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Polidori v. Kordys

Decided: May 5, 1987.


On appeal from the Superior Court, Law Division, Passaic County.

Brody and Long. The opinion of this court was delivered by Long, J.A.D.


On this appeal plaintiffs, Louis Polidori and Polidori Construction Co., challenge the trial judge's grant of summary judgment dismissing the complaint they filed against defendants, Kordys, Puzio and Di Tomasso, AIA (Kordys) and Superior Millwork Co., Inc. (Superior). We affirm in part and reverse in part.

The case arose as follows: In 1979 Louis Polidori purchased a parcel of real estate on 11 Whitaker Avenue, West Paterson, New Jersey. Soon after the purchase, Polidori erected a two-family house on the land. Polidori, as the sole shareholder of

Polidori Construction Company, acted as the general contractor and performed the carpentry and general construction work. Architects Kordys, Puzio & Di Tomasso, AIA designed the house including the stairs running between the basement and the first floor. The stairs were built by Superior Millwork Co., Inc. Polidori subcontracted with Anthony Gaetano to install the plumbing.

During the construction, Polidori stated that he questioned the plumber about the way he installed a piece of copper piping. Polidori noted that the piping had been installed along an exterior wall without any insulation between the piping and the exterior face of the wall and that this method of installation could result in the pipe freezing and bursting. He testified that after questioning Gaetano about this method of installation, Gaetano stated "[t]hat the way it was installed was regular practice, it was done like that many, many times and he felt there was nothing wrong."

After the construction on the house was completed, Polidori leased the second floor apartment to Mr. and Mrs. Ferrazzano and their daughter. As part of the lease agreement, the Ferrazzanos were permitted to use the laundry facilities in the basement. Access to the basement was through the first floor apartment and down the stairs.

On December 28, 1980, Mrs. Ferrazzano heard the sound of running water. She summoned her husband and together they went to the first floor to investigate. After determining that the noise was coming from below they went down into the basement and found water on the floor. Mr. Ferrazzano opened the door to the basement bathroom and "water came gushing out." When Mr. Ferrazzano could not locate a shutoff, Mrs. Ferrazzano started up the basement stairs to call Polidori. As she climbed the stairs with wet slippers she lost her footing, fell and sustained injuries.

On July 9, 1982, the Ferrazzanos filed a complaint for damages against Polidori, Gaetano and others for injuries suffered

as a result of the fall. In May of 1984, Polidori filed a motion to join Superior and Kordys as third-party defendants. The Ferrazzanos filed a cross motion to amend their complaint to make these parties direct defendants. On May 23, 1984, these motions were denied.

Thereafter, the Ferrazzanos filed a separate action for damages against Superior and Kordys. The two actions were consolidated. The Ferrazzanos' claims against Superior and Kordys were subsequently dismissed on the ground that they were barred by the statute of limitations. The original action brought by the Ferrazzanos against Polidori was settled for $80,000 on April 16, 1984. Polidori and the Ferrazzanos entered into a Stipulation of Dismissal*fn1 and the Ferrazzanos' executed a release in favor of Polidori.

On July 10, 1985, Polidori filed a complaint against Kordys and Superior claiming negligence (count one); breach of contract and of express and implied warranties (count two); strict liability (count three); common law indemnification (count four), and statutory contribution (count five). Superior and Kordys filed motions for summary judgment seeking the dismissal of the complaint alleging that Polidori's claims for contribution and indemnification were based on the damages he paid to the Ferrazzanos in the original lawsuit. These motions were granted. With respect to contribution and indemnification, the trial judge ruled that Polidori failed to meet the "judgment" requirement of N.J.S.A. 2A:53A-3 thereby precluding contribution, and that Polidori was at least partly at fault for the accident to Mrs. Ferrazzano thus barring common law indemnification. He dismissed Polidori's remaining claims because

[a]ny causes of action plaintiff might have against these defendants arose from the loss plaintiff sustained by paying compensation to the Ferrazzanos. Until that time, plaintiff did not sustain ...

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