STATE OF NEW JERSEY VS. JOSHUA M. GREENÂ (12-02-0322, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4292-13T3
THE PALISADES AT FORT LEE
CONDOMINIUM ASSOCIATION, INC.,
Plaintiff-Appellant,
v.
100 OLD PALISADE, LLC., CRESCENT
HEIGHTS OF AMERICA, INC., CRESCENT
HEIGHTS ACQUISITIONS, LLC, 100 OLD
PALISADE HOLDINGS, LLC, 100 OLD
PALISADE HOLDINGS II, LLC, 100
OLD PALISADE HOLDINGS III, LLC.,
EREZ BASHARI, PEIRU WEN, LENNY
WARSHAW, NISSIM LANCIANO, SHARON
CHRISTENBURY, JOSEPH ZDON, PABLO
DE ALMAGRO, EPHRAIM BASHARI,
SONNY KAHN, individually and as
Trustee of the SK Business Trust,
SK BUSINESS TRUST, RUSSELL
W. GALBUT, individually and as
Trustee of the RF Business Trust,
RF BUSINESS TRUST, BRUCE A. MENIN,
individually and as Trustee of the
MENIN 1998 FAMILY TRUST, MENIN 1998
FAMILY TRUST, F&G MECHANICAL CORP.,
MANNIX EXTERIOR WALL SYSTEMS, INC.,
SOUTH SHORE CONTRACTING, INC.,
PATWOOD CONTRACTING CO., INC.,
d/b/a PATWOOD ROOFING, MTA CORP.,
MAARV WATERPROOFING, B&B IRON
WORKS, INC., RAY ENGINEERING, INC.,
STEVEN W. RAY, P.E., METRO GLASS,
INC., and ROMITCH CO.,
Defendants,
and
AJD CONSRUCTION CO., INC., LUXURY
FLOORS, INC., BENFATTO MASONRY, INC.,
and FORSA CONSTRUCTION, INC.,
Defendants-Respondents.
______________________________________
100 OLD PALISADE, LLC., CRESCENT
HEIGHTS OF AMERICA, INC., CRESCENT
HEIGHTS ACQUISITIONS, LLC, 100 OLD
PALISADE HOLDINGS, LLC, 100 OLD
PALISADE HOLDINGS II, LLC, 100
OLD PALISADE HOLDINGS III, LLC.,
EREZ BASHARI, PEIRU WEN, LENNY
WARSHAW, NISSIM LANCIANO, SHARON
CHRISTENBURY, JOSEPH ZDON, PABLO
DE ALMAGRO, EPHRAIM BASHARI,
SONNY KAHN, individually and as
Trustee of the SK Business Trust,
SK BUSINESS TRUST, RUSSELL
W. GALBUT, individually and as
Trustee of the RF Business Trust,
RF BUSINESS TRUST, BRUCE A. MENIN,
individually and as Trustee of the
MENIN 1998 FAMILY TRUST, MENIN 1998
FAMILY TRUST,
Defendants/Third-Party
Plaintiffs,
v.
APPLIED PROPERTY MANAGEMENT CO.,
INC., a/k/a APPLIED DEVELOPMENT
COMPANY, IRONSTATE DEVELOPMENT
COMPANY, a/k/a IRONSTATE DEVELOPMENT,
LLC, IRONSTATE HOLDINGS, LLC.,
COSTAS KONDYLIS & ASSOCIATES, P.C.,
COSTAS KONDYLIS & PARTNERS, LLP.,
CONSTANTINE A. KONDYLIS, a/k/a
COSTAS KONDYLIS, GOLDSTEIN
ASSOCIATES CONSULTING ENGINEERS,
P.C.,
Defendants/Third-Party
Defendants.
______________________________________________
2 A-4292-13T3
AJD CONSTRUCTION CO., INC.,
Third-Party Plaintiff,
v.
PATWOOD CONTRACTING CO., INC.,
d/b/a PATWOOD ROOFING, MTA
CORP., MAARV WATERPROOFING, INC.,
BENFATTO CONSTRUCTION CORP.,
B&B IRON WORKS, INC.,
Third-Party Defendants.
______________________________________________
SOUTHSHORE CONTRACTING, INC.,
Third-Party Plaintiff,
v.
ARQ PAINTING & CONTRACTING, INC.,
Third-Party Defendant.
_____________________________________________
APPLIED PROPERTY MANAGEMENT CO., INC.,
THE PALISADES A/V COMPANY, LLC,
APPLIED PALISADES, LLC, APPLIED
DEVELOPMENT COMPANY, INC., improperly
pleaded as d/b/a APPLIED DEVELOPMENT
COMPANY, IRONSTATE DEVELOPMENT, LLC,
IRONSTATE HOLDINGS, LLC,
Fourth-Party Plaintiffs,
v.
WENTWORTH PROPERTY MANAGEMENT
CORPORATION, WORTHMORE CONSTRUCTION
& MAINTENANCE CO., INC.,
Fourth-Party Defendants.
_____________________________________________
Argued November 10, 2015 – Decided February 1, 2016
3 A-4292-13T3
Before Judges Yannotti, Guadagno and
Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-2306-09.
Raymond A. Garcia (Garcia & Milas, P.C.) of
the Connecticut bar, admitted pro hac vice,
argued the cause for appellant (Lum, Drasco
& Positan, LLC, and Mr. Garcia, attorneys;
Paul A. Sandars, III, of counsel; Mr. Garcia,
Mr. Sandars and Nicole Liguori Micklich
(Garcia & Milas, P.C.) of the Connecticut
and Rhode Island bar, on the brief).
John H. Osorio argued the cause for
respondent AJD Construction, Co., Inc.
(Marshall Dennehey Warner Coleman & Goggin,
attorneys; Pauline F. Tutelo, on the brief).
Stephen C. Cahir argued the cause for
respondent Luxury Floors, Inc. (Law Offices
of William E. Staehle, attorneys; Mr. Cahir,
on the brief).
Mark D. Shifton argued the cause for
respondent Benfatto Construction Corp.
(Seiger Gfeller Laurie, L.L.P., attorneys;
Mr. Shifton, of counsel; Mr. Shifton and
Chester R. Ostrowski, on the brief).
Eric S. Schlesinger argued the cause for
respondent Forsa Construction (Golden,
Rothschild, Spagnola, Lundell, Boylan &
Garubo, P.C., attorneys; Mr. Schlesinger and
Russ M. Patane, of counsel; Mr. Schlesinger,
Mr. Patane and Daniel C. Seger, on the
brief).
Gene Markin argued the cause for amicus
curiae Community Association Institute
(Stark & Stark, P.C., attorneys; Mr. Markin
and John Randy Sawyer, on the brief).
PER CURIAM
4 A-4292-13T3
The Palisades at Fort Lee Condominium Association, Inc.
(plaintiff or Association) appeals from orders entered by the
trial court on March 28, 2014, which granted summary judgment in
favor of defendants AJD Construction Co., Inc. (AJD), Forsa
Construction LLC (Forsa), Benfatto Construction Corp.
(Benfatto), and Luxury Floors, Inc. (Luxury). Plaintiff also
appeals from an order entered by the trial court on May 9, 2014,
which denied its motion for reconsideration. We reverse.
I.
The Palisades is a condominium located in the Borough of
Fort Lee, which contains an eleven-story parking structure, a
thirty-story residential tower, an open plaza and other
facilities. The Palisades has 538 residential dwellings and
units for commercial use. It appears that in the late 1970s, a
six-story parking garage had been built on the site but it
remained unfinished and unused.
In 1998, Palisades A/V Acquisitions Co., LLC (A/V)
purchased the parking garage and adjacent property and
contracted with AJD to construct five additional floors on the
garage, the plaza, the residential tower and other facilities.
AJD hired various subcontractors to perform the work, including
Forsa, Benfatto and Luxury.
Forsa built the addition to the garage and the building
structure. Benfatto constructed the exterior masonry walls, and
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Luxury installed the finished floors in the common areas. In May
2002, construction was substantially completed, although
plaintiff claims some work continued to be performed until
October 2002.
A/V thereafter operated The Palisades as a rental property
for about two years. On June 28, 2004, A/V sold the property to
100 Old Palisade, LLC (Old Palisade), which began the process of
converting it to the condominium form of ownership, pursuant to
the New Jersey Condominium Act (NJCA), N.J.S.A. 46:8B-1 to -38,
and filed an application for registration of the condominium
with the New Jersey Department of Community Affairs, as required
by the Planned Real Estate Development Full Disclosure Act
(PREDFDA), N.J.S.A. 45:22A-21 to -56.
In January 2005, Old Palisade issued a public offering
statement, which included an engineering report prepared by Ray
Engineering, Inc. (Ray Engineering). Old Palisade also filed a
master deed which established The Palisades as a condominium. In
the public offering statement and master deed, Old Palisade is
identified as the sponsor of the conversion to condominium
ownership.
Among other things, the master deed provides that upon its
filing, the sponsor shall be the owner of every unit, the
applicable related percentages of the property's common
elements, and certain limited common elements, which include the
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parking spaces, terraces accessible from a unit, and storage
areas. The master deed states that the Association had been
established and would have responsibility for the
administration, operation and management of the condominium, the
common elements and its facilities.
According to the master deed, the Association acts through
its Board of Directors (Board), pursuant to applicable law and
its by-laws. Initially, the sponsor has control of membership of
the Board. However, pursuant to NJCA, as units are conveyed,
membership of the Board expands, and Board members selected by
the sponsor are gradually replaced by members chosen by the unit
owners. Upon the sale of 75% of the units, full control of the
Board is transferred to the unit owners.
The master deed further provides that the unit owners are
responsible for the maintenance and repair of their individual
units. The Association has responsibility for the maintenance
and repair of the common elements of the property, as defined in
the master deed. The Association is authorized to impose annual
common expense assessments upon the unit owners to maintain the
exterior of the building and the common elements. In addition,
the Association is responsible for maintenance and repairs
required in the limited common elements, although the
Association may pass those costs along to individual unit owners
who derive a benefit from those elements.
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In July 2006, following the sale of the required number of
units, the unit owners gained full control of the Association's
Board. The Association then retained The Falcon Engineering
Group (Falcon) to undertake an engineering evaluation of the
property. In May 2007, Falcon produced a report, which
identified various construction defects in the property,
including defects to the exterior walls, parking garage, roofs
and plaza terraces, and the landscaping. Falcon provided the
report to the Association's Board on June 13, 2007.
On March 12, 2009, plaintiff filed a complaint in the Law
Division asserting claims against various parties, including
persons and entities involved in the conversion of the property
to condominium ownership. Plaintiff also asserted claims against
AJD, Luxury Floors and other parties that performed construction
work on the property.
Plaintiff alleged that the construction defendants had
performed their work in a negligent, reckless and careless
manner; and also breached expressed and implied warranties
pertaining to the work. The claims against the construction
defendants were based on the findings in the Falcon Report.
Thereafter, plaintiff amended its complaint eight times.
Plaintiff asserted claims against Benfatto in the Second Amended
Complaint, which was filed on December 3, 2009. It asserted
claims against Forsa in the Fifth Amended Complaint, which was
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filed on April 21, 2011. Plaintiff alleged that Benfatto and
Forsa, like the other defendant contractors, were negligent,
reckless and careless in the performance of their work on the
project, and breached expressed and implied warranties related
thereto. In addition, various third and fourth-party claims were
asserted during the course of the trial court proceedings.
II.
The claims against all parties eventually were resolved,
except for plaintiff's claims against AJD, Forsa, Benfatto and
Luxury. After discovery was complete, these defendants filed
motions for summary judgment, arguing that plaintiff had not
asserted its claims against them within the time required by
N.J.S.A. 2A:14-1. Plaintiff opposed the motions. The judge heard
oral argument and thereafter filed a written opinion, in which
he concluded that the motions should be granted.
In his opinion, the judge noted that, under N.J.S.A. 2A:14-
1, a cause of action for any tortious injury to property or for
recovery on a contract claim must be commenced within six years
after the cause of action has accrued. The judge stated that in
construction cases, the cause of action accrues at the time of
substantial completion of a party's work. The judge observed,
however, that in certain circumstances, the discovery rule may
apply, and the cause of action will not accrue until the injured
9 A-4292-13T3
party discovers, or should reasonably have discovered, that it
has a basis for an actionable claim.
The judge wrote that, in this case, the six-year statute of
limitations began to run on May 1, 2002, which was the date upon
which the building was deemed substantially complete. The judge
noted that the unit owners assumed control of the Association's
Board in July 2006, and Falcon produced its engineering report
in May 2007. The judge observed that some construction defects
previously had been identified in Ray Engineering's report,
which was included in the sponsor's public offering statement.
The judge wrote that when plaintiff received Ray
Engineering's report "nearly two years remained on the statute
of limitations." The judge added that, even if plaintiff was
not reasonably aware of the construction defects until Falcon
issued its report in May 2007, plaintiff still had one year in
which to bring timely claims against defendant contractors.
The judge concluded that plaintiff had not filed its claims
against defendants within the time required by N.J.S.A. 2A:14-1.
The judge rejected plaintiff's argument that the discovery rule
applied, stating that plaintiff "was reasonably aware of an
injury within the statutory time frame and had [an] ample amount
of time to seek recourse."
The judge also rejected plaintiff's contention that the
statute of limitations should not begin to run until it was
10 A-4292-13T3
established and the unit owners took control of the Board. The
judge pointed out that A/V had contracted with AJD to construct
a building with rental apartments. Thereafter, A/V sold the
property to Old Palisade, which converted the property to the
condominium form of ownership, at which point the Association
was established.
The judge wrote that defendant contractors could not have
reasonably anticipated that the Association would eventually be
formed and they would be "forever liable" for alleged
construction defects, notwithstanding the six-year statute of
limitations in N.J.S.A. 2A:14-1. The judge entered orders dated
March 28, 2014, granting defendants' motions.
Plaintiff thereafter filed a motion for reconsideration,
which defendants opposed. The judge filed an order dated May 9,
2014, denying the motion. In a statement attached to the order,
the judge wrote that plaintiff had not presented any evidence or
legal arguments which warranted reconsideration of the orders
granting summary judgment to defendants. Plaintiff's appeal
followed.
III.
On appeal, plaintiff argues that the motion judge erred by
finding that the six-year statute of limitations in N.J.S.A.
2A:14-1 began to run when the construction project was deemed to
be substantially complete. Plaintiff contends that its claims
11 A-4292-13T3
for construction defects accrued in June 2007, which was after
the unit owners took control of the Board and it received
Falcon's report detailing the alleged deficiencies in
defendants' construction work.
When reviewing an order granting a motion for summary
judgment, we apply the same standard that governs the trial
court's ruling on the motion. Town of Kearny v. Brandt, 214 N.J.
76, 91 (2013). Rule 4:46-2(c) provides that summary judgment may
be granted when the record before the court "show[s] 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."
However, when the grant or denial of summary judgment is
based on an issue of law, an appellate court owes no deference
to the trial court's "interpretation of law that flows from
established facts." State v. Perini Corp., 221 N.J. 412, 425
(2015) (citing Kearny, supra, 214 N.J. at 92). Determining the
date upon which a statute of limitations begins to run is an
issue of law, subject to plenary review. Kearny, supra, 214 N.J.
at 92.
We note initially that, in its written submission to the
trial court, plaintiff conceded that the construction work on
the project was substantially completed on May 1, 2002. At oral
argument on defendants' motions, plaintiff's counsel told the
12 A-4292-13T3
motion judge plaintiff agreed that May 1, 2002, was the date of
substantial completion of the work. On appeal, however,
plaintiff appears to challenge that fact.
In its brief, plaintiff asserts that the contract between
A/V and AJD provides that the date of substantial completion is
the date so certified by the project's architect. According to
plaintiff, the project's architect never certified to the
Borough that the project had been completed in accordance with
the specifications and applicable codes.
In addition, plaintiff asserts that in 2004, an architect
employed by A/V's parent company sent a letter to the Borough
stating that the building was substantially complete on May 1,
2002. Plaintiff states that this letter was not a certificate of
substantial completion, and it did not comply with the contract
or applicable requirements of the American Institute of
Architects. Plaintiff also asserts that a certificate of
substantial completion was never issued for the project.
We are convinced that plaintiff is bound by the position it
took in the trial court in responding to defendants' motions,
and should not be permitted to raise for the first time on
appeal an issue of fact regarding the date of substantial
completion. Siddons v. Cook, 382 N.J. Super. 1, 12 (App. Div.
2005). Accordingly, we will assume for purposes of our decision
13 A-4292-13T3
that the construction work on the project was substantially
complete on May 1, 2002.
We also note that, in its brief, plaintiff suggests that it
asserted claims against AJD, Forsa, Benfatto and Luxury pursuant
to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.
However, a review of plaintiff's nine complaints indicates that
plaintiff only asserted claims under the CFA against those
parties involved with the condominium conversion. Plaintiff
never asserted claims under the CFA against the construction
defendants.
IV.
We turn to plaintiff's contention that the motion judge
erred by concluding that plaintiff's causes of action against
defendants accrued on May 1, 2002, when the construction work on
the project was deemed to be substantially complete.
As the motion judge recognized, N.J.S.A. 2A:14-1 provides
in pertinent part that a claim for tortious injury to real
property or for recovery on a contract claim "shall be commenced
within [six] years after the cause of such action shall have
accrued." The statute does not define when a cause of action
accrues, and that issue has "been left entirely to judicial
interpretation and administration." Russo Farms v. Vineland Bd.
of Ed., 144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New
Brunswick, 51 N.J. 130, 137 (1968)). The courts have determined
14 A-4292-13T3
that a cause of action accrues when the right to institute a
suit first arises. Ibid. (citations omitted).
Here, the motion judge correctly stated that in
construction defect cases, the statute of limitations generally
begins to run upon substantial completion of the work. In
Mahony-Troast Constr. Co. v. Supermarkets Gen. Corp., 189 N.J.
Super. 325, 329 (App. Div. 1983), we observed that "the statute
of limitations on an action for deficiencies in design or
construction commences to run upon substantial completion of the
structure." See also Russo Farms, supra, 144 N.J. at 115-16
(citing Mahony-Troast and noting that the Appellate Division has
determined that "the date of substantial completion is to be
used for statute of limitations purposes" in construction defect
cases).
Our decision in Trinty Church v. Lawson-Bell, 394 N.J.
Super. 159 (App. Div. 2007), also supports the conclusion that
in general a cause of action accrues on a construction-defect
claim at the time of substantial completion. There, the parties
had entered into contracts to perform construction work on a
church. Id. at 163. The contracts provided that any cause of
action arising under the agreements shall be deemed to accrue
and the applicable statute of limitations commence to run not
later than the date of substantial completion. Ibid. We held
that the relevant provisions of the contracts were consistent
15 A-4292-13T3
with the general principle that the statute of limitations in
construction-defect cases begins to run at the time of
substantial completion of the work. Id. at 170-71.
V.
As indicated in Trinity Church, although a cause of action
in a construction-defect case generally accrues at the time of
substantial completion, the date of accrual may be delayed by
application of the discovery rule or other equitable
considerations. Id. at 171. We are convinced that, under the
circumstances presented in this case, plaintiff's causes of
action did not accrue until the unit owners took full control of
the Association's governing Board, and the Board had sufficient
facts upon which to assert actionable claims against defendant
contractors.
A condominium association has responsibility for
"maintenance, repair, replacement, cleaning and sanitation of
the common elements" of the condominium. N.J.S.A. 46:8B-14(a).
The association has exclusive authority to prosecute claims
regarding the common elements, and the "unit owners may not
pursue individual claims for damages to or defects in the common
elements predicated upon their tenant in common interest."
Siller v. Hartz Mountain Assoc., 93 N.J. 370, 380 (1983).
However, if the association refuses to enforce rights that it is
16 A-4292-13T3
authorized to assert, a unit owner could pursue a derivative
claim on behalf of the association. Id. at 381.
Here, the record shows that AJD performed its work pursuant
to its contract with A/V, and Forsa, Benfatto and Luxury
performed their work as AJD's subcontractors. After the project
was substantially complete and certificates of occupancy issued,
A/V operated the building as a rental dwelling for two years.
The property was not converted to the condominium form of
ownership until January 2005, when the sponsor issued the public
offering statement and filed the master deed.
The Association was established at that time, but the
sponsor controlled the Board as provided by the NJCA, the master
deed and the relevant condominium documents. The unit owners did
not assume full control of the Board until July 2006, after the
requisite number of units had been sold. Notably, while the
sponsor had control of the Board, neither the sponsor nor the
Association pursued any claims against the contractors for
construction defects in the common elements.
Although under Siller, a unit owner could have brought
derivative claims on behalf of the Association against the
contractor defendants for construction defects in the common
elements, the unit owners were not compelled to do so. Indeed,
it would be unreasonable for the statute of limitations to run
on the claim of a condominium association, unless a unit owner,
17 A-4292-13T3
or group of unit owners, took on that responsibility. We are
convinced that, under the circumstances, the statute of
limitations could not begin run on the Association's claims
until the unit owners had full control of the governing Board.
Furthermore, the Association did not have all of the facts
necessary to support actionable claims against defendants until
the Board received the Falcon report on June 13, 2007. The
motion judge noted that the Ray Engineering report, which had
been included in the public offering statement issued upon the
conversion of property to condominium ownership, had identified
some construction defects in the buildings.
However, the Falcon report provided a more detailed
analysis of the property and identified construction defects
that had not been mentioned in the Ray Engineering report.
Indeed, in their complaint, plaintiff asserted a claim of
professional negligence against Ray Engineering, alleging that
it had been negligent and reckless in failing to disclose the
existence of certain major structural and mechanical system
defects in the property.
Thus, the unit-owner-controlled Board was not reasonably
aware that it had actionable claims regarding the full range of
construction defects until it received the Falcon report on June
13, 2007. We conclude that the Association's causes of actions
against defendant contractors accrued at that time.
18 A-4292-13T3
Defendants argue, however, that plaintiff should not be
entitled to the benefit of the discovery rule. Defendants
contend that by at least May 2007, when Falcon produced its
report, plaintiff still had a reasonable time in which to assert
claims within six years of the date of substantial completion of
the work. Defendants therefore argue that the causes of action
accrued at the time of substantial completion.
We do not agree. N.J.S.A. 2A:14-1 states that a claim must
be asserted within six years after its accrual. Thus, by its
plain terms, the statute indicates that a claimant would have
the benefit of the full limitations period to file its complaint
after the cause of action has accrued. Here, plaintiff's causes
of action against defendant contractors did not accrue until
June 13, 2007, when the unit-owner-controlled Board received
Falcon's report.
Plaintiff had six years from that date in which to assert
its claims. Plaintiff filed its initial complaint in May 2009,
naming AJD and Luxury as defendants. It asserted claims against
Benfatto in 2009, and against Forsa in 2011. The claims were
timely filed. See Caravaggio v. D'Agostini, 166 N.J. 237 (2001)
(noting that, although the plaintiff had discovered his claim
for malpractice prior to the expiration of the statute of
limitations, the plaintiff would "ordinarily" be allowed the
full limitations period in which to bring his action); Fox v.
19 A-4292-13T3
Passaic Gen. Hosp., 71 N.J. 122 (1976) (holding that limitations
period does not commence until harm to the plaintiff is
reasonably apparent or ascertainable).
In addition, Luxury notes that plaintiff has alleged that
the floor slabs in the common areas are not flat and level.
Luxury argues that plaintiff and the unit owners should have
been aware from the date of construction in 2001 of these
alleged deficiencies in the flooring. However, as we have
explained, the statute of limitations did not begin to run until
the unit owners had full control of the Association's governing
Board and it had sufficient facts upon which to assert its
claims for construction defects. Even if the unit owners knew or
should have known of the defective floors in the common areas
sometime before June 13, 2007, the time in which the Association
could assert those claims did not begin to run until the unit
owners controlled the Board.
The motion judge also observed that it would be unfair to
allow the Association to assert its claims against defendant
contractors because defendants could not have reasonably
anticipated that the property would be converted to a
condominium, that the Association would eventually be formed,
and that they would be "forever liable" for the alleged
construction defects.
20 A-4292-13T3
However, it is well established that the statute of
limitations could be tolled by application of the discovery rule
or equitable considerations. Trinity Church, supra, 368 N.J.
Super. at 171. Even so, defendants would not be "forever liable"
for the alleged construction defects.
The statute of repose in N.J.S.A. 2A:14-1.1(a) provides
that:
No action, whether in contract, in tort, or
otherwise, to recover damages for any
deficiency in the design, planning,
surveying, supervision or construction of an
improvement to real property, . . . arising
out of the defective or unsafe condition of
an improvement to real property, nor any
action for contribution or indemnity for
damages sustained on account of such injury,
shall be brought against any person
performing or furnishing the design,
planning, surveying, supervision of
construction or construction of such
improvement to real property, more than 10
years after the performance or furnishing of
such services and construction.
The ten-year limitations period in the statute of repose
"generally commences one day after issuance of the certificate
of substantial completion for the project." Perini Corp., supra,
221 N.J. at 427 (citing Russo, supra, 144 N.J. at 118). The
purpose of the statute was to limit the expanding liability of
contractors, including an expansive application of the discovery
rule. Horosz v. Alps Estates, Inc., 136 N.J. 124, 128 (1994)
(citing Newark Beth Israel Hosp. v. Gruzen, 124 N.J. 357, 362
21 A-4292-13T3
(1991)). Therefore, the motion judge's statement that defendants
would be "forever liable" for the construction defects is
unfounded.
Reversed and remanded for further proceedings in conformity
with this opinion. We do not retain jurisdiction.
22 A-4292-13T3