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Nowicki v. Allunario

July 13, 2007

KERI A. NOWICKI AND JUDITH THOMPSON, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
JAMES ALLUNARIO, JOHN ALLUNARIO, AND ROBERT ALLUNARIO, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS, CORNERSTONE HOME INSPECTION, AND MICHAEL DOMINIANNI, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5259-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2007

Before Judges Kestin and Weissbard.

Defendants, James Allunario, John Allunario, and Robert Allunario, appeal from a final judgment, entered following a jury trial, in favor of plaintiffs, Keri A. Nowicki and Judith Thompson, in the amount of $24,695.69. We reverse and direct the entry of judgment for defendants.

The case arises from plaintiffs' purchase from defendants of property at 35 Ryerson Avenue, Bloomingdale. The contract of purchase was signed on July 23, 2002. The contract stated in bold type: that the Property is being sold in an "As Is" condition and that this Agreement is entered into based upon the knowledge of the Buyer as to the value of the land and whatever buildings are upon the Property and not on any representations made by the Seller, the named Broker(s) or their agents as to character or quality.

The contract gave the buyer the right to an inspection by a qualified inspector, and provided a period of time for the sellers to cure any defects identified by the inspector; if the seller declined to cure the defect, the contract was voidable by the buyer.

Defendants were also required to complete a Seller's Disclosure Statement (SDS), which was signed by the three defendants on July 17, 22, and 23, 2002, and countersigned by plaintiffs on August 6, 2002. The SDS stated the following:

2. NOTICE TO SELLER:

Each Seller is obligated to disclose to a buyer all known facts that materially and adversely affect the value of the property being sold and that are not readily observable. This disclosure statement is designed to assist Seller in complying with disclosure requirements and to assist Buyer in evaluating the property being considered. The listing real estate broker, the selling real estate broker and their respective agents will also rely upon this information when they evaluate, market and present Seller's property to prospective buyers.

3. NOTICE TO BUYER:

This is a disclosure of Seller's knowledge of the condition of the property as of the date signed by Seller and is not a substitute for any inspections or warranties that Buyer may wish to obtain. It is not a warranty or representation by the listing broker, or their agents.

Defendants responded in the negative to questions on the SDS asking whether they were "aware of any past or present movement, shifting, deterioration, or other problems with walls or foundations." Defendants did provide information as to "water leakage in the house," with a notation alongside that entry, "cosmetic not structural." Defendants denied having made any "structural changes" but did identify a number of "alterations." In response to whether any former owners had made structural changes, defendants checked off "unknown."

A notation on the form said "SEE MOM."

In fact, the property, which according to the SDS was over ninety-years-old,*fn1 had been previously owned by defendants' parents. Defendants' father having died, defendants' mother had transferred title to her sons about a year before plaintiffs' purchase. According to deposition testimony of defendants' mother, introduced at trial, the home had been converted from a one-family to a two-family residence in the early 1950's when she married defendants' father, in order that her in-laws could live on the first floor while she and her husband lived on the second. Thereafter, the family moved to a new house next door. Defendant James Allunario was five-years-old when the family moved, John was an infant, and Robert was not yet born. The house was used as a two-unit rental property for more than forty years prior to the sale.

On July 26, 2002, defendants' attorney wrote to plaintiffs' attorney suggesting a number of "changes/amendments" to the contract of sale, which were accepted by plaintiffs' attorney on July 26, 2002. The letter, which thus constituted an addendum to the contract, stated in part that:

13. All representations are to the best of sellers' knowledge and shall not survive closing of title.

14. Any and all disclosure statements provided by the sellers through the realtors are for informational purposes only and shall not be construed as a warranty or representation, nor survive closing of title. Buyer agrees that the results of any inspections shall supersede any disclosure made by the sellers.

On August 3, 2002, plaintiffs had an inspection performed by Michael Dominianni of Cornerstone Home Inspection (collectively Cornerstone). As a result, plaintiffs requested that some termite infestation be treated, ...


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