On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8833-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Plaintiffs Danielle McGinty, Candace McGinty, Daniel McGinty, and Kathryn McGinty appeal from an order entered by the trial court on March 4, 2005, granting summary judgment in favor of defendant K. Hovnanian at Somerset (Hovnanian), which had been improperly pled as K. Hovnanian Companies of New Jersey, Inc. Candace McGinty also appeals from orders entered on May 12, 2006, which granted summary judgment in favor of defendants Nastus Brothers, Inc. (Nastus) and Society Hill at Somerset Condominium Association, Inc. (Society Hill). For the reasons that follow, we affirm.
On May 7, 2004, plaintiffs filed this action in the Law Division against Hovnanian, Nastus and Society Hill. In their complaint, plaintiffs alleged that in November 1985, Daniel and Kathryn purchased a condominium unit in the Society Hill development in Franklin Park Township (Township), Somerset County. Society Hill was the condominium association for the development. Hovnanian constructed and sold the unit to Daniel and Kathryn and, in November 1985, they moved in with their two children. At the time, Candace was six years old, and Danielle was eighteen months old.
Plaintiffs alleged that, shortly after they moved into the condominium and until the time they were "forced to move," they suffered from "various illnesses" that were "directly related to and proximately caused by toxic exposure due to various environmental contaminants in the home[.]" Plaintiffs asserted that they had been diagnosed with "sick building syndrome." They alleged that they suffered from multiple allergies, including severe mold allergy; chronic fatigue; depression; and abnormal blood cultures. Plaintiffs claimed that they were exposed to certain bacteria that required medical treatment and monitoring.
When the complaint was filed, Candace was twenty-four and Danielle was nineteen years old. Both Candace and Danielle alleged that, when they were minor children, they became "sick, sore and disabled" as a result of the "wrongful exposure to toxic substances." Both Candace and Danielle said that they had been diagnosed as suffering from "chronic neurotoxicity with associated attention and cognitive problems." Candace asserted that she became aware of her injuries in March 2004.
In counts one and two of the complaint, Candace and Danielle sought compensatory damages for their personal injuries, future medical expenses, emotional distress, pain and suffering, and loss of earning capacities. In count three, Candace and Danielle sought punitive damages. In count four, Kathryn and Daniel asserted claims for the medical expenses they had incurred and would incur in the future for their daughters' care and treatment. Plaintiffs all sought pre- and post-judgment interest, attorneys fees, and costs of suit.
Sometime in the fall of 2004, defendants filed motions for summary judgment, which the trial court denied without prejudice by orders entered on January 7, 2005, because discovery was not complete. On January 11, 2005, Hovnanian again filed a motion for summary judgment. Society Hill filed a cross-motion for partial summary judgment on February 7, 2005. Hovnanian and Society Hill argued that plaintiffs' claims are barred by the Statute of Repose, N.J.S.A. 2A:14-1.1(a) because their claims had not been brought within ten years after construction of the unit was completed.
In response to the motions, Kathryn filed an affidavit in which she asserted that, in the spring of 1986, plaintiffs first detected a foul odor in the unit. Kathryn said that plaintiffs did not become aware of the full extent of the "problem" in the unit until July of 1988, when they found water in the linen closet. Kathryn said that a complaint regarding the plumbing was registered with Society Hill.
Society Hill called in Nastus, a plumbing contractor, to follow-up on the complaint. According to Kathryn, Nastus detected methane gas in the unit and determined that the source of the problem was under the kitchen sink and inside the walls. Nastus cut a hole in a wall and through the kitchen cabinet, which exposed the area beneath the bathtub.
Kathryn asserted that Nastus found a disconnected plumbing trap "laying in a bog of moldy muddy water" beneath the slab foundation, where water had been draining. Nastus temporarily re-connected the trap and advised that additional repair work was required to address the problem.
Nastus informed Society Hill of the problem but did not make any additional repairs. Kathryn asserted that the leaks from the pipes continued. The entire area was left exposed, which Kathryn said "exacerbated the dangerous condition in [the] unit[.]" She stated that plaintiffs had been exposed to ...