Marchak v. Claridge Commons, Inc.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPOLLOCK
Citation134 N.J. 275,633 A.2d 531
Decision Date08 December 1993
PartiesRonald MARCHAK, Plaintiff-Respondent, v. CLARIDGE COMMONS, INC., Ronald Racioppi, Frank Racioppi, and Zygmunt Wilf, Defendants-Appellants, and Salvatore Mauro, Defendant.

Page 275

134 N.J. 275
633 A.2d 531
Ronald MARCHAK, Plaintiff-Respondent,
v.
CLARIDGE COMMONS, INC., Ronald Racioppi, Frank Racioppi, and
Zygmunt Wilf, Defendants-Appellants,
and
Salvatore Mauro, Defendant.
Supreme Court of New Jersey.
Argued Oct. 13, 1993.
Decided Dec. 8, 1993.

Marc J. Friedman, Parsippany, for defendants-appellants (Rich & Friedman, attorneys).

Murray A. Klayman, Springfield, for plaintiff-respondent (Ferdinand and Klayman, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

At issue is an arbitration clause in a contract for the purchase of a new home. The initial question is whether the arbitration clause comports with The New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20 (the Act). If so, does it bar the purchaser, Ronald Marchak, from suing the builder, Claridge

Page 277

Commons, Inc. (Claridge), for construction defects? In an unreported opinion, the Law Division granted summary judgment for defendants Claridge and its principals, Ronald Racioppi, Frank Racioppi, and Zygmunt Wilf. The court also granted summary judgment for the municipal building inspector, Salvatore Mauro, and he no longer is in the case. The Appellate Division reversed and remanded for trial. 261 N.J.Super. 126, 132, 617 A.2d 1256, 1259 (1992). We granted the builder's petition for certification, 133 N.J. 440, 627 A.2d 1145 (1993), and now affirm.

-I-

Plaintiff, Marchak, contracted with Claridge to purchase a new single-family home in a subdivision in Union, New Jersey. The contract provided:

Seller shall provide buyer with insurance-backed warranty coverage and protection under New Jersey's Homeowners Warranty Act.

* * * * * *

Buyer and seller acknowledge and agree that the warranty and insurance remedies contained in the homeowners warranty provided by seller to buyer constitute the [633 A.2d 533] exclusive remedies of the buyer. The parties agree that the conciliation and arbitration procedures as outlined in the Homeowner's Warranty Act, are better suited to the determination of outstanding issues, if any, between the parties than any remedy which may be sucured [sic] by resort to legal process. Buyer represents that he has read the act to which reference is made and that he has secured the advice of counsel in making this election of remedies. This election of remedies, it is agreed, shall survive closing of title.

At the closing on July 13, 1987, Claridge delivered to Marchak a "Home Buyers Warranty," which provided in paragraph IV, Conciliation and Arbitration:

If the Builder and the Homeowner do not reach agreement with respect to the extent of, or the responsibility for, any alleged defects claimed in accordance with the warranty documents and the Construction Quality Standards, or if the Homeowner is not satisfied with any repair of defects made by the Builder, either the Builder or the Homeowner may request an impartial third party arbitration with the A.A.A., which will be conducted in accordance with its rules and regulations. The Homeowner can demand arbitration by completing a Request for Arbitration form which shall be provided by the Service. In accordance with the Act and the Regulations, the Homeowner has the right to pursue remedies other than conciliation and arbitration; however, election of other remedies shall bar the Homeowner

Page 278

from pursuing the same claim under this warranty. Non-Magnuson-Moss rights and remedies pertaining to consumer products may be pursued without first resorting to the conciliation and arbitration process.

The "Home Buyers Warranty" included, among other warranties, a one-year warranty that the "housing unit" would be free from "[d]efects in materials or workmanship as established in the Constructive Standards," a two-year warranty covering "defects in the electrical, plumbing and mechanical systems," and a ten-year warranty on "major construction defects." The warranties were consistent with the requirements of the Act, which provides:

b. The time periods of warranties established pursuant to this act are as follows: (1) One year from and after the warranty date the dwelling shall be free from defects caused by faulty workmanship and defective materials due to noncompliance with the building standards as approved by the commissioner pursuant to [ N.J.S.A. 46:3B-3a].

(2) Two years from and after the warranty date the dwelling shall be free from defects caused by faulty installation of plumbing, electrical, heating and cooling delivery systems; however, in the case of appliances, no warranty shall exceed the length and scope of the warranty offered by the manufacturer.

(3) Ten years from and after the warranty date for major construction defects as defined in this act.

[ N.J.S.A. 46:3B-3b(1)

to -3b(3).]

Both before and after the closing, Marchak submitted to Claridge "punch lists" for problems of varying importance. According to a September 6, 1991, report obtained by Marchak from consulting engineer Norman J. Coons, the house failed to meet the "Performance Standards" of N.J.A.C. 5C:25-3.5 to

-3.6 and suffered from numerous defects. The defects ranged from structural failures, including the substitution of a wood support for a concrete-filled steel lolly column in the basement, to the omission of windows, insulation, and electrical outlets. The report concluded that Claridge had shown "blatant disregard for the safety and integrity of the building and its occupants."

According to Marchak, Claridge failed to correct the problems. Consequently, he filed the complaint on April 11, 1990, after the expiration of the two-year warranty period. Ultimately he alleged counts in negligence and fraud, as well as violations of the New

Page 279

Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -60. Because of the expiration of the warranty period, he did not assert claims for breach of warranty.

The Law Division granted Claridge's motion for summary judgment, finding that the [633 A.2d...

To continue reading

Request your trial
73 practice notes
  • Fields v. Thompson Printing Co., Inc., No. 02-2763.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 31 Marzo 2004
    ...as they are made by the parties and not to create additional terms out of thin air. See, e.g., Marchak v. Claridge Commons, Inc., 134 N.J. 275, 633 A.2d 531 (1993). However, "[i]mplied covenants are as effective components of an agreement as those covenants that are express," and "a party's......
  • Singer v. Commodities Corp. (U.S.A.)
    • United States
    • Superior Court of New Jersey
    • 23 Julio 1996
    ...Stigliano v. Saint Rose High Sch., 198 N.J.Super. 520, 529, 487 A.2d 1260 (App.Div.1984); see also Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993); Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 489, 610 A.2d 364 (1992); Faherty v. Faherty, 97 N.J. ......
  • Delta Funding Corp. v. Harris, No. CIV.A. 02-4080JCL.
    • United States
    • U.S. District Court — District of New Jersey
    • 1 Marzo 2004
    ...(noting favored status accorded to arbitration, but stating that favored status is not without limits); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993) (stating that "arbitration is a favored form of relief" and that "arbitrators function with the support, encourag......
  • Kernahan v. Home Warranty Adm'r of Fla., Inc., A-15 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • 10 Enero 2019
    ...Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Ed., 78 N.J. 122, 140, 393 A.2d 267 (1978) ) ); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282, 633 A.2d 531 (1993) ("A clause depriving a citizen of access to the courts should clearly state its purpose. The point is to assure that......
  • Request a trial to view additional results
73 cases
  • Fields v. Thompson Printing Co., Inc., No. 02-2763.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 31 Marzo 2004
    ...as they are made by the parties and not to create additional terms out of thin air. See, e.g., Marchak v. Claridge Commons, Inc., 134 N.J. 275, 633 A.2d 531 (1993). However, "[i]mplied covenants are as effective components of an agreement as those covenants that are express," and "a party's......
  • Singer v. Commodities Corp. (U.S.A.)
    • United States
    • Superior Court of New Jersey
    • 23 Julio 1996
    ...Stigliano v. Saint Rose High Sch., 198 N.J.Super. 520, 529, 487 A.2d 1260 (App.Div.1984); see also Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993); Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 489, 610 A.2d 364 (1992); Faherty v. Faherty, 97 N.J. ......
  • Delta Funding Corp. v. Harris, No. CIV.A. 02-4080JCL.
    • United States
    • U.S. District Court — District of New Jersey
    • 1 Marzo 2004
    ...(noting favored status accorded to arbitration, but stating that favored status is not without limits); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993) (stating that "arbitration is a favored form of relief" and that "arbitrators function with the support, encourag......
  • Kernahan v. Home Warranty Adm'r of Fla., Inc., A-15 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • 10 Enero 2019
    ...Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Ed., 78 N.J. 122, 140, 393 A.2d 267 (1978) ) ); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282, 633 A.2d 531 (1993) ("A clause depriving a citizen of access to the courts should clearly state its purpose. The point is to assure that......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT