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Charles v. Marino

A-3896-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

WARRANTIES — To prove the existence of a defect in a purchased property and that the defect resulted in damage, the complaining party must present expert testimony to the court.

Four and one-half months after closing, a plumbing system clog caused a back-up and flood in the buyer’s house. The buyer’s damage was covered by insurance, but the buyer elected to upgrade the plumbing system. It then sued its seller for the costs of the upgrade, contending that the plumbing work was necessary due to the defective plumbing. It alleged breach of warranty, fraud, and violation of the Consumer Fraud Act. The seller moved for summary judgment, claiming that the buyer had no expert witness and produced no expert report to establish a defective plumbing condition in the house. The buyer argued that his plumber had told him that the plumbing was defective. The buyer also claimed that the plumbing problems were the result of the seller having performed plumbing work at the house without permits.

The lower court granted the seller’s motion for summary judgment and dismissed the buyer’s complaint. The lower court found that the absence of an expert witness was fatal to the buyers’ case because, without an expert witness, a jury could not determine whether the plumbing was defective and, if defective, if it caused the sewer back-up and resulting flood.

The buyer appealed, arguing that the lower court mistakenly focused on the cause of the flood rather than the defective plumbing installed by the seller prior to the flood. He also argued that the lower court improperly interpreted his allegations of a “defective condition” as a design defect instead of the installation of plumbing that did not comply with the plumbing code. To the buyer’s dismay, the Appellate Division affirmed for the reasons given by the lower court. The Court found that the buyer needed expert testimony to prove both the existence of a plumbing defect and that the defect was the cause of the flooding and sewer backup.


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