On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3123-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Chambers.
Plaintiff Designer License Holding Company, L.L.C. appeals from an order entered by the trial court on October 22, 2008, which granted motions by defendants The Resource Club, Ltd. (Resource Club) and 99 Hook Road, L.L.C. (99 Hook Road) to dismiss plaintiff's amended complaint with prejudice, and denied plaintiff's motions for leave to file a second amended complaint and for consolidation of this case with another Law Division action. Plaintiff also appeals from the trial court's January 8, 2009 order, which denied its motion for reconsideration. For the reasons that follow, we affirm.
In April 2004, Resource Club and 99 Hook Road executed an agreement under which Resource Club leased from 99 Hook Road approximately 188,720 square feet of retail warehouse space in Bayonne, New Jersey for a five-year period commencing on October 1, 2004 (the Master Lease). On February 15, 2007, the parties executed a consent to sublease a portion of the premises to plaintiff (the Consent Agreement). On February 15, 2007, plaintiff and Resource Club executed the Sublease Agreement, which provides, among other things, for the sublease of 96,240 square feet of the leased space to plaintiff.
According to plaintiff, sometime in the late summer or fall of 2007, several of its employees noticed a foul odor in the premises. Plaintiff's vice-president, John Llano, thought that the odor was emanating from burlap bags that belonged to another sublessee in the building. Plaintiff contacted Resource Club and requested that it take steps to address the problem. Resource Club informed 99 Hook Road, which made two unsuccessful attempts to remediate the problem.
Plaintiff thereafter retained a consultant to perform an air quality survey of the subleased premises. The consultant rendered a report dated February 15, 2008, in which it concluded that there were elevated levels of carbon dioxide in certain locations but that the levels of carbon monoxide were within acceptable guidelines and standards. In March 2008, plaintiff notified Resource Club that the foul odor was damaging its inventory and producing an intolerable working environment for its employees.
Plaintiff's consultant later performed another air quality survey. In a report dated May 15, 2008, the consultant stated that the levels of carbon dioxide were acceptable but there were elevated levels of carbon monoxide in most of the locations tested. The consultant recommended that "site personnel be removed from the area until such time that the source of airborne carbon monoxide is identified." Plaintiff claims that several of its employees became ill because of the conditions in the premises.
On or about May 16, 2008, plaintiff vacated the premises and relocated to a new warehouse in Harrison, New Jersey. In a letter of that same date, plaintiff informed defendants that it had been constructively evicted as a result of the foul odors and high levels of carbon dioxide and carbon monoxide in the premises.
On June 16, 2008, Resource Club filed an action against plaintiff seeking the rent due under the Sublease Agreement. On June 24, 2008, plaintiff filed a complaint and amended complaint against Resource Club and 99 Hook Road and asserted claims for constructive eviction and fraud.
On July 22, 2008, Resource Club filed a motion to dismiss plaintiff's complaint. On August 5, 2008, 99 Hook Road also moved for dismissal of the amended complaint. Plaintiff opposed the motions and filed a cross-motion seeking leave to file a second amended complaint and consolidation of this action with Resource Club's pending lawsuit.
The trial court considered the motions on October 10, 2008, and filed a written opinion dated October 21, 2008. The court determined that plaintiff failed to state claims upon which relief can be granted. The court further determined that plaintiff's fraud claims against both defendants failed because they had not been pled with sufficient specificity, as required by Rule 4:5-8(a). In addition, the court denied plaintiff's motion for leave to file a second amended complaint because assertion of the claims would be futile. The court ...