BERNIER LAUREDAN, M.D. v. GLC GROUP, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1535-08T31535-08T3

BERNIER LAUREDAN, M.D.

& IRVINGTON PEDIATRIC

ASSOCIATES,

Plaintiffs-Appellants,

v.

GLC GROUP, LLC,

MARK CALLER,

Defendants-Respondents.

 

Submitted June 16, 2009 - Decided

 
Before Judges Axelrad and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2826-07.

Dean R. Maglione, attorney for appellants.

Jeffrey R. Kuschner, attorney for respondents.

PER CURIAM

Plaintiff Bernier Lauredan, M.D. was a commercial tenant of defendant GLC Group, LLC, pursuant to a March 1, 1999 lease for a property at 22 Ball Street, Irvington. Defendant Mark Caller was GLC's representative. The lease contained an option to purchase. After defendants declined to honor plaintiff's attempt to exercise that option, plaintiff instituted a law suit in Essex County to enforce it. Plaintiff filed an amended complaint in March 2006, alleging the following causes of action: negligence (count one); breach of contract (count two); breach of the implied covenant to make repairs (count three); breach of the implied warranty of habitability (count four); unjust enrichment (count five); and tortious interference with economic advantage (count six).

In January 2007, Judge Rachel Davidson dismissed plaintiff's amended complaint without prejudice for failure to provide discovery. In May 2007, Judge Davidson dismissed counts two, three and four of plaintiff's amended complaint with prejudice. In June and July 2007, Judge Davidson respectively denied plaintiff's motion to reinstate his pleadings and his motion for reconsideration.

On August 10, 2007, plaintiff filed a second complaint against defendants, this time in Union County. That complaint contained the following causes of action: negligence (count one); breach of contract (count two); breach of the implied covenant to make repairs (count three); breach of the implied warranty of habitability (count four); unjust enrichment (count five); tortious interference with economic advantage (count six); harassment (count seven); intentional infliction of emotional distress (count eight); and negligent infliction of emotional distress (count nine). On September 20, 2007, except as to counts six, seven, eight and nine, Judge Chrystal dismissed that complaint with prejudice based on the entire controversy doctrine, in that plaintiff alleged the same causes of action that Judge Davidson had dismissed in the Essex County action.

After plaintiff amended his Union County complaint to include a cause of action for breach of the implied warranty of habitability, defendants moved for summary judgment to dismiss all counts of the complaint. Judge Wertheimer heard that motion on January 4, 2008. He characterized defendants' motion as encompassing the following issues:

The issues before this court are whether certain facts pled by plaintiffs should be barred by the entire controversy doctrine, whether defendants can be held liable for tortious interference with an economic advantage, whether harassment is a cognizable cause of action under New Jersey civil law, whether plaintiffs' claims for intentional and negligent infliction of emotional distress must fail as a matter of law, whether facts pled by plaintiffs relating to an alleged break-in to plaintiffs' car should be stricken because defendants owed no duty to the plaintiffs, and whether facts pled by plaintiffs relating to an HVAC malfunction in February 2007, a burglary in February 2007, and a flood occurring in July 2007 should be stricken because defendants were not liable for damages arising from these events pursuant to the parties' lease agreement.

In a letter opinion dated January 9, 2008, Judge Wertheimer concluded that defendants' summary judgment motion as to counts one through four of the amended complaint was moot in that Judge Chrystal had already dismissed those counts. The judge granted defendants' motion as to plaintiff's intentional and negligent infliction of emotional distress claims and dismissed those counts of plaintiff's amended complaint. The court denied defendants' motion to strike the remaining counts of plaintiff's Union County complaint. On March 28, 2008, Judge Chrystal, in the Union County action, granted defendants' motion for summary judgment as to count six of plaintiff's complaint, harassment.

Plaintiff subsequently moved before Judge Wertheimer for reconsideration of his January 9, 2008 opinion and order. In a letter opinion dated May 27, 2008, and reflected in an order dated June 10, 2008, Judge Wertheimer denied plaintiff's motion for reconsideration. By order dated November 7, 2008, Judge Wertheimer dismissed all remaining counts of plaintiff's amended complaint with prejudice for failure to make discovery.

Plaintiff has not appealed from the September 20, 2007 order dismissing counts one, two, three and four of its complaint; nor has plaintiff appealed from the court's November 7, 2008 order dismissing the remaining counts of the complaint with prejudice. On appeal, plaintiff only challenges Judge Wertheimer's January 9, 2008, and June 10, 2008, orders, raising the following three points for our consideration:

POINT I

JUDGE WERTHEIMER INCORRECTLY RULED THAT COUNTS ONE THOUGH COUNT FOUR OF PLAINTIFFS' AMENDED COMPLAINT HAD BEEN PREVIOUSLY DISMISSED BY JUDGE CHRYSTAL BY ORDER DATED SEPTEMBER 20, 2007

POINT II

JUDGE WERTHEIMER ERRED IN DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF ITS LETTER OPINION AND ORDER OF JANUARY 9, 2008 WHICH DENIED DEFENDANTS' MOTION AS MOOT

POINT III

THE ENTIRE CONTROVERSY DOCTRINE DOES NOT PRECLUDE CLAIMS THAT ARE UNKNOWN, UNARISEN, OR UNACCRUED AT THE TIME OF THE ORIGINAL ACTION

Having reviewed these arguments in light of the record and prevailing law, we affirm substantially for the reasons expressed by Judge Wertheimer in his January 9 and May 27, 2008 written opinions. Plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).

 
Affirmed.

The lease has not been included in the appendix on appeal.

In the Union County complaint, Irvington Pediatric Associates was included as an additional named plaintiff. We surmise from the complaint that Irvington Pediatric Associates was the name of plaintiff Dr. Lauredan's medical practice. All references to plaintiff in this opinion are to Dr. Lauredan.

Plaintiff has represented that the court entered an order of January 9, 2008, memorializing its opinion of that date, but has not provided a copy of the order to this court.

Neither the order reflecting that decision, nor a transcript of the decision, if one is extant, has been provided to this court.

Plaintiff has not included the June 10, 2008 order in the appendix.

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A-1535-08T3

July 14, 2009