On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, MON-L-2528-96.
Before Judges Coburn, Collester and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2002
On May 2, 1996, plaintiffs-appellants Mark and Linda Levine filed a complaint against The Kramer Group, Sol Kramer, Isaac Kramer, Philip Kramer, Eli Kramer, Fred Mosesman, Bruce Forman, Charter Club Associates, L.P., Charter Club, Inc., and Charter Club at the Hampton, Inc. ("Kramer defendants"). The Kramer defendants are the respondents in this appeal. Plaintiffs also joined Richard Sofo as a defendant. Sofo is not a party to this appeal because plaintiffs have since settled their claims with him.
The complaint alleged six causes of action against the Kramer defendants which plaintiffs maintain arose from the Kramer defendants' omissions and intentional misrepresentations regarding their experiences with Sofo. Plaintiffs alleged that the Kramer defendants should be found liable for claims based on (1) fraudulent misrepresentation; (2) fraudulent non-disclosure; (3) negligent misrepresentation; (4) recission of the sales contract; (5) violation of N.J.S.A. 56:8-2 and other provisions of the Consumer Fraud Act; and (6) violation of N.J.S.A. 45:22A-37(a) and other provisions of the Planned Real Estate Development Full Disclosure Act (PREDFDA). In addition, plaintiffs asserted two causes of action against Sofo, for harassment and intentional infliction of emotional distress.
Judge Robert W. O'Hagan heard motions for summary judgment and to dismiss the complaint and determined them on March 31, 2000, in an order that dismissed all of plaintiffs' claims against the Kramer defendants pursuant to R. 4:6-2(e), because, he ruled, plaintiffs failed to state a claim upon which relief could be granted. We affirm.
Our summary of the facts and the parties' factual contentions begins with the making of an agreement between plaintiffs and the Kramer defendants, specifically defendant Charter Club Associates, L.P., dated July 30, 1993, under which plaintiffs were to purchase, and the Kramer defendants' entities would construct and sell, a new home on property at 42 Amagansett Drive, Morganville, New Jersey. The complaint against the Kramer defendants centers on contentions that they are liable to plaintiffs for the conduct of Sofo, who owned a home on property that adjoined the new home being built for plaintiffs. It is undisputed for purposes of this appeal that at some point after the parties' entry into the agreement in July 1993, Sofo embarked on a course of conduct that, at least in some of its manifestations, was alarming and harassing, as well as repellent.
Plaintiffs do not contend, however, as they made clear at oral argument before us, that the Kramer defendants had any knowledge or notice prior to the making of that agreement that Sofo had engaged in or would engage in such conduct. Sofo had purchased his home on the adjoining property in 1987, and he lived at that location with his family until April 1998.
On or about October 15, 1993, construction began on plaintiffs' home with the pouring of footings and the foundation. Sofo thereafter communicated with the Kramer defendants, various Marlboro Township officials, and the Marlboro Township Mayor regarding the construction of plaintiffs' home. For example, on October 20, 1993, Sofo sent a letter to Linda Sansone at the Office of the Mayor, which purportedly confirmed the details of a phone conversation Sofo had had with Ms. Sansone in which he had expressed his dismay over the construction taking place adjacent to his property. On October 25, 1993, Sofo sent a letter directed to the Office of the Mayor stating his concern about a "loophole" in the zoning code and his continued objections regarding the construction taking place on the site of plaintiffs' future home. Sofo stated that he was unhappy with the height of the finished foundation on the adjacent property. Sofo provided background information to the mayor on his situation to help "bolster . . . sympathy" for his "plight."
Sofo then sent a letter dated October 29, 1993, to Mayor Matthew Scannapieco of Marlboro Township. He wrote in pertinent part the following:
You should know that since this nightmare began, on October 15, I have been so distraught that I have yet to get a proper night's sleep. Try as I might, I simply cannot put aside the haunting acknowledgment that I can do nothing, seemingly to stop its progression. I am all consumed with vengeful thoughts, coupled with thoughts of moving; including the notion of selling my home at a loss, to the largest group of the most loathsome bunch of excuses for human beings that I can feasibly round up.
Thus far, all of my worst fears predicted and projected in my earlier communications have been confirmed. In fact, the sight of the completed foundation is even more abhorrent than I had imagined. Every time I step outside my home, only to be hit in the face with that monolithic abomination, I think of starting up ...