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Polidori v. Kordys

Decided: November 3, 1988.

LOUIS POLIDORI AND POLIDORI CONSTRUCTION CO., A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS,
v.
KORDYS, PUZIO & DI TOMASSO, AIA, AND SUPERIOR MILLWORK CO., INC., A CORPORATION, DEFENDANTS-RESPONDENTS



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

Petrella and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

[228 NJSuper Page 389] On leave granted Polidori Construction Co. and its sole owner, Louis Polidori, collectively and individually referred to hereafter as "Polidori," appeal from the Law Division grant of motions for summary judgment favorable to defendants-respondents Kordys, Puzio & Di Tomasso AIA (Kordys) and Superior Mill Work Co., Inc. (Superior). The case previously had been

remanded for trial on issues specified in Polidori v. Kordys, Puzio & Di Tomasso, 217 N.J. Super. 424 (App.Div.1987).

Polidori was the owner of a two family house in which a family named Ferrazzano were tenants. Polidori had acted as the general contractor to build the house and performed carpentry and general construction work. The architecture for the house, including the stairway running between the basement and first floor was done by Kordys. The stairs were built by Superior. A plumber named Gaetano installed the plumbing.

Mrs. Ferrazzano fell on the basement stairs after checking a plumbing leak caused by the bursting of a pipe installed by Gaetano, which may have been inadequately insulated.

The Ferrazzanos sued Polidori and Gaetano. Almost two years after suit commenced, Polidori attempted to join Superior and Kordys as third-party defendants. The Ferrazzanos moved at the same time to join Superior and Kordys as direct defendants. These motions were brought and denied in May 1984. On April 16, 1984, the Ferrazzanos' suit against Polidori was settled for $80,000. It appears, therefore, that the first suit had been settled when motions to join Superior and Kordys as third-party defendants and as direct defendants were brought.

In July 1985, Polidori sued Kordys and Superior. A separate action brought by the Ferrazzanos against Superior and Kordys had earlier been dismissed by reason of the statute of limitations.

In the suit against Kordys and Superior, Polidori asserted five theories: (1) negligence; (2) contract breach; (3) strict liability; (4) indemnification; and (5) contribution.

Summary judgment was granted to Kordys and Superior on the issues of indemnification and contribution. Contribution

was barred because there was no "judgment" as required by N.J.S.A. 2A:53A-3. Indemnification was barred by reason of Polidori's partial fault.

At the same time as the counts for contribution and indemnification were dismissed, the trial judge dismissed the counts sounding in negligence, breach of contract, and strict liability. On Polidori's first appeal, we affirmed the dismissal on the issues of contribution and indemnification. Polidori, 217 N.J. Super. at 432, 433. Citing Young v. Steinberg, 53 N.J. 252 (1969), Judge Long's opinion held that a settlement and dismissal did not fulfill the requirement of a judgment as required by N.J.S.A. 2A:53A-3. The opinion also barred indemnification because Polidori's negligence was not solely vicarious as would be the case were it only the owner. By reason of Polidori's status as general contractor of its own building, the opinion also stated that Polidori had "primary" liability ...


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