On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5506-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Third-party plaintiff Isadore Spiegel appeals from an order entered on August 24, 2007, which granted summary judgment in favor of third-party defendant George Leontarakis. For the reasons that follow, we reverse.
Spiegel and Leontarakis are the owners of adjacent properties in Millburn, New Jersey. Spiegel made a claim under a homeowner's insurance policy issued by Great Northern Insurance Company for certain damage to Spiegel's property which allegedly was caused by the loss of lateral support that occurred when excavation work was performed on Leontarakis's property.
It appears that Leontarakis had planned to construct a new home on his property, and he hired architect Robert Dill to design the structure. Dill also served as general contractor for the project. Dill retained Colonial Oaks Construction, Inc. to perform the construction work. Colonial retained Preferred Construction, Inc. to do the masonry work, and Preferred hired David Guatarz to excavate the site. After the excavation was completed, soil supporting a brick privacy wall on Spiegel's property slid into the basement excavation. Although an effort was made to shore up the wall, it collapsed onto Leontarakis's property.
Great Northern filed an action against Spiegel and Leontarakis, seeking a declaratory judgment as to its coverage obligations under the Spiegel's homeowner's insurance policy. Spiegel thereafter filed a third-party claim against Leontarakis, Dill, Colonial, Preferred Construction, and certain other parties, for the property damage caused by the excavation. Prior to trial, Spiegel settled its claim against Great Northern.
Spiegel's claims against Leontarakis, Dill, Colonial Oaks, and Guatarz went to trial.*fn1 Spiegel alleged that the loss of lateral support caused extensive damage to the brick privacy wall, his home, an in-ground swimming pool, the pool patio, the walkways, and the front steps. Spiegel's expert testified that the total cost to repair the damage was $925,874, which included $366,600 to replace the brick privacy wall.
After Spiegel had presented his case, the trial judge entered a directed verdict in favor of Leontarakis, finding that there was no evidence that Leontarakis was negligent and he could not be liable for any negligence on the part of his contractors. Thereafter, Spiegel reached settlements with Dill, Colonial Oaks, and Guatarz and received $112,500.
Spiegel appealed the dismissal of his claims against Leontarakis. While the appeal was pending, Speigel's property was damaged by fire. Spiegel's fire insurance carrier paid him $2,478,787.13 for the structural damage to the home, $1,470,000 for the contents of the home, and $180,000 for the bar, table, and pool.
We held that the trial judge erred by dismissing Spiegel's claims against Leontarakis because Leontarakis had a non-delegable duty under N.J.S.A. 46:10-1 to provide lateral support to Spiegel's property and a reasonable jury could find that he breached that duty. Great Northern Ins. Co. v. Spiegel, 387 N.J. Super. 583, 594-95 (App. Div. 2006). We remanded the matter to the trial court for further proceedings. Id. at 597.
The parties agreed that the only claim remaining on remand was the claim for the damage to the brick privacy wall. Because his expert on damages died while his appeal was pending, Spiegel retained a new expert, who opined that the cost to replace the damaged brick privacy wall was $350,000.
On April 11, 2007, Leontarakis filed a motion for summary judgment. He argued that, because Spiegel had received sufficient monies to cover the cost to replace the brick privacy wall, Spiegel was ...