On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-2607-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Robertet Flavors, Inc. (Robertet), appeals from a summary judgment dismissing Robertet's claims against defendants Academy Glass, Inc. (Academy), Tri-Form Construction, Inc. (Tri-Form), and Robert Karabinchak (Karabinchak) following the entry of two orders barring Robertet from presenting any expert testimony because it partially destroyed the evidence of the alleged defective installation of a window system in its new corporate headquarters.*fn1
Robertet is a business that creates, manufactures, and sells flavors to food, beverage, and pharmaceutical companies within the United States and Canada. In 1995 Robertet's architect began to design buildings to be constructed at 10 Colonial Drive, Piscataway, for Robertet's new headquarters. Through a series of meetings, specifications for the building were created by the architect and a committee from Robertet. Robertet was the general contractor and hired Tri-Form as the construction manager. Subcontractors were chosen through competitive bidding. Karabinchak, the president of Tri-Form, was designated as the site supervisor once work in the field began. He was responsible for coordinating, supervising and approving for payment all work done by subcontractors on the site. Construction began in the spring of 1997, the administration building was completed in December of 1998 and the warehouse was completed in March or April of 1999.
The window subcontractor was Academy, which Robertet hired to install both strip-window walls and curtain-window walls. Academy worked from late 1997 until 1998. Mark Epstein, the president of Robertet from 1997 through 2000, testified that Karabinchak supervised Academy's work.
In early 1999 Robertet noticed water leaking around the window walls located on one side of the administration building. At first, small amounts leaked in, but later the volume increased. By the beginning of 2000, Robertet was placing five-gallon buckets on the windowsills, which would fill up with water once or twice during heavy rainstorms. Robertet contacted Academy, which inspected the windows a few times beginning in early 1999. Although Academy usually did nothing, once it suggested caulking some of the windows. Academy hired someone and paid for the caulking but nothing improved. The infiltration of rainwater continued and Robertet continued to call Academy through 2000. However, by the beginning of 2001, Academy stopped returning Robertet's calls and Robertet stopped calling Academy to get the windows fixed.
Robertet eventually decided to hire someone to examine the problem and contacted a forensic architect, James Gespari, who inspected the windows and suggested Robertet hire Joe Freza and Associates (Freza). When Freza tested the windows toward the end of 2001, he informed Robertet that he needed to remove a section of the window wall to permit him to determine the cause of the problem. With Robertet's consent, Freza had Pioneer Glass remove a section of the window wall in the lunchroom in February 2002. Freza and Pioneer's employee, Mr. Munro, discovered quite a bit of black mold and a lot of moisture. Munro performed his own evaluation of the situation. Robertet then hired Consulting & Testing Services, Inc. (CTSI), to evaluate the mold issue.
By this time Robertet had filed a complaint on February 1, 2002, against these and other defendants alleging construction defects in the concrete floor of the warehouse, the concrete sidewalks, interior work, the windows, the exterior stucco and the management of the construction. Robertet was represented by Milton Breitman, Esquire, a sole practitioner in his early eighties who had represented Robertet for many years. Tri-Form and Karabinchak filed an answer on March 22, 2002, and at that time demanded an inspection of the property and immediate notice of any intended remediation. Breitman did not respond to this request.
In the meantime, Munro rendered a report and made a presentation recommending that Robertet remove all of the strip windows and replace them with a whole new system. The CTSI report showed a very large mold problem in the outside offices on both floors. Robertet decided it had to remove all areas contaminated by mold, i.e., remove and replace the window systems, the interior walls, the insulation and the carpeting.*fn2
Each exterior office would have to be redecorated.
Robertet then hired various contractors to perform the specific job functions. It hired Freza as the point man for the reconstruction and Pioneer Glass for the replacement of the window-wall systems. By late spring 2002 Robertet knew it would take up to fourteen weeks to obtain the glass for the strip-window system, so repairs to the curtain-wall system were begun first in the summer of 2002. The strip-window repairs were scheduled to start in December because Robertet closed down its plant during Christmas week each year. Robertet began the strip-window system abatement on December 13, 2002.
Robertet advised Breitman that the repairs were scheduled and proceeding. In October 2002 Breitman's son, Mark Breitman, Esquire, called Epstein to advise him that his father was hospitalized and seriously ill. The following month Epstein called counsel for Academy to advise her that remediation was in progress, but she would not allow him to communicate with her in accordance with the requirements of the Rules of Professional Conduct. Later, Breitman's son again called Epstein to inform him that his father had a second stroke and would no longer practice law. He stated that he was bringing his father's files to Franzblau Dratch.
Robertet's current counsel filed a motion on December 17, 2002, as special counsel seeking to dismiss the first suit voluntarily due to Breitman's advanced age and failing health and his failure to provide or obtain discovery. Various defendants filed motions to dismiss for failure to provide discovery, which were denied by order of April 14, 2003, when the judge granted Robertet's motion to dismiss voluntarily on condition that Robertet pay defendants' counsel fees. Robertet promptly refiled its complaint but Academy was not named as a defendant in this action. Robertet then amended the complaint on November 5, 2003, to include Academy as a defendant. Robertet does not dispute that the defendants first learned of the ...