On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-607-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued September 12, 2007
Before Judges Sapp-Peterson and Messano.
This is an appeal and cross-appeal of orders of the Law Division granting partial summary judgment*fn1 to defendant, Pinnacle Holmdel Developers, Inc., the builder of plaintiff, Karim Lahlou Kassi's home. The court dismissed all of plaintiff's claims except those related to certain bathroom fixtures, hardwood flooring and a front door. In addition, the court denied defendant's motion for litigation costs pursuant to Rule 4:58. We affirm the entry of both orders.
The salient facts, as derived from the record and viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), disclose that plaintiff entered into a contract with defendant for the construction and purchase of a single-family "spec"*fn2 residence, the Lexington model, located in a development known as the Gables in Holmdel Township. The $880,000 purchase price offered standard features by the builder, which included a "set of standard floor coverings," specifically, hardwood flooring in the foyer, dining room, living room, front staircase and kitchen. The purchase price also included $61,000 in additional options selected by plaintiff. Those selections included hardwood flooring in the library, upper hall and kitchen staircase. At no additional cost, defendant agreed to install brass towel and toilet paper holders in the master bath and second bath, as well as chrome towel and toilet paper holders in the main bath. Further, under the contract, defendant agreed to "use reasonable efforts to maintain any existing trees or vegetation within the cleared area of the property." Defendant did not warrant the condition of any existing trees, but agreed to remove dead trees within the cleared area, "if the trees [were] dead at the time of closing."
Finally, in advance of closing, plaintiff purchased a gas range. Defendant did not want to take responsibility for storing it prior to installation. Thus, the parties entered into a separate agreement related solely to the gas range. The agreement provided the following:
Purchaser MR KASSI LAHLOU at the Gables at Holmdel, Lot #38, Address: 1 Maple Leaf Drive in Holmdel, NJ 07733, wish[es] to provide and have Appliances installed prior to closing on the aforementioned home. Purchaser understands that they are installing these Appliances at their own risk and Pinnacle Holmdel Developers, L.L.C. cannot be held responsible for any resulting theft and/or resulting damage to the Appliance. In addition, the Purchaser is responsible for any damages to the home that may result from the delivery into the home of these Appliances.
Handwritten below this text but before the signature lines was the following text written by plaintiff: "As per contract, the 36" Thermador gas range is installed by you in order to obtain the [Certificate of Occupancy] C.O." This agreement was signed by plaintiff and Brant Reynolds (Reynolds), the Project Director for defendant. The gas range was delivered in late November 2001. Defendant did not install the range at that time but instead stored it in the garage while construction continued.
At some point during the fall of 2001, plaintiff was informed that installation of hardwood flooring for the kitchen staircase and in the upper hall would violate the BOCA*fn3 Code. In a letter to plaintiff's attorney dated November 20, 2001, plaintiff's counsel was advised that plaintiff would receive a credit for this option request.
On January 2, 2002, plaintiff completed a walk-through of the home which resulted in a "pre-closing punch list" itemizing aspects of the construction that were incomplete or unsatisfactory. Plaintiff claims that during this walk-through, he mentioned the absence of hardwood flooring for the kitchen stairway. That concern, however, was not reflected on the punch list that Reynolds prepared and plaintiff signed.
Closing occurred on January 11, 2002. Five days later, plaintiff's spouse reported the theft of the gas range from the garage to local police, advising that the range had been observed at the property as recently as two weeks earlier during the walk-through, but was missing when she and plaintiff arrived at the residence for the closing.
On March 6, 2002, defendant forwarded to plaintiff two checks, one for $1,254 and one for $313, representing the refund of plaintiff's deposit for the hardwood flooring. Plaintiff, however, returned the checks. By letter dated March 21, 2002, defendant responded, explaining that,
[t]he installation of the hardwood is not possible as previously explained to you because both the front and rear staircases are set to meet flush with the upper hall to accommodate carpeting. It would be a code violation to modify the stairs to have a difference in riser height of the required 3/4" for the hardwood. Your suggestion of raising the treads for the last 3 to 5 stairs is not feasible in your home since both staircases have oak treads and ...