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Denegri v. Fassilis

August 11, 2010

MARISOL DENEGRI AND GRINILDA MARRERO, PLAINTIFFS-RESPONDENTS/CROSS-APPELLANTS,
v.
KIRIAKI FASSILIS AND GIKAS FASSILIS, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS, AND ESTRELLA PIEMONTESE AND NOAH BURSTEIN, ESQ., DEFENDANTS, AND NOAH BURSTEIN, ESQ., THIRD-PARTY PLAINTIFF,
v.
RC SEARCH COMPANY, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2336-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 14, 2010

Before Judges Cuff and Waugh.

Defendants Kiriaki Fassilis and Gikas Fassilis sold plaintiffs Marisol Denegri and Grinilda Marrero a house in Pompton Lakes. Plaintiffs claimed defendants falsely represented that the ground level of the house was habitable, and plaintiffs relied on this representation to buy the house. Defendants appeal from a money judgment entered following a jury trial, and a pre-trial order denying their motion to extend discovery. We affirm in part and reverse in part.

Plaintiffs are mother and daughter. They decided to purchase a house in which each family could live in separate living spaces. To this end, they retained a realtor, defendant Estrella Piemontese, to find a house for them to buy. Eventually, Piemontese showed them the house owned by the Fassilis defendants in Pompton Lakes.

The house owned by the Fassilis defendants had separate living quarters on the ground level and on the street level. Plaintiffs never learned the house was located in a flood plain or that the Fassilis defendants altered the house following construction and issuance of a certificate of occupancy to include living quarters at ground level. The Fassilis defendants also never informed plaintiffs that the stream encroachment permit issued by the New Jersey Department of Environmental Protection (NJDEP) prohibited habitation and the location of any structure at ground level.

In the course of several discussions with the Fassilis defendants, plaintiffs expressed their intention to have two families live in the house in separate areas. Plaintiffs asserted, and the trial court found, that defendants knew that plaintiffs intended to use the ground level of the house, and defendants represented to them that habitation on this level was permitted. Based on these representations, plaintiffs decided to purchase the Fassilis house for $600,000 and included the following language in the contract: "The lower level could be occupied by my near relative and/or mother as soon as possible." A rider to the contract also provided that "[s]eller shall obtain the [certificate of occupancy] and smoke and carbon monoxide certificates."

Plaintiffs retained defendant Noah Burstein to represent them in this purchase. He reviewed the contract and approved it. At no time during the negotiations or before closing did the Fassilis defendants advise plaintiffs that the ground level could not be occupied by Denegri's parents. The Fassilis defendants never informed plaintiffs that current use of the ground level as living space was unlawful or that an encumbrance existed that prevented use of the ground level as living space because the house was located in a flood plain. In fact, plaintiff Denegri testified that defendant Gikas Fassilis told her that the ground level never flooded. The transaction proceeded to closing without a certificate of occupancy. The inspection required to obtain the certificate would have revealed the unlawful use of the ground level and the ban on habitation on that level.

Three months after plaintiffs occupied the house, flood waters entered the lower level.*fn1 At that time, municipal officials informed plaintiffs that habitation of the ground level of the house was not permitted and that neither defendant Piemontese (the realtor) nor defendant Burstein (plaintiffs' lawyer) had obtained a certificate of occupancy.

In their May 31, 2006 complaint, plaintiffs sought compensatory and punitive damages against defendants Fassilis for breach of contract, fraud and equitable fraud. They also sought compensatory and punitive damages against their realtor for fraud and negligent misrepresentation, and against their attorney for professional negligence and negligent misrepresentation. Discovery proceeded and the court entered several discovery orders. On June 17, 2008, Burstein filed a motion to extend discovery until September 4, 2008. At that time the discovery deadline was July 6, 2008. Burstein argued that an extension was required because his malpractice carrier disclaimed coverage, his attorneys had withdrawn, and defendant Piemontese refused to attend scheduled depositions. The motion judge denied the motion even though no party opposed the contested relief. The Fassilis defendants filed a motion for reconsideration in which they emphasized that they had relied on Burstein to procure the expert to address plaintiffs' damages claim. The judge also denied this motion, and the matter proceeded to trial before another judge on October 23, 2008.

We review the decision to deny a discovery extension for abuse of the considerable discretion reposed in the civil presiding judge to manage the trial calendar. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded on other grounds, 185 N.J. 290 (2005); Serenity Contracting Group, Inc. v. Fort Lee, 306 N.J. Super. 151, 159 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998). The rules adopted ten years ago to manage the pre-trial process seek to strike a balance between thorough preparation of cases and timely disposition of cases. Huszar, supra, 375 N.J. Super. at 472; Zadigan v. Cole, 369 N.J. Super. 123, 130 (Law Div. 2004).

As a Track III case, the parties had 450 days to complete discovery. R. 4:24-1(a). The party seeking the extension is required to demonstrate good cause but must append all prior orders permitting or denying an extension of discovery. R. 4:24-1(c). Here, two prior orders had been entered extending discovery. In written comments on the July 3, 2008 order denying the extension sought by Burstein, the motion judge wrote "good cause not demonstrated why [indecipherable] 661 days of discovery on a Track III case." In his August 15, 2008 order denying the motion for reconsideration, the judge wrote

Application is denied. Defendant cannot sit back and assume a co-defendant will provide an expert that will appear on the defendant[']s as well as co-defendant's behalf. Exceptional circumstances [have] not [been] demonstrated. Reconsideration is saved for those cases in which either the court has expressed a decision on a palpably incorrect basis or the court did not consider the significance of competent evidence[.] It also should be noted there are crossclaims filed by the ...


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