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Saratoga at Toms River Condominium Association, Inc. v. Menk Corp.

May 28, 2009

SARATOGA AT TOMS RIVER CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
MENK CORPORATION, INC.; ADELE HOVNANIAN; LOUISE GIOVINAZZO; WRIGHT CONSTRUCTION CO., INC.; BIL-JIM CONSTRUCTION CO.; ALL COUNTY ENTERPRISES, INC.; MATA GENERAL CONSTRUCTION; DOMINGO SIERRA T/A BIRCHWOOD CONSTRUCTION CO.; MARCOS SIDING, INC.; KAZIMIERZ GAWLINKOWSKI SIDING; SAMBOL CONSTRUCTION CORP.; TBS CORP.; R.B. CARPENTRY BUILDERS, INC.; RIGO HERNANDEZ; ANTHONY CARD; HYMAN CONSTRUCTION; ANTONIO TORRES; LUIS GILBERTO LOPEZ-NEGRON; MAX'S CONSTRUCTION COMPANY OF NEW JERSEY; GILES CONSTRUCTION COMPANY; FRED LARSEN; T.A.J. PURPURO CORP.; JAVIER GONZALES; PRO CUT; MEYER & VENTA; GREATER NEW YORK MUTUAL INSURANCE GROUP; HARTFORD INSURANCE COMPANY; MERCER INSURANCE GROUP; FEDERAL INSURANCE COMPANY; WESTPORT INSURANCE COMPANY; AND UNITED STATES LIABILITY INSURANCE COMPANY, DEFENDANTS-RESPONDENTS, AND CHRIS AIKENS; ED DRESWICK; VROM YEGPARIAN; JAMES VALLE; FRED PATERSON; MIKE CARPINO; LITTLE RASCALS CONCRETE CO., INC.; R.W. THOMAS, INC.; GREENSCAPE, INC.; BENITO'S CONSTRUCTION; INDEPENDENT CONSTRUCTION; F.G. CONSTRUCTION; JP SIDING; CH CONSTRUCTION; COB SANANGO CONSTRUCTION CO.; CARFER CONSTRUCTION, INC.,; EAGLE EXCAVATING; GEORGE C. MUELLER; BILL RAPPLEVEA EXCAVATING; TRAP ROCK INDUSTRIES; ANCHOR FRAMING AND BUILDING, INC., MONMOUTH IRRIGATION CORP.; H&H MASON CONTRACTORS; JOSE FUNEZ CONSTRUCTION; JOE CARLOS GALLO; JOHN LUCIANO; PELLA CONSTRUCTION COMPANY; ROBERT GORRELL; AND ARIAS CONSTRUCTION, DEFENDANTS.
MENK CORPORATION AND K. HOVNANIAN INDUSTRIES, INC., DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
WRIGHT CONSTRUCTION CO., INC.; GILES CONSTRUCTION CO.; ALL COUNTY ENTERPRISES, INC.; STROBERHADDONFIELD GROUP, INC.; DANIELIAN ASSOCIATES; GEORGE H. HOPPE; O-DONNELL, STANTON, & ASSOCIATES; FRANK H. LEHR & ASSOCIATES; CHRISTIE-WERNER ASSOCIATES, INC.; MEYER & VENTA; EXECUTIVE PROPERTY MANAGEMENT, INC.; ARTHUR EDWARDS, INC.; FRANK CATANZARITE; RON MANCINI; DARREN MISA; STEVE DEL CUERCIO; ELAINE KAMINSKI; TONY FORANO; JOE PALAGONIA; DENNIS GOETTMAN; RUTH ANN MANZI; ED COX; FELICE CARRERO-SCHMIDT; JACK MCLACHLAN; LOUISE GIOVINAZZO; STEVE KISELICK; JOE FORESTIERI; LARRY FALCON; AND BILL BRIDA, THIRD-PARTY DEFENDANTS-RESPONDENTS, AND LITTLE RASCALS CONCRETE CO.; R.W. THOMAS, INC.; GREENSCAPE, INC.; SPRINKLER MASTER; PRIME MANAGEMENT COMPANY, THIRD-PARTY DEFENDANTS.
MICHAEL J. WRIGHT CONSTRUCTION CO., INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
R.B. CARPENTRY BUILDERS, INC.; RIGO HERNANDEZ; ANTHONY CARD; HYMAN CONSTRUCTION; ANTONIO TORRES; LUIS GILBERTO LOPEZ-NEGRON; MAX'S CONSTRUCTION COMPANY OF NEW JERSEY; GILES CONSTRUCTION COMPANY; FRED LARSEN; T.A.J. PURPURO CORP; JAVIER GONZALEZ; AND PRO CUT, THIRD-PARTY DEFENDANTS-RESPONDENTS, AND JOSE FUNEZ CONSTRUCTION; JOE CARLOS GALLO; JOHN LUCIANO; PELLA CONSTRUCTION C0MPANY; ROBERT GORRELL; AND ARIAS CONSTRUCTION, THIRD-PARTY DEFENDANTS.
ALL COUNTY ENTERPRISES, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
MATA GENERAL CONSTRUCTION; DOMINGO SIERRA T/A BIRCHWOOD CONSTRUCTION CO.; MARCOS SIDING, INC.; AND KAZIMIERZ GAWLINKOWSKI SIDING, THIRD-PARTY DEFENDANTS-RESPONDENTS, AND BENITO'S CONSTRUCTION; INDEPENDENT CONSTRUCTION; F.G. CONSTRUCTION; JP SIDING; CH CONSTRUCTION; COB SANANGO CONSTRUCTION CO., THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-23-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 6, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiff Saratoga at Toms River Condominium Association, Inc. (Saratoga) appeals from several orders entered on July 9 and 10, 2007 and an order entered on August 2, 2007 dismissing the complaint against defendants. Notwithstanding the number of parties and somewhat convoluted facts, this appeal focuses solely on a discovery issue because the complaint was dismissed with prejudice for plaintiff's failure to timely serve a supplemental expert report. We reverse the order of July 10, 2007 and remand for further proceedings against those defendants. We affirm the July 10, 2007 order dismissing all claims against defendant Strober-Haddonfield Group (Strober). Plaintiff is an association of condominium owners that is suing the developers, contractors and subcontractors for defects in the construction of 376 townhouses in fifty-five buildings.

Plaintiff alleges that as a result of the defective construction, the townhouses have had water leaks, mold and other problems with the buildings' common areas and individual units.

The complaint was originally filed by Hubschman & Roman on December 31, 2003 against Menk Corporation, Inc. (Menk) and a number of contractors. In September 2004, plaintiff substituted Stark & Stark as counsel and that firm added a multitude of additional defendants. Menk then filed a third-party complaint as did All County Enterprises, Inc., adding still more parties. April 28, 2005 was the original end date for discovery. That date was extended to December 1, 2005. A case management order entered on September 27, 2005 directed plaintiff to provide its expert report by January 3, 2006. In December 2005, however, plaintiff sought an extension of time to produce the expert report and was granted an extension to February 13. That date was further extended to April 15, 2006. Plaintiff produced the report on April 13, 2006 and submitted a supplemental expert report on May 31, 2006.

In July 2006, plaintiff sought leave to amend the complaint and that motion was granted on August 4, 2006, allowing plaintiff to file a fourth amended complaint on August 9, 2006. At a September 25, 2006 case management conference, defendants claimed that plaintiff's expert's reports were deficient because the two reports identified certain "categories" of construction defects, rather than specifically identifying and documenting every alleged defect. Plaintiff was then ordered to provide a further supplemental report by December 31, 2006.

In October 2006, however, Stark & Stark moved to withdraw as plaintiff's counsel, claiming that its withdrawal would not delay the case because plaintiff's expert was aware of the December 31, 2006 deadline for filing the supplemental report. Stark & Stark's motion to withdraw was granted on December 14, 2006. Plaintiff then had two weeks to retain new counsel and file the supplemental report. New counsel, Sodini & Spina (Sodini), entered an appearance on January 8, 2007.

On January 25, 2007, Menk, followed by the remaining defendants, moved to dismiss the complaint for plaintiff's failure to serve the supplemental report by December 31, 2006. Sodini opposed the motions and explained its predicament in attempting to obtain the information from Stark & Stark and review the voluminous material in the files. In opposition to the motions, Sodini's Hubert Cutolo certified that Stark & Stark did not cooperate in transferring files and, when it ultimately did -- beyond the deadline for filing the supplemental expert report -- it delivered thirty boxes of material, which could not be timely reviewed by Sodini.

The motions were argued and denied on February 16, 2007. By letter dated February 23, 2007, the court instructed plaintiff to identify the inspections and tests its expert still needed to do and submit an estimate of the time needed to complete the work. Plaintiff did so and provided a detailed explanation and protocol for completion of the supplemental report.

On March 28, 2007, plaintiff was ordered to submit the supplemental expert report by May 30, 2007. For a variety of reasons, largely outside of plaintiff's control, it was unable to comply with that order and on May 31, 2007, the trial court sua sponte entered an order to show cause why the complaint should not be dismissed with prejudice. The order to show cause was returnable July 9, 2007.

On July 9, 2007, the court heard argument and dismissed the complaint with prejudice. Its reasons were set forth in a written decision dated July 10, 2007, which stated:

The procedural history of this particular case can best be described as chaotic and protracted. There have been numerous extensions of discovery, numerous dates within which the [p]laintiff is to provide experts' reports, and a substitution of attorney. It is the failure of the [p]laintiff to respond to several [c]court [o]rders for the production of ...


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