STEVEN BAGLIVO et al. v. VENTROY ASSOCIATES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6898-03T36898-03T3

STEVEN BAGLIVO and

STATEWIDE PROPERTY SERVICES,

Plaintiffs-Respondents,

v.

VENTROY ASSOCIATES,

Defendant-Appellant.

_______________________________________________________________

 

Argued October 18, 2005 - Decided

Before Judges Coburn, Collester and Lisa

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, L-955-03.

Christopher J. Stanchina argued the cause for

appellant (Mr. Stanchina, on the brief).

Robert D. Herman argued the cause for respondents

(Mr. Herman, on the brief).

PER CURIAM

Plaintiffs sued defendant on various causes of action, but we are concerned only with the claim for the reasonable value of commercial construction work. Defendant moved for partial summary judgment as to seven of the invoices plaintiffs had submitted to defendant for construction work. The basis of the motion was that plaintiffs had failed to "produce reliable expert evidence justifying the alleged fair value of the services." The judge denied the motion, tried the case without a jury, and, after considering all the evidence, entered a $109,255 judgment for plaintiffs, which included $6,428 in prejudgment interest.

Defendant's appeal is limited to the order denying their motion for partial summary judgment. We affirm.

Nothing in the record suggests that defendant's motion was based on plaintiffs' failure to provide an expert report pursuant to a demand made under Rule 4:10-2(d). Instead it is based on defendant's dissatisfaction with the deposition testimony of Steven Baglivo, the proprietor of Statewide Property Services. When questioned about the work reflected in the seven invoices, and the reasonable value of that work, Baglivo repeatedly said that he would have to study the files before he could provide answers. Since he has been involved in the business for many years, he obviously had sufficient experience to testify to the reasonable value of his work, and intended to so testify, as his certification in opposition to defendant's motion for summary judgment attested:

Statewide performed all construction in a competent and reasonable manner. Additionally all the prices provided . . . were not arbitrary and took into account labor, materials, and profit.

. . .

We vehemently deny that any of our invoices were unjustly or inappropriately overinflated.

. . .

I intend to testify regarding the various construction projects in question since I am not only the owner of Statewide, but I have been involved in the construction trade for over fifteen years. Additionally, I intend to have my foreman/Director of Operations . . . who has also been involved in the building trades for a significant period of time, testify at trial.

During the argument on the motion, defendant's attorney stressed the inadequacy of Baglivo's deposition answers and claimed that plaintiffs had failed to supply reliable expert testimony. Plaintiffs' attorney argued, in essence, that Baglivo would be able to testify as to the reasonable value of the work performed. The judge denied the motion because he did "not believe that classic expert testimony is necessarily needed to deal with this type of claim." Our understanding of that ruling is that the judge believed that Baglivo, based on his years of experience in construction, would probably be able to testify as to the reasonable value of the work his company had performed for defendant. Certainly, a fair reading of Baglivo's deposition reflects his belief that he could do so based on his "knowledge, skill, [and] experience . . . ." N.J.R.E.

702. While it is true that Baglivo had not adequately prepared for his deposition on this subject by reading the billing files involved, there is no evidence that anyone had asked him to perform that task. If defense counsel was dissatisfied with Baglivo's answers, he could have adjourned the deposition until the files were produced and then questioned Baglivo about them in detail, after having obtained a court order if necessary. In that regard Rule 4:23-1(a) provides that "[i]f a deponent fails to answer a question propounded . . . the discovering party may move for an order compelling an answer . . . . When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order." We will assume for purposes of this opinion that plaintiffs were obliged, ultimately, to support their case with expert opinion testimony, whether from an independent expert or from Baglivo. But since there is nothing to indicate a demand by defendant for an expert's report pursuant to Rule 4:10-2(d), plaintiffs cannot be faulted for not providing one in response to defendant's motion for summary judgment. And since the record on the summary judgment motion contains substantial evidence indicating Baglivo's general ability to provide expert testimony at trial, we see no basis for reversing the order.

 
Affirmed.

(continued)

(continued)

5

A-6898-03T3

November 4, 2005