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Music Station, Inc. v. AJD Construction Co.

July 30, 2007

MUSIC STATION, INC., PLAINTIFF-APPELLANT,
v.
AJD CONSTRUCTION COMPANY, VIBRA-TECH ENGINEERS, INC., JERSEY CITY, THE EVENING JOURNAL ASSOCIATION, DEFENDANTS-RESPONDENTS,
2854 KENNEDY L.L.C., A/K/A THE ALPERT GROUP, JERSEY CITY REDEVELOPMENT AGENCY, CAP SERVICES, INC., DEFENDANTS, AND AJD CONSTRUCTION COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
LINDE-GRIFFITH CONSTRUCTION CO., Z&Z CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-1020-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Axelrad and Winkelstein.

Plaintiff, a former tenant of one of the defendants, The Evening Journal Association (Evening Journal), alleges that it suffered damages as a result of vibrations caused by pile driving on an adjacent property. Plaintiff appeals from multiple trial court orders that denied his motion to extend discovery; barred his expert; granted summary judgment to all defendants; and awarded sanctions against plaintiff's counsel. On appeal, plaintiff raises the following points:

POINT I. THE LOWER COURT IMPROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

a. The Lower Court Erroneously And Prematurely Granted VibraTech's Motion For Summary Judgment Prior To The Advent Of Discovery.

b. The Lower Court Inappropriately Granted Summary Judgment to Evening Journal Despite Its Breach of Music's Quiet Enjoyment.

c. The Lower Court Improperly Granted Summary Judgment to The Remaining Defendants Even Though Issues Of Fact Exist Under The Doctrine Of Res Ipsa Loquitur.

POINT II. THE COURT IMPROPERLY BARRED PLAINTIFF'S EXPERT REPORT, WHICH WOULD HAVE ABROGATED THE NEED TO RELY EXCLUSIVELY ON RES IPSA. POINT III.

SANCTIONS AGAINST MUSIC'S COUNSEL ARE AN ABUSE OF DISCRETION AND ERROR, ESPECIALLY PRIOR TO DISCOVERY AND, AT THE VERY LEAST, WERE EXCESSIVE.

a. Discovery Deduced That VibraTech Was Actively Inspecting The Damaged Store During the Course of Construction Foreclosing Its Argument That The Complaint Against VibraTech Was Frivolous.

b. The Court's Sanctions Were In The Very Least Excessive.

Having given careful consideration to plaintiff's arguments in light of the record, we affirm each order from which plaintiff has filed an appeal.

I.

The facts before the trial court may be summarized as follows. Plaintiff, Music Station, Inc. (Music Station), is a corporation that operated a retail music store at 2866 Kennedy Boulevard in Jersey City. Defendant 2854 Kennedy L.L.C. owned the adjacent property. Plaintiff alleges that in late September 2003 the vibrations from pile driving*fn1 performed on Kennedy's property by defendant AJD Construction Company (AJD) and third-party defendant Linde-Griffith Construction Company, the subcontractor AJD hired to perform the pile driving, caused foundation damage and cracks in the building that plaintiff leased from Evening Journal. After the cracks were ...


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