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Bozine v. D'Orazio

April 24, 2009

NICHOLAS BOZINE AND VERONICA BOZINE, PLAINTIFFS-APPELLANTS,
v.
CRAIG D'ORAZIO, CENTURY 21 HEARST REALTY, JASON LEPORE, CALABRESE HOMES, INC., STEPHEN CALABRESE AND GERALD DEMARCO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-107-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 29, 2009

Before Judges Parrillo, Lihotz and Messano.

Plaintiffs Nicholas and Veronica Bozine appeal from summary judgment entered in favor of defendants Century 21 Hearst Realty (Century 21) and Jason Lepore, and from the order denying plaintiffs' request for reconsideration. Plaintiffs argue sufficient evidence was presented demonstrating the existence of material factual disputes, making the grant of summary judgment inappropriate. Following our review of the record, we are persuaded by plaintiffs' arguments and reverse.

We recite the facts derived from evidence submitted by the parties in support of and in opposition to the motion for summary judgment, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

On October 31, 2001, Craig D'Orazio contracted with defendant Calabrese Homes, Inc., owned by defendant Stephen Calabrese (collectively Calabrese), to build a single-family residence at 1 Lansbrook Court in Washington Township (the home). Unfortunately, D'Orazio lost his job. He contacted Century 21 to sell the uncompleted home. Lepore was D'Orazio's Century 21 agent. Plaintiffs saw a multiple listing service (MLS) description for the home stating it was a "Brand-New, One of a Kind Custom Built Home!" in "average condition" and "ready for delivery." The listing also stated the home was not part of a homeowner's association. Plaintiffs contacted Century 21 agent Lonnie Chiavo regarding the home. Century 21 disclosed the house was initially constructed at D'Orazio's request and it was acting as the listing broker.*fn1 Guided by Chiavo, plaintiffs viewed the home.

During the walk-through, plaintiffs saw water in the basement. Plaintiffs questioned Lepore, who suggested the water likely resulted from the basement windows being left open or from workers hosing down the basement floor. Lepore agreed he would check with the contractor. Lepore later confirmed that what he surmised as the water's source was correct. In a second walk through, evidence of basement water remained present. Plaintiffs again questioned Lepore and spoke to Calabrese, who stated the water resulted from work on the septic system and any water problem would be corrected.

A proposed Contract for Sale of Real Estate (the contract) was circulated. The contract, as originally proposed, was specifically amended at plaintiffs' request to include a comprehensive addendum. One paragraph of that addendum stated:

The dwelling shall be constructed in accordance with the Architect's Sealed Blue Prints A-1 through A-8, inclusive, prepared by John W. Bishop ARA, copies of which are attached hereto as Exhibit "A". The dwelling shall be further constructed and contain those features as set forth in the Multiple Listing Service provided by Century 21 Hearst Realty, Inc., a copy of which is attached hereto as Exhibit "B".

Following Calabrese's review of the addendum, he telephoned Lepore. Calabrese issued an undated memo to Lepore confirming:

Item 2: The contract will include a reduced set of the blueprints unsealed. The prints are owned by the architect and are not the possession of the seller or the builder. Also the home was not constructed exactly as the blueprints show. This is due to on-site decisions made by the builder, change orders, options, truss manufacture[']s interpretation of the prints. None of the variations of the prints ha[ve] changed the home to the extent that the home is not structurally sound.

Lepore did not relate the contents of Calabrese's memo to plaintiffs. On February 18 and 19, 2003, plaintiffs and D'Orazio executed the contract, which included the addendum, as witnessed by Lepore.

Plaintiffs commissioned a home inspection report from Aardvark Home Inspections, issued on March 12, 2003. The Aardvark inspector, Sam Flamma, conducted a visual investigation of easily accessible areas of the home. Flamma's report identified the following areas as unsatisfactory: grading away from house; concrete walks and driveways; condition of the roof, including flat valleys and exposed nails; carbon monoxide detectors; and extreme signs of wetness in the basement. The report also listed five areas labeled as "Major Deficiencies." These included: "roof"; "structural issues"; "safety items such as, ...


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