On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2826-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Plaintiff Bernier Lauredan, M.D. was a commercial tenant of defendant GLC Group, LLC, pursuant to a March 1, 1999 lease for a property at 22 Ball Street, Irvington.*fn1 Defendant Mark Caller was GLC's representative. The lease contained an option to purchase. After defendants declined to honor plaintiff's attempt to exercise that option, plaintiff instituted a law suit in Essex County to enforce it. Plaintiff filed an amended complaint in March 2006, alleging the following causes of action: negligence (count one); breach of contract (count two); breach of the implied covenant to make repairs (count three); breach of the implied warranty of habitability (count four); unjust enrichment (count five); and tortious interference with economic advantage (count six).
In January 2007, Judge Rachel Davidson dismissed plaintiff's amended complaint without prejudice for failure to provide discovery. In May 2007, Judge Davidson dismissed counts two, three and four of plaintiff's amended complaint with prejudice. In June and July 2007, Judge Davidson respectively denied plaintiff's motion to reinstate his pleadings and his motion for reconsideration.
On August 10, 2007, plaintiff filed a second complaint against defendants, this time in Union County.*fn2 That complaint contained the following causes of action: negligence (count one); breach of contract (count two); breach of the implied covenant to make repairs (count three); breach of the implied warranty of habitability (count four); unjust enrichment (count five); tortious interference with economic advantage (count six); harassment (count seven); intentional infliction of emotional distress (count eight); and negligent infliction of emotional distress (count nine). On September 20, 2007, except as to counts six, seven, eight and nine, Judge Chrystal dismissed that complaint with prejudice based on the entire controversy doctrine, in that plaintiff alleged the same causes of action that Judge Davidson had dismissed in the Essex County action.
After plaintiff amended his Union County complaint to include a cause of action for breach of the implied warranty of habitability, defendants moved for summary judgment to dismiss all counts of the complaint. Judge Wertheimer heard that motion on January 4, 2008. He characterized defendants' motion as encompassing the following issues:
The issues before this court are whether certain facts pled by plaintiffs should be barred by the entire controversy doctrine, whether defendants can be held liable for tortious interference with an economic advantage, whether harassment is a cognizable cause of action under New Jersey civil law, whether plaintiffs' claims for intentional and negligent infliction of emotional distress must fail as a matter of law, whether facts pled by plaintiffs relating to an alleged break-in to plaintiffs' car should be stricken because defendants owed no duty to the plaintiffs, and whether facts pled by plaintiffs relating to an HVAC malfunction in February 2007, a burglary in February 2007, and a flood occurring in July 2007 should be stricken because defendants were not liable for damages arising from these events pursuant to the parties' lease agreement.
In a letter opinion dated January 9, 2008, Judge Wertheimer concluded that defendants' summary judgment motion as to counts one through four of the amended complaint was moot in that Judge Chrystal had already dismissed those counts. The judge granted defendants' motion as to plaintiff's intentional and negligent infliction of emotional distress claims and dismissed those counts of plaintiff's amended complaint. The court denied defendants' motion to strike the remaining counts of plaintiff's Union County complaint.*fn3 On March 28, 2008, Judge Chrystal, in the Union County action, granted defendants' motion for summary judgment as to count six of plaintiff's complaint, harassment.*fn4
Plaintiff subsequently moved before Judge Wertheimer for reconsideration of his January 9, 2008 opinion and order. In a letter opinion dated May 27, 2008, and reflected in an order dated June 10, 2008,*fn5 Judge Wertheimer denied plaintiff's motion for reconsideration. By order dated November 7, 2008, Judge Wertheimer dismissed all remaining counts of plaintiff's amended complaint with prejudice for failure to make discovery.
Plaintiff has not appealed from the September 20, 2007 order dismissing counts one, two, three and four of its complaint; nor has plaintiff appealed from the court's November 7, 2008 order dismissing the remaining counts of the complaint with prejudice. On appeal, plaintiff only challenges Judge Wertheimer's January 9, 2008, and June 10, 2008, orders, raising the following three points for our consideration:
JUDGE WERTHEIMER INCORRECTLY RULED THAT COUNTS ONE THOUGH COUNT FOUR OF PLAINTIFFS' AMENDED COMPLAINT HAD BEEN PREVIOUSLY DISMISSED BY JUDGE ...