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Mahony-Troast Construction Co. v. Supermarkets General Corp.

Decided: March 24, 1983.

MAHONY-TROAST CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
SUPERMARKETS GENERAL CORPORATION, A DELAWARE CORPORATION, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County.

Bischoff and J. H. Coleman. The opinion of the court was delivered by Bischoff, P.J.A.D.

Bischoff

[189 NJSuper Page 326] This appeal raises issues relating to the timeliness of a demand for arbitration of a dispute concerning the cause of continuing leaks in a roof installed by plaintiff. From a dismissal of plaintiff's complaint in which it sought to enjoin arbitration, plaintiff appeals.

By contract dated April 12, 1972 plaintiff agreed to build a combination warehouse and office building for defendant. The contract price was $6,960,701. Work was to be started no later than May 1, 1972 and completed no later than October 1, 1973.

Substantial completion is defined in the contract as being the date when all certificates of occupancy and approval required by any governmental authority or insurance underwriter have been issued and delivered to the owner.

The contract required that notice of demand for arbitration shall be filed "within a reasonable time after the claim, dispute or other matters in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations."

Plaintiff subcontracted the roofing to Mueller Roofing Service, Inc. for the sum of $361,000. Defendant requested that the roof be of the same type as plaintiff had installed on another building plaintiff had built for defendant. The roof was described as a three-ply asphalt smooth surface roof constructed over steel decking upon which insulation had been placed.

Mueller began work in January 1973 and completed installing the roof in the spring of that year. Almost from the date of installation the roof leaked. It leaked every time it rained and the leaks continued into 1977 and beyond. Originally, the repairs to the roof were made by Mueller.

On December 21, 1973 Mueller issued its warranty stating that it had "performed all work required by the Contract in accordance with the terms thereof and that all portions of the Work completed under the Contract are perfect as to materials and workmanship and will so remain from September 22, 1973 for a period of five years," and guaranteed that it would make good and replace all defects in the work for that five year period at its own expense.

On October 8, 1973 plaintiff released the required certificates of occupancy, dated October 4, 1973, to defendant.

Plaintiff attempted to correct the leaking roof through Mueller at first, and in 1977 hired another roofer to continue with the repairs. Plaintiff's attempts at correction of the problem continued through March of 1979.

In June 1979 defendant hired an expert to inspect the roof and report on the situation. In its report this expert attributed the problem of the roof to design deficiencies and deficient workmanship. Repairs to correct the ...


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