On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, Docket No. L-2413-07.
The opinion of the court was delivered by: Kestin, J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.L. Miniman and Kestin.
Plaintiff, Eastern Concrete Materials, Inc., appeals from an order of August 2, 2007 granting the motion of defendant Daibes Brothers, Inc. (Daibes) for reconsideration of an April 12, 2007 judgment on an order to show cause, entered pursuant to R. 4:67-5; vacating that order and judgment; holding that plaintiff "is not a valid and rightful lien claimant" under the terms of N.J.S.A. 2A:44A-2, a provision of the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38; and ruling that a March 27, 2007 arbitration decision and award issued pursuant to N.J.S.A. 2A:44A-21 "be considered a valid interpretation of the lien provisions and thereby reinstated[.]" Judge Donohue appended a "rider" to the August 2, 2007 order elucidating the reasons for the result reached.
According to plaintiff's own depiction of the facts, it supplied certain construction materials valued at $701,864.72 in connection with "the improvement of a . . . high-rise condominium building[.]" The bill for those materials, addressed to "Nigo Construction" (Nigo) of Newburgh, New York, was not paid and plaintiff filed a lien against the property, citing the authority of the Construction Lien Law.
Further according to plaintiff,
[t]hose construction materials were used and incorporated by Nigo Construction Corp. in the performance of the cast-in-place foundation and slabs labor work for the construction of the . . . building under a June 3, 2005 Purchase Order from R&L Construction Corporation for such direct foundation and slabs construction work.
The owner and developer of the . . . project is Tarragon Edgewater Associates, LLC, that, in turn, had contracted on April 4, 2005 with the defendant, Daibes Brothers, Inc. . . . to be the General Contractor for the overall labor services and materials provision for the . . . project.
Plaintiff, itself, summarizes the relationships by describing Tarragon Edgewater Associates as the owner and developer; Daibes as the "general contractor"; R&L Construction Corporation (R&L) as the "subcontractor"; Nigo as having done work that was "the subject of [a] June 3, 005 Purchase Order from R&L[;]" and plaintiff as having supplied materials to Nigo.
In his cogent written opinion, Judge Donohue focused on "the three-tier rule established by [the statute.]" He stated:
N.J.S.A. 2A:44-2 limits the definition of a "supplier" to a "supplier of material . . . having a direct privity of contract with an owner, contractor or subcontractor, in direct privity of contract with a contractor."
The supplier must have a contractual relationship with either an owner, general contractor or subcontractor. Plaintiff's purchase order identifies its contractual relationship was with a sub-subcontractor, Nigo Construction Corp. As the court has before it all ...