Makai v. Winston Towers 200 Ass'n
| Decision Date | 09 December 2020 |
| Docket Number | DOCKET NO. A-2742-18T1 |
| Parties | STEVEN MAKAI and BECKY CHACKO, Plaintiffs-Appellants, v. WINSTON TOWERS 200 ASSOCIATION, INC., RCP MANAGEMENT COMPANY, BHB INSURANCE SERVICES, and BARBARA LOMBARDI, Defendants-Respondents, and RAMESH MEHTA, J&Y CONSTRUCTION COMPANY, JACQUELINE CORDOVA and/or JULIAN CORDOVA, partners and owners, and JULIAN CORDOVA, Individually, and GREENWAY PLUMBING AND HEATING CORP., Defendants, and WINSTON TOWERS 200 ASSOCIATION INC., Defendant/Third-Party Plaintiff-Respondent, v. BHB INSURANCE SERVICES and BARBARA LOMBARDI, Defendants/Third-Party Defendants-Respondents, and RAMESH MEHTA, Third-Party Plaintiff, v. J&Y CONSTRUCTION COMPANY, JACQUELINE CORDOVA and/or JULIAN CORDOVA, partners and owners and JULIAN CORDOVA Individually, Third-Party Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Sabatino, Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0275-16.
Daniel Lebersfeld argued the cause for appellants (Franzblau Dratch, PC, attorneys; Brian M. Dratch, of counsel and on the briefs).
Michael T. Caufield argued the cause for respondents Winston Towers 200 Association, Inc. (Schepisi & McLaughlin, PA, attorneys; Michael T. Caulfield, on the brief).
Timothy E. Burke argued the cause for respondents RCP Management Company (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Timothy E. Burke, of counsel and on the brief).
Robert E. Campbell argued the cause for respondents BHB Insurance Services and Barbara Lombardi (White and Williams LLP, attorneys; Robert E. Campbell and Christopher P. Leise, on the brief).
This case concerns water leaks in a residential unit within a high-rise condominium building in Cliffside Park known as Winston Towers 200. The thirty-one-story building, one of two towers, was constructed in 1973 on the grounds of the former Palisades Amusement Park.
The complex is overseen by a condominium association, Winston Towers 200 Association, Inc. ("the association"). The association engages a separate firm, RCP Management Company ("RCP"), to manage the premises.
Plaintiffs Steven Makai and Becky Chacko bought Unit 1720 within Winston Towers in 2013. After they moved in, plaintiffs started to renovate their master bathroom. Their bathroom contractor noticed mold behind the walls, so plaintiffs retained a mold remediation expert, Charles Schwartz. Schwartz substantially traced the mold to water emanating from Unit 1820 directly above plaintiffs' unit. That upstairs unit is owned by Ramesh Mehta, who had been renovating his own bathroom.
Mehta's contractor, J&Y Construction Company, attempted to repair the leaks, but mold spots returned in Unit 1720. Concerned about the mold spots for health reasons, Makai temporarily vacated the premises until the mold and water problem was finally abated. Makai claims he lost income because he was not able to work from home during the time the mold persisted.
Plaintiffs sued Mehta, J&Y, the condominium association, its management company RCP, and various other parties for negligence in failing to act reasonably to prevent the mold and water infiltration. The association named its insurance broker, BHB Insurance Services and claims manager Barbara Lombardi, as third-party defendants for failing to procure mold coverage.1 Extensive discovery overseen by the Law Division ensued.
Eventually plaintiffs settled with Mehta and J&Y for an undisclosed sum. They are now pursuing the association and RCP for additional damages.
Plaintiffs argue the association had a duty to warn them about latent mold and water leakage behind the walls. They contend such a duty is consistent with this court's opinion in Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005) ().
To support their causation argument that the water infiltrated their unit from common areas within the association's purview, plaintiffs rely upon the report of their expert, Schwartz. In that regard, they note Schwartz's hypothesis that the leaks may be attributed, at least in part, to long-standing "historical" water problems within the tower. Plaintiffs also attempt to rely upon expert opinions of Robert Strode, an industrial hygienist who had originally been retained by Mehta. In his expert report prepared for Mehta before the settlement, Strode opined the water leaks in Unit 1720 predominantly did not come from Mehta's unit above.
The trial court granted the association and RCP summary judgment. Among other things, the court found plaintiffs lacked what it deemed to be a necessary expert on building management practices. The court also found plaintiffs had no expert showing, with an appropriate evidential foundation, that the cause of the leaks to Unit 1720 stemmed from any common areas in the building.
Although it did not need to reach damages issues, the court dismissed plaintiffs' claims for lost income and bodily injury damages. It imposed those sanctions upon plaintiffs for failure to cooperate in discovery in scheduling a physician's deposition and obtaining requested tax records.
Plaintiffs now appeal, mainly arguing that the trial court erred in concluding their claims against the association and RCP lack sufficient expert support. They further argue the court misapplied its discretion in imposing severe discovery sanctions against them on the damages issues.
For the reasons to follow, we affirm the summary judgment order. Although we disagree with certain aspects of the trial court's analysis, we likewise conclude plaintiffs have not marshalled sufficient expert support to establish the leaks to their unit originated in common areas. Consequently, plaintiffs have no viable claims against the association and RCP. Because of that failure to establish liability, we need not grant any relief as to the damages-related discovery sanctions.
Familiar principles guide our analysis of the trial court's summary judgment order. Summary judgment "must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). The court must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). We review de novo the grant or denial of a motion for summary judgment. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016).
To perform our review, we first consider the legal framework for plaintiff's claims against the association and its management firm, RCP.
A condominium association is composed of unit owners, N.J.S.A. 46:8B-9, -12, -12.1, and "is responsible for the administration and management of the condominium." Siddons, 382 N.J. Super. at 6 (App. Div. 2005) (citing N.J.S.A.46:8B-8, -12). An association's operations are informed by the Condominium Act, N.J.S.A. 46:8B-1 to -38, as well as the contents of the master deed and the condominium by-laws. Siddons, 382 N.J. Super. at 6 (citing N.J.S.A. 46:8B-13, -14, -15).
By statute, a condominium association is responsible for the "maintenance, repair or replacement of any common elements therein or accessible therefrom or for making emergency repairs necessary to prevent damage to common elements or to any other unit or units." N.J.S.A. 46:8B-15(b) (emphasis added). A unit owner nevertheless remains liable "for injuries or damages resulting from an accident in his own unit in the same manner and the same extent as the owner of any other real estate." N.J.S.A. 46:8B-16(c) (emphasis added).
Here, the By-Laws and Master Deed for Winston Towers 200 reiterate this important distinction between common areas and private unit areas. The overall administration, management, maintenance, repair, and operation of the Winston Towers 200 building is governed by the By-Laws of the association. Section 3 of the By-Laws, which governs damage to the property, provides:
The property rights of the association and the owner of each residential unit within Winston Towers 200 are further governed by the Master Deed. The Master Deed defines the term "Apartment Unit" as follows:
The Master Deed defines "Common Elements" as follows:
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