Carlyle Towers Condominium Association, Inc. v. Crossland Savings

• Decision Date: 12 March 1999
• Docket Number: Civ. No. 95-6554 (DRD).
• Court: U.S. District Court — District of New Jersey
• Parties: CARLYLE TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. CROSSLAND SAVINGS, FSB, FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for CrossLand Savings, FSB, REPUBLIC NATIONAL BANK, formerly known as CROSSLAND FEDERAL SAVINGS BANK, CLIFFSIDE PARK ASSOCIATES, CARLYLE ASSOCIATES OF CLIFFSIDE PARK, LP, CROSS CLIFF CORP., CARLYLE DEVELOPMENT CORP., ANCHORAGE WOODS CONSTRUCTION CO., PHILIP BIRNBAUM & ASSOCIATES, ANDREW MARSHALL, JR., ROBERT ROSENWASSER & ASSOCIATES, ROSENWASSER/GROSSMAN CONSULTING ENGINEERS, ROBERT ROSENWASSER, BOSWELL ENGINEERING CORP., BROWNWORTH, MOSHER & DORAN ENGINEERING ASSOCIATES, P.C., BROWNWORTH ENGINEERING ASSOCIATES, MOSHER & DORAN, JACK BROWNWORTH, P.E., FREDERICK K. MOSHER, ARTHUR L. DORAN, P.E., BEN ACOCELLA LANDSCAPING, INC. BUILDING ENCLOSURES ANALYSIS, INC., CORPORATE GLASS & ALUMINUM CO., COSTAS KONDYLIS & ASSOCIATES, P.C., formerly known as C.K. ARCHITECT, P.C., CONSTANTINE ANDREW KONDYLIS, a/k/a COSTAS KONDYLIS, CHRISTIANO FENCE CO., G.M. CROCETTI, INC., DAURIO & RUSSO & SONS CONSTRUCTION CO., INC., G.T. WINDOWS, INC., HI-TECH ARCHITECTURAL PRODUCTS, INC., J. FLETCHER CREAMER & SON, INC., MANNER ASSOCIATES, INC., MIDLAND METALCRAFT CO., MOUNTAIN WATERPROOFING CO., NORTH STAR FIRE PROTECTION, INC., POWER ELECTRIC CO., INC., SEAPORT CONSTRUCTION CO., SKYLIGHT MANUFACTURING, INC., TESTWELL CRAIG BERGER, INC., THE SINACOLA COMPANIES, INC., TRIPOD CONSTRUCTION CO., INC. TRISTATE SOL-AIRE SERVICE CO., WILKINSON & COMPANY, INC., WILLIAM ZABRASKY, JR., INC., HOWARD INDUSTRIES, INC., CAROL MANN, JOHN BRINSTER, LAWRENCE D. TRUPPO, GEORGE KONDOS, JAMES D. DEMETRAKIS, WALLACE R. MADISON, DAVID F. BENGEL, MAUREEN BAUER, DONALD O. STEIN, WILLIAM ACHENBAUM, MARC CHERNIN, OLIVER MCCARTNEY & HOLMES, HAMPSHIRE MANAGEMENT CO., WILLIAM R. STEIN, SNYDER GENERAL CORP., STEPHEN P. SINSI, DAVID CARMEL, CARMEL, DOWD, & FREDERICKSON, LESLIE A. DAUB, JOHN D. FREDERICKSON, E&G CONSTRUCTION SERVICES, VICTOR GOLDSMITH, GEM ROOFING AND WATERPROOFING, and JOHN DOES A-I, Defendants.

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CARLYLE TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. CROSSLAND SAVINGS, FSB, FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for CrossLand Savings, FSB, REPUBLIC NATIONAL BANK, formerly known as CROSSLAND FEDERAL SAVINGS BANK, CLIFFSIDE PARK ASSOCIATES, CARLYLE ASSOCIATES OF CLIFFSIDE PARK, LP, CROSS CLIFF CORP., CARLYLE DEVELOPMENT CORP., ANCHORAGE WOODS CONSTRUCTION CO., PHILIP BIRNBAUM & ASSOCIATES, ANDREW MARSHALL, JR., ROBERT ROSENWASSER & ASSOCIATES, ROSENWASSER/GROSSMAN CONSULTING ENGINEERS, ROBERT ROSENWASSER, BOSWELL ENGINEERING CORP., BROWNWORTH, MOSHER & DORAN ENGINEERING ASSOCIATES, P.C., BROWNWORTH ENGINEERING ASSOCIATES, MOSHER & DORAN, JACK BROWNWORTH, P.E., FREDERICK K. MOSHER, ARTHUR L. DORAN, P.E., BEN ACOCELLA LANDSCAPING, INC. BUILDING ENCLOSURES ANALYSIS, INC., CORPORATE GLASS & ALUMINUM CO., COSTAS KONDYLIS & ASSOCIATES, P.C., formerly known as C.K. ARCHITECT, P.C., CONSTANTINE ANDREW KONDYLIS, a/k/a COSTAS KONDYLIS, CHRISTIANO FENCE CO., G.M. CROCETTI, INC., DAURIO & RUSSO & SONS CONSTRUCTION CO., INC., G.T. WINDOWS, INC., HI-TECH ARCHITECTURAL PRODUCTS, INC., J. FLETCHER CREAMER & SON, INC., MANNER ASSOCIATES, INC., MIDLAND METALCRAFT CO., MOUNTAIN WATERPROOFING CO., NORTH STAR FIRE PROTECTION, INC., POWER ELECTRIC CO., INC., SEAPORT CONSTRUCTION CO., SKYLIGHT MANUFACTURING, INC., TESTWELL CRAIG BERGER, INC., THE SINACOLA COMPANIES, INC., TRIPOD CONSTRUCTION CO., INC. TRISTATE SOL-AIRE SERVICE CO., WILKINSON & COMPANY, INC., WILLIAM ZABRASKY, JR., INC., HOWARD INDUSTRIES, INC., CAROL MANN, JOHN BRINSTER, LAWRENCE D. TRUPPO, GEORGE KONDOS, JAMES D. DEMETRAKIS, WALLACE R. MADISON, DAVID F. BENGEL, MAUREEN BAUER, DONALD O. STEIN, WILLIAM ACHENBAUM, MARC CHERNIN, OLIVER MCCARTNEY & HOLMES, HAMPSHIRE MANAGEMENT CO., WILLIAM R. STEIN, SNYDER GENERAL CORP., STEPHEN P. SINSI, DAVID CARMEL, CARMEL, DOWD, & FREDERICKSON, LESLIE A. DAUB, JOHN D. FREDERICKSON, E&G CONSTRUCTION SERVICES, VICTOR GOLDSMITH, GEM ROOFING AND WATERPROOFING, and JOHN DOES A-I, Defendants.

Civ. No. 95-6554 (DRD).

United States District Court, D. New Jersey.

Dennis Estis, Esq., Greenbaum, Rowe, Smith, Ravin & Davis, P.C., Iselin, NJ, Attorneys for Plaintiff.

Gerald A. Liloia, Esq., Julian Wells, Esq., Riker, Danzig, Scherer, Hyland & Perretti, LLP Morristown, NJ, Attorneys for Defendants CrossLand Savings, FSB, Carol Mann, John Brinster, Lawrence D. Truppo, George Kondos, Maureen Bauer, and Marc Chernin

Daniel P. Simpson, Esq., Newman & Simpson, Hackensack, NJ, Attorneys for Cliffside Park Associates, Carlyle Associates of Cliffside Park, L.P., Cross Cliff Corp., Carlyle Development Corp., Anchorage Woods Construction, David F. Bengel, Donald O. Stein, William Achenbaum, William R. Stein, and Frederick Oliver

Stephen L. Petrillo, Esq., Connell, Foley & Geiser LLP, Roseland, NJ, Attorneys for Defendants E/G Construction Services, Ltd. and Victor Goldsmith

William J. Mergner, Jr., Esq., Leary, Bride, Tinker & Moran, P.C. Cedar Knolls, NJ, Attorneys for Defendant GT Windows, Inc.

Edward J. Buzak, Esq., Montville Office Park, Montville, NJ, Attorney for Intervenor-Defendant Building Enclosures Analysis, now known as Panelization Systems International, Inc.

Kenneth A. Bloom, Esq., Andrew M. Moskowitz, Esq. Gartner, Bloom & Greiper, P.C., Hoboken, NJ, Attorneys for Defendants GEM Roofing & Waterproofing Corp.

Pamela B. Betlow, Esq., James F. Fitzsimmons, Esq. Budd, Larner, Gross, Rosenbaum, Geenberg & Sade, P.C., Short Hills, NJ, and Christopher P. Morrison, Esq., Smith, Stratton, Wise, Heher & Brennan Princeton, NJ, Attorneys for Howard Industries, Inc.

Mark Seiden, Esq., Milber Makris Plousadis & Seiden, LLP, West Paterson, NJ, Attorneys for Defendants Costas Kondylis & Associates, P.C. and Constantine Andrew Kondylis.

OPINION

DICKINSON R. DEBEVOISE, U.S.S.D.J.

Plaintiff, Carlyle Towers Condominium Association, Inc. (the "Association"), moves for partial summary judgment pursuant to Fed.R.Civ.P. 56 against defendant Republic National Bank of New York, formerly known as CrossLand Federal Savings Bank ("New CrossLand"), and seeks an order holding New CrossLand liable under the New Jersey Consumer Fraud Act and the Planned Real Estate Development Full Disclosure Act as well as holding it liable, as a matter of law, for breach of contract, breach of express and implied warranties, negligence, and misrepresentation. New CrossLand has cross-moved for partial summary judgment against the Association seeking dismissal of all claims in the Association's Second Amended Complaint dealing with windows. New CrossLand has also filed a motion for summary judgment against defendants Carlyle Associates of Cliffside Park, L.P. ("CACP"), and Carlyle Development Corp. ("CDC") on CACP's and CDC's cross-claims for contractual indemnification. Additionally, New CrossLand has filed a motion for summary judgment against defendants Brownsworth, Mosher & Doran Engineering Associates, P.C., Building Enclosures Analysis, Inc., Costas Kondylis & Associates, P.C., Gem Roofing & Waterproofing, Inc., GT Windows Installation Corp., Mosher & Doran, Mountain Waterproofing Co., Robert Rosenwasser & Associates, Tripod Construction Co., Inc., Tri-State Sol Aire Service Co., Wilkinson & Co., Inc., and Wilkstone Contractors, Inc. (collectively, the "Subcontractor Defendants"), on their cross-claims for common-law and/or contractual indemnification. Additionally, defendant GT Windows Installation Corp., E&G Construction Services, Ltd., and Kondylis & Associates, P.C., have filed separate motions for summary judgment against the Association seeking dismissal of all claims in the Association's Second Amended Complaint dealing with windows. Finally, Defendants Donald O. Stein and William Achenbaum have filed a motion for summary judgment against New CrossLand on its cross-claim for recovery under the Completion Guaranty.

For the reasons set forth below, the Association's motion for partial summary judgment against New CrossLand will be denied. Additionally, New CrossLand's, GT Widows Installation Corp.'s, E&G Construction Services, Ltd.'s, and Costas Kondylis & Associates, P.C.'s, motions for partial summary judgment against the Association on the windows claims will be granted and that portion of the complaint will be dismissed with prejudice. Furthermore, New CrossLand's motion to dismiss CACP and CDC's cross-claims for indemnification will be granted and those cross-claims will be dismissed. Moreover, New CrossLand's motion for summary judgment against the Subcontractor Defendants will be granted and their cross-claims for common law and/or contractual indemnification will be dismissed. Finally, Stein and Achenbaum's motion for partial summary judgment will be denied.

I. BACKGROUND

A. Factual History

This matter arises from the construction and sale of condominium units at the Carlyle Towers Condominium (the "Condominium"), a high-rise condominium development located on the Palisades in Cliffside Park, New Jersey.¹ From the beginning of its occupancy in 1990 the Condominium has suffered from various defects that will allegedly cost over $ 15 million to repair.

The Condominium consists of residential dwelling units located in two towers (North and South) and a lobby or atrium structure connecting the two towers and containing fourteen townhouse-type units, for a total of 370 residential units. The Condominium also consists of a two level parking structure located below the lobby. The complex is situated on four acres of land and has a guest parking lot located on an adjacent piece of property.

The initial sponsor/developer of the Condominium was Cliffside Park Associates ("CPA"), a joint venture formed by CACP, a New Jersey limited partnership, and Cross Cliff pursuant to a joint venture agreement dated November 25, 1987. See Court's Appendix. Between 1987 and 1989, Old CrossLand loaned CPA approximately $102,000,000 to finance the construction of the Condominium. Additionally, during the period of time in which CPA was the sponsor/developer, all of the design drawings and specifications were prepared, the architects, general contractors, and subcontractors were hired, the necessary approvals and permits were obtained, and a large majority of the construction was completed.

CACP was the managing partner of CPA pursuant to the joint venture agreement. Id. The general partner of CACP was CDC. Id. Defendants Achenbaum and Donald Stein were officers and shareholders of CDC and principals of Anchorage Woods Construction Corp. ("Anchorage Woods"), the Condominium's general contractor. Id.

Cross Cliff was a wholly owned subsidiary of Old CrossLand. Id. Defendants Mann, Brinster, and Truppo were officers and/or directors of Cross Cliff, Old CrossLand, and New CrossLand. Id. Kondos was a director of Cross Cliff and an officer of New CrossLand. Id. Kondos and Mann did not become officers and/or directors of Cross Cliff until September 1, 1992.

The joint venture agreement empowered Cross Cliff and CACP to "acquire, sell, mortgage and lease the subject property, borrow and lend money, employ individuals/entities to manage and operate the Condominium, employ professionals, etc." Achenbaum and Donald Stein signed the joint venture agreement and agreed to devote substantial time and attention to the business of the joint venture. From August 1990 when CPA sold its first unit until April 24, 1991, the Condominium was controlled by CPA and its Board member appointees. Among the CPA Board member appointees were Achenbaum and Donald Stein who served as trustees and officers of the Association from June 24, 1990, to July 31, 1991.

In accordance with its obligations under the Building Loan Agreement with Old CrossLand, CPA retained Anchorage Woods as the general contractor for the Condominium. Anchorage Woods, in turn, entered into subcontract agreements with various subcontractors to complete the Condominium. Defendant Brownsworth, Mosher &...