MUSIC STATION, INC. v. AJD CONSTRUCTION COMPANY, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0675-06T10675-06T1

MUSIC STATION, INC.,

Plaintiff-Appellant,

v.

AJD CONSTRUCTION COMPANY,

VIBRA-TECH ENGINEERS, INC.,

JERSEY CITY, THE EVENING

JOURNAL ASSOCIATION,

Defendants-Respondents,

2854 KENNEDY L.L.C., A/K/A

THE ALPERT GROUP, JERSEY

CITY REDEVELOPMENT AGENCY,

CAP SERVICES, INC.,

Defendants,

and

AJD CONSTRUCTION COMPANY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

LINDE-GRIFFITH CONSTRUCTION

CO., Z&Z CONSTRUCTION COMPANY,

Third-Party Defendants-

Respondents.

 

Submitted July 3, 2007 - Decided July 30, 2007

Before Judges Axelrad and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-1020-04.

Abraham Borenstein & Associates, attorneys for appellant (Abraham Borenstein and Joshua I. Heller, on the brief).

Carroll, McNulty & Kull, attorneys for respondent, AJD Construction Company, Inc. (Lori Williams, on the brief).

Lester Schwab Katz & Dwyer, attorneys for respondent, Vibra-Tech Engineers, Inc. (Richard Granofsky, of counsel and on the brief).

Robinson & Livelli, attorneys for respondent, Evening Journal Association (Keith J. Miller, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas, attorneys for respondent, Linde-Griffith Construction Company (Frank J. Kontely, III, on the brief).

Michael C. Urciuoli, attorney for respondent, Z&Z Construction Company (Jeffrey S. Raefski, on the brief).

PER CURIAM

Plaintiff, a former tenant of one of the defendants, The Evening Journal Association (Evening Journal), alleges that it suffered damages as a result of vibrations caused by pile driving on an adjacent property. Plaintiff appeals from multiple trial court orders that denied his motion to extend discovery; barred his expert; granted summary judgment to all defendants; and awarded sanctions against plaintiff's counsel. On appeal, plaintiff raises the following points:

POINT I.

THE LOWER COURT IMPROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

a. The Lower Court Erroneously And Prematurely Granted VibraTech's Motion For Summary Judgment Prior To The Advent Of Discovery.

b. The Lower Court Inappropriately Granted Summary Judgment to Evening Journal Despite Its Breach of Music's Quiet Enjoyment.

c. The Lower Court Improperly Granted Summary Judgment to The Remaining Defendants Even Though Issues Of Fact Exist Under The Doctrine Of Res Ipsa Loquitur.

POINT II.

THE COURT IMPROPERLY BARRED PLAINTIFF'S EXPERT REPORT, WHICH WOULD HAVE ABROGATED THE NEED TO RELY EXCLUSIVELY ON RES IPSA.

POINT III.

SANCTIONS AGAINST MUSIC'S COUNSEL ARE AN ABUSE OF DISCRETION AND ERROR, ESPECIALLY PRIOR TO DISCOVERY AND, AT THE VERY LEAST, WERE EXCESSIVE.

a. Discovery Deduced That VibraTech Was Actively Inspecting The Damaged Store During the Course of Construction Foreclosing Its Argument That The Complaint Against VibraTech Was Frivolous.

b. The Court's Sanctions Were In The Very Least Excessive.

Having given careful consideration to plaintiff's arguments in light of the record, we affirm each order from which plaintiff has filed an appeal.

I.

The facts before the trial court may be summarized as follows. Plaintiff, Music Station, Inc. (Music Station), is a corporation that operated a retail music store at 2866 Kennedy Boulevard in Jersey City. Defendant 2854 Kennedy L.L.C. owned the adjacent property. Plaintiff alleges that in late September 2003 the vibrations from pile driving performed on Kennedy's property by defendant AJD Construction Company (AJD) and third-party defendant Linde-Griffith Construction Company, the subcontractor AJD hired to perform the pile driving, caused foundation damage and cracks in the building that plaintiff leased from Evening Journal. After the cracks were observed by representatives of plaintiff and Evening Journal, engineers retained by Evening Journal also discovered that the building's foundation had shifted and settled.

Immediately after discovering the damage, plaintiff contacted representatives of its landlord, who viewed the damage and contacted defendant Jersey City. Representatives of the City's building department and fire department arrived on-scene and ordered plaintiff to vacate the premises until AJD could "shore[] up the side of [the] building." In a letter dated September 29, 2003, and in a more extensive report dated January 5, 2004, experts retained by Evening Journal concluded that the damage to the building had been caused by the construction and that the premises should be vacated.

Vibra-Tech Engineers, Inc. (Vibra-Tech) was hired to monitor the construction. Vibra-Tech began conducting vibration monitoring on October 9, 2003. It noticed that all of the piles near the Music Station premises had already been driven and that there was "substantial damage . . . [that] did not exist at the time of [a] Pre-Construction Inspection" of surrounding properties that Vibra-Tech had conducted.

The City issued two stop work orders to AJD; one in September 2003, and the other in December 2003. The December 26, 2003 stop work order informed AJD that "it appears that work . . . conducted at the site has adversely effected the adjacent property." The City also twice ordered plaintiff to vacate the building, corresponding with the stop work orders issued to AJD; once, as noted, in September 2003, immediately after the cracks were discovered, and again in December 2003. After the initial stop work order, Mark Minyan, the proprietor of Music Station, was allowed to return to the premises starting in November; however, he could only "come in personally[,] [n]ot to do business." Minyan resumed business in December 2003. But, soon after, plaintiff was again ordered to vacate because the cracks in the basement wall were near the gas line.

Plaintiff did not resume doing business in the premises after it vacated in December 2003. In either July or August 2004, plaintiff relocated to 2828 Kennedy Boulevard. At his deposition, Minyan testified that he was never informed that Music Station's lease had been terminated, but he did receive a notice in late 2004 informing him, "[i]f you don't move your stuff out, it will be trashed," which he considered an eviction notice. A representative of Evening Journal testified at her deposition that Evening Journal never evicted plaintiff or terminated its lease, nor was the property condemned. She testified that Minyan was told that he could return to the building when the premises were repaired. Minyan testified that he did not pay rent to Evening Journal after the summer of 2003; he had received a letter from Evening Journal informing him he did not have to pay rent.

In its complaint, plaintiff alleged that Vibra-Tech negligently monitored AJD's construction activities, and was thus responsible for the damages to plaintiff's leased premises. The evidence shows that Vibra-Tech was initially hired to perform only pre- and post-construction inspections, to survey the buildings surrounding the construction site so as to provide a comparison of the condition of those buildings before and after construction. Though Vibra-Tech had initially offered to perform vibration monitoring services, AJD rejected the proposal. Thus, Vibra-Tech was not hired to provide vibration monitoring services as of September 2003, when plaintiff alleges the damage occurred, and did not begin monitoring until October 9, 2003. In fact, Vibra-Tech claims it was hired to "monitor vibrations as a direct result of the damages sustained by plaintiff."

II.

Against this factual backdrop, we next review the tortured procedural history preceding the dismissal of plaintiff's complaint. On February 19, 2004, plaintiff filed a five-count complaint against defendants AJD, Vibra-Tech, Evening Journal, the City, and a John Doe defendant. John Doe was the owner of the property adjacent to plaintiff's; that property owner was subsequently discovered to be defendant Kennedy, which hired AJD to perform construction on the property. Plaintiff alleged that Vibra-Tech failed to appropriately perform its monitoring activities. Plaintiff also alleged that the City owned the property adjacent to plaintiff's before Kennedy owned it and had conducted demolition that led to the eventual damage to plaintiff's property. Further, plaintiff claimed that Evening Journal failed to make appropriate repairs of the damage caused by the construction and thus, constructively evicted plaintiff.

In March 2004, plaintiff filed an amended complaint naming Kennedy as the owner of the adjacent premises. AJD filed a third-party complaint against the Linde-Griffith Construction Company, the subcontractor that performed the pile driving, seeking contribution and indemnification; AJD later amended the third-party complaint to add an additional third-party defendant.

In response to AJD's amended third-party complaint, plaintiff requested, by a letter dated February 28, 2005, that the discovery end-date be extended sixty days, from March 1, 2005 to April 29, 2005. By an April 29, 2005 order, Judge Messano granted plaintiff's motion to reinstate Kennedy as a defendant; the order gave plaintiff until May 15, 2005 to serve Kennedy and file proof of service. The court also granted plaintiff's motion to amend the complaint to add additional defendants, giving plaintiff until May 30, 2005 to serve those parties, defendants Cap Services, Inc. and the Jersey City Redevelopment Agency, with the complaint and all discovery. The order adjourned the trial, which had been set for May 18, 2005, and scheduled a case management conference for June 13, 2005.

On June 30, 2005, pursuant to the case management conference referenced in Judge Messano's April 29, 2005 order, the court ordered plaintiff to file all expert reports by December 16, 2005, with all expert depositions to be completed by April 1, 2006. At plaintiff's request, the court, on February 3, 2006, extended the discovery end-date to June 1, 2006; the court ordered that plaintiff serve all expert reports by April 15, 2006, with all expert depositions to take place before the discovery end-date. The court noted that if plaintiff's reports were not served by that date, they would be barred.

On May 13, 2005, Judge Charles granted summary judgment to Vibra-Tech. On January 10, 2006, he entered an order directing plaintiff's counsel to pay Vibra-Tech's attorneys' fees and costs pursuant to Rule 1:4-8. Following Vibra-Tech's submission of a certification of services, and consideration of plaintiff's motion for reconsideration of the order imposing sanctions, the court ordered plaintiff's counsel to pay Vibra-Tech $16,668.88. The counsel fee award was based on plaintiff's failure to dismiss Vibra-Tech from the litigation in light of the correspondence from Vibra-Tech representatives informing plaintiff that Vibra-Tech was not involved in the construction activity that damaged plaintiff's property.

Prior to answering the complaint, Vibra-Tech's chief executive officer sent a letter to plaintiff's counsel on May 28, 2004, requesting that Vibra-Tech be dismissed from the suit and informing plaintiff's counsel that Vibra-Tech did not, at any time, "perform any consulting, develop vibration criterion, or advise on the protection of the property"; supporting documentation was enclosed with the letter. Vibra-Tech asserted that it was retained to perform pre- and post-construction inspections of adjacent buildings to determine if there were structural changes to the buildings between the time construction started and ended, and that it was only asked to monitor vibrations after the period of time when plaintiff alleged its damages occurred. On June 3, 2004, a Vibra-Tech representative sent a follow-up letter, asserting that there was "no factual basis [for Vibra-Tech] to be included as a defendant in the litigation."

By order filed June 9, 2006, the court denied AJD's and Kennedy's motion to dismiss plaintiff's complaint; denied a motion to "furnish more discovery"; and barred plaintiff from presenting expert testimony at trial because of plaintiff's failure to submit expert reports, having excluded plaintiff's June 1, 2006 expert report as "very late." In its brief, plaintiff alleges that it attempted to procure an expert on April 4, 2006, which was before the discovery end-date; but, plaintiff's counsel maintains that he received the expert report unsigned on June 1, and was unable to obtain signature until June 5 because of a religious holiday falling on June 2. On August 4, 2006, the court denied plaintiff's motion to reconsider its decision barring plaintiff's expert report.

On August 18, 2006, Judge Tolentino granted summary judgment to AJD and Kennedy. By a separate order entered that day, the court granted summary judgment to Evening Journal. The judge, addressing plaintiff's failure to provide an expert, and its argument that res ipsa loquitur applied so that an expert report was not needed, stated,

I consider that this is not a[] [res] ipsa situation. . . . I find that the jury would need really the direction and the expert opinion here that could guide them.

I consider that there would be too much speculation if there were not experts with respect to the issue here of negligence and of the damages.

In its notice of appeal filed on October 2, 2006, plaintiff appealed from the following orders: the August 4, 2006 order, which denied plaintiff's motion to reconsider Judge Messano's order barring plaintiff's expert report; the August 10, 2006 order, which denied reconsideration of the imposition of attorney's fees and set the amount of attorneys' fees due Vibra-Tech; and the August 18, 2006 orders, which granted summary judgment to Kennedy, AJD and Evening Journal. Plaintiff has not appealed from the May 13, 2005 summary judgment dismissing Vibra-Tech as a defendant.

III.

We first address plaintiff's claim that the Law Division improperly granted summary judgment to Vibra-Tech prior to the completion of discovery. That argument is without merit. Plaintiff has not filed an appeal from the summary judgment dismissing Vibra-Tech from the case. It is only the order for sanctions from which plaintiff has taken an appeal. A notice of appeal must designate the order from which the appeal is taken. R. 2:5-1(f)3A. The order granting summary judgment to Vibra-Tech is not included in plaintiff's notice of appeal, and it is therefore not properly before us for review. See Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (orders not indicated in notice of appeal are not reviewable by appellate court), certif. denied, 168 N.J. 294 (2001).

Plaintiff's only claim on appeal as to Vibra-Tech concerns the sanctions the trial judge imposed upon plaintiff's counsel as a result of a violation of Rule 1:4-8. Rule 1:4-8(d) provides that sanctions for frivolous litigation may include reasonable counsel fees and other expenses. In reviewing an award under that rule, we apply an abuse of discretion standard. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). An "abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid.

Here, we find no such abuse of discretion. In addressing plaintiff's motion for reconsideration as to that issue, Judge Charles, in a decision from the bench on August 10, 2006, concluded that

plaintiff knew or should have known that there was no valid factual basis for . . . suing defendant Vibra-Tech. . . .

The . . . depositions of parties and witnesses taken after summary judgment was granted failed to develop a factual basis which would support a claim against Vibra-Tech and/or which would . . . provide a basis for . . . moving to reinstate the complaint against defendant Vibra-Tech. The Court would also note that on oral argument on this motion, the Court pointedly asked plaintiff's attorney whether depositions or any other discovery have revealed a basis for liability against defendant Vibra-Tech. His answer was in the negative.

The judge's reasoning was sound and supported by the record. As to the amount of the sanction, the court found that plaintiff did not establish that Vibra-Tech's attorney's claim as to the hours expended was excessive, abusive or outrageous; nevertheless, the court reduced Vibra-Tech's claim from $33,333.77 to $16,668.88. We find no abuse of discretion in that award.

IV.

Next we turn to plaintiff's argument that Judge Messano improperly barred plaintiff's expert report. That argument too is without merit.

The complaint was filed on February 19, 2004. Discovery was extended on multiple occasions, with the court eventually requiring that all expert reports be filed by April 15, 2006, with all expert depositions to be completed by June 1, 2006, the discovery end-date. It was not until June 2006 that plaintiff submitted an expert report. Plaintiff's argument that the expert report was submitted unsigned on June 1, and could not be submitted with a signature until June 5 is of no moment; both dates are beyond the April 15 deadline for submission of expert reports. Given the procedural posture of the case at the time Judge Messano barred plaintiff's expert, his decision did not constitute an abuse of discretion involving a clear error in judgment. See Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 279, 283 (App. Div. 1998) (discretionary decisions entitled to deference and not to be reversed absent abuse of discretion involving clear error in judgment); see also Il Grande v. DiBenedetto, 366 N.J. Super. 597, 610 (App. Div. 2004) (judge's rulings on discovery matters given deference by reviewing court absent abuse of discretion).

V.

We next turn to plaintiff's claim that the court improperly granted summary judgment to AJD and its subcontractors, those responsible for the pile driving activities. We again find no support for plaintiff's arguments. Plaintiff is unable, without the aid of expert testimony, to establish a proximate link between any of plaintiff's alleged injuries and the pile driving activities. An expert is necessary to testify as to the vibrations caused by the pile driving and their effects upon plaintiff's property; this subject matter is not within the ken of a lay juror. See Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) ("expert testimony is needed where the factfinder would not be expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony"). Simply because pile driving occurred next door to plaintiff's property does not mean that those activities caused damage to plaintiff's property, or, if they did, that the quantum of damages can be determined without the aid of an expert.

Plaintiff claims that no expert was necessary under the doctrine of res ipsa loquitur. That argument is misplaced. "The doctrine of res ipsa loquitur permits an inference of defendant's negligence 'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).

Here, plaintiff has not met that test. While the pile driving instrumentality was within defendants' control and there was no evidence that plaintiff's injuries were the result of its own voluntary acts, plaintiff is unable to establish that pile driving itself "ordinarily bespeaks negligence." Plaintiff has cited no authority for that proposition, and we are not convinced that pile driving, which is not an uncommon construction activity, without more, bespeaks negligence. Though no New Jersey case has addressed this issue, other jurisdictions have held that res ipsa is inapplicable to damages resulting from pile driving activities. See Ted's Master Serv., Inc. v. Farina Bros. Co., 178 N.E.2d 268, 269-70 (Mass. 1961) (res ipsa loquitur doctrine not applicable in actions for damage to plaintiff's buildings caused by defendant's pile driving operations); Momeier v. Koebig, 66 S.E.2d 465, 467 (S.C. 1951) (injuries to buildings or improvements by pile driving on adjoining property must rest in negligence); Ockman v. T. L. James & Co., 124 So. 2d 778, 779 (La. Ct. App. 1960) (res ipsa loquitur doctrine not applicable in case of damages allegedly caused by vibrations from defendant contractor's operations).

VI.

The only remaining issue addressed in plaintiff's brief that we will discuss in some detail is plaintiff's claim for constructive eviction against its landlord, Evening Journal. Plaintiff asserts that because its lease with Evening Journal provided plaintiff with the right of quiet enjoyment, and because Evening Journal failed to timely repair damages to the building plaintiff was renting, there are, "in the very least, . . . issues of fact regarding [Evening Journal's] liability for damages sustained by [plaintiff]." This argument is without merit.

First, as noted earlier, plaintiff does not have an expert to establish that there was, in fact, damage that needed repair to the building plaintiff was renting from Evening Journal. For that reason alone, plaintiff's claim against Evening Journal must fail.

Even more fundamental, plaintiff has failed to establish any wrongdoing by its landlord. A constructive eviction requires a wrongful act of a landlord. Weiss v. I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961); Duncan Dev. Co. v. Duncan Hardware, Inc., 34 N.J. Super. 293, 297 (App. Div.), certif. denied, 19 N.J. 328 (1955). If we were to assume, without deciding, for purposes of the summary judgment motion, that plaintiff was, in fact, required to permanently leave the premises as a result of the construction activities, that does not translate to a conclusion that plaintiff's landlord, Evening Journal, committed a wrongful act. An inference of wrongdoing on behalf of the landlord is "a sine qua non to constructive eviction." Id. at 358. Plaintiff has presented insufficient evidence to warrant an inference that Evening Journal committed a wrongful act.

Finally, we find plaintiff's arguments as to the remaining defendants to be without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). Accordingly, we affirm the dismissal of plaintiff's complaint as to all defendants.

 
Affirmed.

Piles are "vertical pieces of steel" used to "provide bearing for the foundation of [a] building." They are "driven into the ground" with a "piling driving rig," a "hammer driven by compressed air . . . a piece of equipment . . . supported by a crane that provides a percussive blow to the piece of steel to drive it into the ground." Construction professionals recognize that pile driving causes vibration.

According to AJD's senior vice president, it was Kennedy who hired Vibra-Tech; however, a certification from Vibra-Tech's office manager states that it was AJD who hired Vibra-Tech.

Plaintiff's complaint does not allege any damage resulting from any construction that may have resumed after the first stop work order. The only damage plaintiff alleges resulted from pile driving in September 2003.

The record does not contain the order dismissing Kennedy as a defendant.

April 4, 2006 was eleven days prior to the deadline Judge Messano set for submission of expert reports.

The parties did not include in their appendices summary judgment orders dismissing the remaining defendants; however, counsel for the remaining defendants were present at oral argument on the summary judgment motion, where Judge Tolentino stated, "I am granting all of the motions for summary judgment."

At the August 10, 2006 proceeding concerning plaintiff's motion for reconsideration, before signing the order, the court indicated that plaintiff was only asking for reconsideration of the ruling concerning counsel fees, and not of the summary judgment order. Likewise, plaintiff's moving papers in that proceeding only referenced the imposition of sanctions, not the summary judgment order.

(continued)

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July 30, 2007