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Stix v. Greenway Development Co.

Decided: April 7, 1982.

THOMAS L. STIX, JR., AND DOROTHY K. STIX, PLAINTIFFS-APPELLANTS,
v.
GREENWAY DEVELOPMENT CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Milmed, P.J.A.D.

Milmed

Plaintiffs appeal from an order of the Law Division granting summary judgment in favor of defendant and dismissing plaintiffs' complaint, with prejudice.

The complaint, which was filed October 28, 1980, is in two counts. Both counts are grounded on alleged breach of contract and negligence by defendant in its construction for plaintiffs, prior to January 11, 1963, of a dwelling house in Norwood. In the first count plaintiffs seek damages from defendant allegedly flowing from "the poor, defective and improper workmanship and the negligence of the defendant in constructing the dwelling house," resulting in the "buckling and collapse" of the basement foundation wall on April 10, 1980, "causing water, mud and other debris to enter into the basement of the said premises and undermining the entire structure which was then being used by the plaintiffs as their dwelling." Plaintiffs assert that at the time they bought the property from defendant "on or about" January 11, 1963, "they relied upon the representations of defendant, its agents, servants and/or employees to the effect that the construction of the dwelling had been properly completed and done in a good and workmanlike manner as was required by" the contract between the parties. In the second count of the complaint plaintiffs seek damages for their "great emotional upset," the disruption of their home life, and the "great anguish and distress" which they were caused, resulting from "the negligence and improper workmanship of the defendant and the occurrence of April 10, 1980."

In its answer to the complaint defendant denied the allegations regarding negligence and the manner in which it had

constructed the building and, among its separate defenses, asserted that "[t]he plaintiffs are barred from recovery by reason of the statute of limitations, N.J.S.A. 2A:14-1.1." It then moved for summary judgment dismissing the complaint with prejudice and with costs. In his certification filed in opposition to the motion, plaintiff Thomas L. Stix, Jr. stated, among other things, that "between the execution of the contract and the closing of title on or about January 11, 1963, while the house was under construction," he and his wife

He further asserted that he and his wife relied upon defendant's representation and assurance; that after the collapse of the wall in April 1980 they "ascertained that the . . . statements and representations made to [them] were false and fraudulent" and "believe" that they "were made for the purpose of lulling [them] into a false sense of security"; and that "as a result of the fraud of defendant, [it] should not be able to avail itself, at this time, of the provisions of N.J.S.A. 2A:14-1.1 as a bar to plaintiffs' recovering in the instant law suit. . . ."

Judge Malech, who heard the matter in the trial court, concluded that since more than ten years (actually more than 17 1/2 years) had elapsed after completion of the building, the complaint was time-barred by the statute. We agree and affirm.

It is entirely clear to us that each of the two counts set forth in the complaint falls squarely within the ambit of N.J.S.A. 2A:14-1.1. Each is, accordingly, barred by the ten-year time limitation on causes of action set forth in that legislation. The full text of the statute reads as follows:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an

injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the ...


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