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Daidone v. Buterick Bulkheading, Inc.

A-5652-04T1 (N.J. Super. App. Div. 2006) (Unpublished)

CONSTRUCTION; STATUTE OF REPOSE—New Jersey’s construction claim ten year Statute of Repose begins to run when a professional completes its work, not when the certificate of occupancy is issued, if later.

Homeowners, a husband and wife, hired an architect to design a house. The plans were certified and approved by the governing municipality. Subsequently, the homeowners hired a contractor to install pilings for the house’s slab foundation. The work, upon completion, was certified as being in accordance with the architect’s specifications. Both the architect and contractor completed their limited work more than one year before a certificate of occupancy (C of O) was issued for the house.

The husband-homeowner served as the general contractor for the house. Five years after the completion of the house, the homeowners discovered safety issues related to the frame of the house settling on the slab foundation, notably causing the gas, water, sewer, and heating pipes to bend to the point of possible cracking, and stress upon the electrical panel such that the electrical wiring could snap. The husband retained an engineer almost two years after these problems were noticed, and the engineer urged corrective action to avoid further damage. In response, the homeowners undertook repairs at a cost of $90,000, and filed a complaint against the architect and contractor for damages approximately two years after these repairs were completed.

The complaint was filed more than ten years after the date that the contractor’s work had been completed. Both the architect and contractor, apart from their limited and completed duties, had no participation in the construction of the home. After discovery was completed, the architect and contractor both moved for summary judgment, arguing that they had completed their work more than ten years prior to the filing of the complaint, and so the claims should be dismissed under the Statute of Repose, a New Jersey statute that limits liability for damages stemming from unsafe conditions of improvement to real property to within ten years after the performance or furnishing of such services or construction. The lower court granted their motions.

On appeal, the homeowners urged the Appellate Division to find that the architect and homeowner had to prove, as an affirmative defense, that this statute applied to them because of any defect in the house that created an unsafe condition and that they did not meet this burden. The Appellate Division, while agreeing that this affirmative defense evidentiary burden existed, still found, as a matter of law, that the alleged defects in the work presented a defective or unsafe condition based primarily on the deposition testimony of the husband-homeowner’s deposition testimony in which he stated that the condition of the home created safety issues. The Court found, given the facts at hand, that this conclusion did not necessarily require any expert testimony or independent testimony from the architect or contractor to meet a required evidentiary burden.

The homeowners also urged the Appellate Division to find that the lower court incorrectly held that the Statute of Repose ran from a date other than the date in which the C of O was issued. (the date of the complaint was filed within ten years of the issuance of the C of O). The Court disagreed, and found that the ten year Statute of Repose commenced earlier than the date of the C of O because the architect and contractor’s specific and limited work assignments were completed more than one year before the C of O was issued; neither professional participated in the ongoing construction of the project up to the time that the C of O was issued. Furthermore, the homeowners failed to file a timely complaint when they had notice of injury years after the C of O of occupancy was issued. In conclusion, the Court found that the homeowner’s complaint was filed out of time under the Statute of Repose and affirmed the lower court’s grant of summary judgment in favor of the architect and the contractor.


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