey Law Journal

    Most real estate brokers know to put their client’s interests first. And, most do. However, even the most ethically conscientious broker may not be aware of the strict statutory requirements imposed by the New Jersey Real Estate License Act.

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  • The Linear Construct of A Negligence Claim

    New Jersey Law Journal

    Lawyers can recite from memory the elements of a negligence cause of action: duty, breach, causation, and damages. However, what many practitioners fail to appreciate is that the order of the elements is critical to any claims analysis. Only by first defining the scope and extent of an alleged duty can one determine whether that duty was breached by a defendant or if liability was truncated by a superseding or intervening cause.

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  • Let Them Plead in the Alternative

    New York Law Journal

    The right to plead claims in the alternative is well established in New York state practice and jurisprudence. Yet, courts often seek to “streamline” cases at the very nascent stages of a litigation by dismissing so-called “duplicative” claims seeking alternative forms of relief. This practice defies the permissive pleading standards embodied in the CPLR and often risks imposing unnecessary complexity and prejudice into the litigation for no useful reason.

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  • The False Hope of Lost Profits Damages

    New York Law Journal

    Lost profits damages are frequently sought by clients who have suffered a business interruption due to another’s negligence or contractual breach. However, Courts often are reluctant to award such damages finding they are speculative and “icing” — they do not make the prospective plaintiff whole, but instead permit a surplus recovery in addition to compensatory or consequential damages. For these reasons, Courts have restricted lost profits damages requiring plaintiffs to demonstrate their…

    Lost profits damages are frequently sought by clients who have suffered a business interruption due to another’s negligence or contractual breach. However, Courts often are reluctant to award such damages finding they are speculative and “icing” — they do not make the prospective plaintiff whole, but instead permit a surplus recovery in addition to compensatory or consequential damages. For these reasons, Courts have restricted lost profits damages requiring plaintiffs to demonstrate their loss with “reasonable certainty” and ensuring such losses are not recoverable under other theories or in other ways.

    This article is intended to guide the practitioner through the pitfalls of lost profits damages and ensure the focus is on recovery, regardless of how it is characterized. As an initial matter, cases addressing lost profits distinguish between damages resulting from tortious conduct and those arising from a breach of contract. Although in both situations a plaintiff has the burden of proving lost profits with reasonable certainty, the underlying causes of action recommend separate treatment.

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  • Fending Off the Appointment of a Receiver

    New Jersey Law Journal

    In today’s stressful economic climate, commercial property owners often are the victims of their tenant’s problems. While a national tenant may file for bankruptcy with the expectation of reorganizing under Chapter 11 of the Bankruptcy Code, the landlord is left having to service the mortgage without cash-flow from that tenant or any ability to commence an eviction or related action as a result of the automatic stay. 11 U.S.C. § 362. Sooner or later (likely sooner) the Landlord’s bank will…

    In today’s stressful economic climate, commercial property owners often are the victims of their tenant’s problems. While a national tenant may file for bankruptcy with the expectation of reorganizing under Chapter 11 of the Bankruptcy Code, the landlord is left having to service the mortgage without cash-flow from that tenant or any ability to commence an eviction or related action as a result of the automatic stay. 11 U.S.C. § 362. Sooner or later (likely sooner) the Landlord’s bank will come calling in the form of a foreclosure action.

    While the defaults under the mortgage present their own challenges (the rapid accrual of default interest, late fees, and attorneys’ fees and costs), the likely first step in the foreclosure action will be a Motion to Appoint a Receiver; indeed, this requested relief often is sought contemporaneously with the filing of the foreclosure complaint. The motion will seek the appointment of a receiver simply to collect rents or, more often these days, to take full managerial and operational control over the property divesting the Landlord of all its rights and interests (though not, title, as of yet). This article details some defenses the Borrower (née Landlord) can assert to ward off the appointment.

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  • Bankruptcy Trustee’s Avoidance Rights Are Nearly Limitless

    Law360

    Section 550 of the Bankruptcy Code applies where the trustee, having already avoided a transfer of some property, seeks to recover that property. Under those circumstances, the recovery must be “for the benefit of the estate.” This requirement does not apply, however, where the trustee seeks only to avoid an obligation that the debtor incurred, which does not require any recovery to the estate. Additionally, Section 550 does not limit the amount of avoidance to a creditor’s claim permitting…

    Section 550 of the Bankruptcy Code applies where the trustee, having already avoided a transfer of some property, seeks to recover that property. Under those circumstances, the recovery must be “for the benefit of the estate.” This requirement does not apply, however, where the trustee seeks only to avoid an obligation that the debtor incurred, which does not require any recovery to the estate. Additionally, Section 550 does not limit the amount of avoidance to a creditor’s claim permitting recovery of a transfer or negation of an obligation in its entirety. These considerations provide a trustee with extraordinary flexibility and range when pursuing claims under sections 544 and 548 of the Code.

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  • Spotlight on Section 550 of the Bankruptcy Code

    Law360

    The “benefit of the estate” language of section 550 of the Bankruptcy Code informs and guides most bankruptcy practice. It permits the trustee to recover property from a transfer avoided pursuant to sections 544, 545, 547, 548, 549, 553(b), or 724(a). However, the “benefit of the estate language” often is limited by courts and practitioners to take into consideration only benefit to creditors of the estate; rather than to all of the various constituencies comprising the bankrupt estate…

    The “benefit of the estate” language of section 550 of the Bankruptcy Code informs and guides most bankruptcy practice. It permits the trustee to recover property from a transfer avoided pursuant to sections 544, 545, 547, 548, 549, 553(b), or 724(a). However, the “benefit of the estate language” often is limited by courts and practitioners to take into consideration only benefit to creditors of the estate; rather than to all of the various constituencies comprising the bankrupt estate, including equity. This is too narrow an application of the statute.

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  • The Forgotten Bank Holding Company Act of 1972

    Law360

    The Bank Holding Company Act (“BHCA”) was enacted by Congress to deter misconduct and compensate victims by permitting “[a]ny person who is injured in his business or property by reason of anything forbidden” in Section 1972 to bring suit. 12 U.S.C. § 1975. Congress intended the expansive BHCA to protect against the banking industry’s inherent coercive and anti-competitive market power by granting a private right of action to “any person” injured by “anything forbidden” in the statute, adopting…

    The Bank Holding Company Act (“BHCA”) was enacted by Congress to deter misconduct and compensate victims by permitting “[a]ny person who is injured in his business or property by reason of anything forbidden” in Section 1972 to bring suit. 12 U.S.C. § 1975. Congress intended the expansive BHCA to protect against the banking industry’s inherent coercive and anti-competitive market power by granting a private right of action to “any person” injured by “anything forbidden” in the statute, adopting per se liability, rejecting more rigorous requirements found in antitrust law, and awarding treble damages, fees and costs.

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