On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication November 2, 1995.
Before Judges Landau, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by KLEINER, J.A.D.
Plaintiff, Atlantic paradise Associates, Inc., appeals from the trial court's grant of summary judgment to defendant Perskie, Nehmad & Zeltner (Perskie Nehmad), a law firm. Plaintiff charged Perskie Nehmad and a second law firm, Cooper, Perskie, April, Niedelman, Wagenheim & Levenson (Cooper Perskie) with legal malpractice. Defendant Perskie Nehmad moved for and was granted summary judgment. Subsequently, plaintiff settled its claim against codefendant Cooper Perskie and filed this appeal as of right.
In granting summary judgment to defendant, the motion Judge does not appear to have considered our decision in Petrillo v. Bachenberg, 263 N.J. Super. 472, 623 A.2d 272 (App. Div. 1993). Prior to oral argument on this appeal, the Supreme Court affirmed that decision in Petrillo v. Bachenberg, 139 N.J. 472, 655 A.2d 1354 (1995). The principles enunciated in Petrillo mandate that we reverse the dismissal of plaintiff's complaint and remand this matter for trial.
In March 1983, U.S. Capital Corporation retained defendant Perskie Nehmad to represent it on its acquisition of a planned high rise condominium building known as the Enclave, which was to be constructed on the Boardwalk in Atlantic City. The initial developer obtained preliminary site plan approval of this project in 1981. The approval was modified in January 1983. On January 12, 1982, a public offering statement was filed with the New Jersey Department of Community Affairs. The project was then sold to U.S. Capital's predecessor in title. In August 1983, defendant submitted an amended application for registration and an amended public offering statement that reflected the change in project ownership. In June 1985, a second amended public offering statement was filed that corrected typographical errors in the prior statement and reflected a change in name of the corporate owner.
The master deed, which was included in the public offering statement, provided:
Residential Units are for the use of Residential Unit Owners, their guests, tenants, licensees, invitees and other occupants. Anything in this Master Deed or in the By-Laws to the contrary notwithstanding, there shall be no restrictions on the right of a Residential Unit Owner to lease or rent the unit as otherwise allowed by law provided that all of the occupants, tenants, licensees and invitees of the Residential Unit Owner shall be subject to all the other provisions of this Master Deed and By-Laws.
The master deed also provided that "there shall be no restrictions on the right of a Unit Owner to rent or lease his Unit provided that all occupants of a Unit shall at all times be subject to the provisions contained in the Master Deed and in the other Condominium Documents." Article 15 section A(3) of the public offering statement warranted that "the purchaser's unit and the common elements will substantially conform to the plans and description used as part of the sales literature."
In March 1986, Sam Rosenfarb was solicited at a sales office on the Boardwalk and invited to invest in the Enclave. Rosenfarb's certification filed as part of plaintiff's cross-motion for summary judgment indicated that the sale solicitation represented the Enclave as a "condotel," where residential units could be rented on a transient, hotel-like basis. The corporate owners of the Enclave marketed the condominium as a resort condominium in which units could be rented out on a daily basis. The brochure included pictures of a front desk and concierge facility.
Rosenfarb also certified that in March 1985, Host Management Corporation, a hotel/resort operator, was hired as a rental agent for condominium unit owners who wanted to rent their units on a transient basis. Host Management was also responsible for operating a restaurant, gift shop, front desk, and switchboard, all ...