GUSTAVO ROBAYO VS. ANTHONY A. ROSSO (L-1735-16, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1913-17T3
GUSTAVO ROBAYO,
Plaintiff-Appellant,
v.
ANTHONY A. ROSSO and
MEADOWLANDS
CONTRACTING, LLC,
Defendants-Respondents,
and
HANOVER INSURANCE
GROUP,
Defendant.
__________________________
Submitted December 18, 2018 – Decided January 14, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1735-16.
Robert M. Mayerovic, attorney for appellant.
Law Offices of Terkowitz & Hermesmann, attorneys
for respondents (Craig M. Terkowitz, on the brief).
PER CURIAM
In this property damage action, plaintiff Gustavo Robayo appeals from the
Law Division's September 29, 2017 order granting defendants Anthony A.
Rosso and Meadowlands Contracting, LLC, summary judgment and the court's
December 1, 2017 order denying reconsideration. We affirm.
Plaintiff is the sole shareholder of Ex-Titanic Corp., which owns a 166-
year-old commercial building consisting of three units at 3125-3129 Central
Avenue in Union City. In approximately 2004, plaintiff had the roof repaired
on the portion of the building above 3129 Central Avenue, as the building was
old and in "bad shape." On March 31, 2009, Ex-Titanic leased the property
located at 3129 Central Avenue to Katyta's Laundromat, then-owned by Mario
Silva Mejia (Silva) and Mary C. Vereau Rodriguez (Rodriguez).
Before Silva's tenancy, the building was used as a restaurant and required
renovations to convert it into a laundromat. The lease provided that "any
licenses and permits [are the] tenant['s] responsibility" and "any alterations" to
the building must be performed by a licensed company "[at] the tenant['s] cost,"
with plaintiff retaining the right to "control[]" and "approve" any modification.
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In Rosso's certification submitted in support of defendants' summary
judgment motion, he stated that Anthony Dominguez, an electrical contractor
hired by Silva, approached him to assess his interest in acting as general
contractor for the remodeling work at the laundromat. Rosso certified that he
expressed interest and anticipated being awarded the contract. Accordingly, he
submitted a construction permit application with Union City and paid the permit
fee of approximately $150. The permit request and accompanying contractor
registration form listed Meadowlands as the general contractor. However, it was
undisputed that Meadowlands "never obtained the contract for th[e] job and
never did any work on the premises."
Silva provided deposition testimony that he owned Mecorp, Inc.
(Mecorp), a construction company, which completed the renovation work,
including the installation of dryer exhaust vents on the roof. Further, he stated
that he paid Dominguez for completing the electrical work. With regard to the
construction permit application, Silva stated that he was not involved in
obtaining the permit. He added that he did not know Rosso, never paid
Meadowlands, and Meadowlands did not perform any of the renovation work at
the laundromat.
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After the construction was complete, Union City issued a certificate of
occupancy to Silva on June 11, 2010, and Katyta's Laundromat opened in
October 2010. On March 25, 2013, Katyta's Laundromat was evicted for non-
payment of rent. In his deposition, plaintiff testified that after the eviction, he
observed water infiltrating from the roof into the laundromat and concluded the
water leakage was a result of the improper installation of the dryer exhaust vents.
Plaintiff sued Rosso, Meadowlands, Hanover Insurance Group, and John
Doe defendants 1 and alleged that defendants negligently "drilled [five] wrong
duct holes . . . on the rooftop of [the] laundromat . . . causing leaks and damage[]"
to the building. For reasons not explained in the record, plaintiff did not sue
Silva, Rodriguez, Katyta's Laundromat, or Mecorp. On August 2, 2016, Rosso
and Meadowlands filed an answer denying plaintiff's allegations and on August
29, 2017, moved for summary judgment.
The court granted defendants' motion on September 29, 2017, and entered
its decision on the record that day. In its oral decision, the court concluded that
because it was "established unequivocally that [defendants] didn't do any work
[at the laundromat] . . . they cannot be held [liable] in tort law, . . . for the
1
Hanover Insurance Group was dismissed by a June 24, 2016 order and is not
involved in this appeal.
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damage." The court added that it "can't impose on them a responsibility for the
faulty workmanship simply because [Meadowlands'] name[] [is] on the permit."
On December 1, 2017, the court denied plaintiff's motion for reconsideration.
This appeal followed.
On appeal, plaintiff argues the judge committed error in granting
defendants summary judgment because the court failed to consider adequately
all the factors necessary to determine whether Rosso or Meadowlands, as
general contractors, should be liable for the negligent installation of the exhaust
vents. We disagree.
We apply the same standard as the trial court when reviewing a grant of
summary judgment. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).
Pursuant to Rule 4:46-2(c), a court is required to grant summary judgment "if
the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." If there are no genuine and material factual questions,
we then determine whether the trial court made a correct ruling on the law.
Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
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To prevail on a negligence claim, the plaintiff must demonstrate: "(1) that
the defendant owed a duty of care; (2) that the defendant breached that duty; (3)
actual and proximate causation; and (4) damages." Fernandes v. DAR Dev.
Corp., Inc., 222 N.J. 390, 403-04 (2015). The "plaintiff bears the burden of
establishing those elements 'by some competent proof.'" Townsend v. Pierre,
221 N.J. 36, 51 (2015) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014)).
"It is well-settled that when a person engages an independent contractor
to do work that is not itself a nuisance, he is not vicariously liable for the
negligent acts of the contractor in the performance of the contract." Puckrein v.
ATI Transp., Inc., 186 N.J. 563, 574 (2006). However, there are three
exceptions to the general rule that principals are not liable for the negligent acts
of the independent contractors they hire: (1) "where the [principal] retains
control of the manner and means of doing the work which is subject to the
contract;" (2) "where [the principal] engages an incompetent contractor;" or (3)
"where . . . the activity contracted for constitutes a nuisance per se." Majestic
Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).
Here, plaintiff concedes that Rosso and Meadowlands performed none of
the construction work and did not exercise any control over the "manner and
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means" in which the work was performed by Silva and Mecorp. Rather, plaintiff
relies on the second and third exceptions in arguing the court committed error
in finding defendants not liable for the actions of Silva, Mecorp, and any other
unapproved contractor.
Specifically, plaintiff claims that because Rosso obtained the initial
construction permit and listed Meadowlands as the general contractor, he
"allowed for an incompetent, unauthorized, and unlicensed person to perform
regulated work" on plaintiff's property and further maintains that the "practice
by which contractors lend out to others the right to use their permit" constitutes
a clear nuisance. Based on the summary judgment record, the court correctly
rejected plaintiff's claims.
First, as plaintiff conceded, Rosso never engaged a contractor to perform
the renovation work. Second, there is no support in the record for plaintiff's
claim that Rosso "lent his license" or "sold use of the permit for cash." 2 Instead,
2
We acknowledge that the trial judge commented it was his "impression" that
defendants "probably" lent out the construction permit and that, based on his
experience as a practicing attorney, he believed defendants "fraudulently
obtained the building permit on behalf of another unlicensed contractor ." The
court's statements are not Rule 1:7-4 findings of fact, as they are unsupported
by the motion record.
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the competent evidence before the court supports the conclusion that Rosso,
when approached by Dominguez, and with the belief Meadowlands would
ultimately be named the general contractor, obtained the construction permit and
took no direct or indirect actions with respect to the project thereafter.3
Third, the construction activity at issue here – installing exhaust ducts and
the attendant drilling of holes in a roof – are not inherently dangerous activities
that could be considered a nuisance per se and which would warrant the
imposition of liability upon defendants. Indeed, nothing in the record suggests
the construction work was uncommon, involved a high risk of harm, or required
any special precaution. Majestic Realty Assocs., Inc., 30 N.J. at 435-36.
Fourth, plaintiff incorrectly claims that the court's decision "provide[s] a
liability shield for damages directly attributable to the fraud" and "undermine[s]
the regulatory scheme of the Department of Community Affairs [(DCA)] . . . ."
As we have noted, the court's "finding" that defendants acted fraudulently is
unsupported by the record. And, although we acknowledge that the State
Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141, requires the
3
We also note that plaintiff failed to establish, by expert testimony or otherwise,
that any independent contractor was unskilled or incompetent to perform the
remodeling work. In fact, after construction was completed, Union City issued
a certificate of occupancy.
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issuance of a permit for the construction or alteration of any building or
structure, see N.J.S.A. 52:27D-130, there is no competent evidence in the record,
expert or otherwise, to support plaintiff's claim that defendants' failure to
withdraw the October 7, 2009 construction permit with Union City caused
plaintiff's damages.
Finally, defendants claim, as they did in the trial court, that plaintiff failed
to present any expert testimony to support his claim that the water infiltration
was caused by defendants' negligence. We agree. Although the court did not
reach this issue, we conclude that the lack of expert proofs was fatal to plaintiff's
claims and provides an independent basis to affirm.
"In general, expert testimony is required when 'a subject is so esoteric that
jurors of common judgment and experience cannot form a valid conclusion.'"
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993). If a jury's
determination is a "difficult, intricate, and sophisticated . . . task," a party must
generally "secure the assistance of appropriate experts." Torres v. Schripps,
Inc., 342 N.J. Super. 419, 435-36 (App. Div. 2001).
Here, plaintiff alleged that his damages were caused by defendants'
negligent installation of exhaust vents. However, as plaintiff admitted, the
property was a 164-year-old building in 2016, was in "bad shape," and had
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undergone prior roof repairs. We conclude that expert testimony was required
to determine the cause of the water damage.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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