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Winters v. Gold Parc Condominium Association

October 14, 2010


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4895-07.

Per curiam.


Argued September 28, 2010

Before Judges Yannotti and Espinosa.

Plaintiffs Jo Dee Winters and Amit Levitin appeal from a final order that dismissed their complaint against defendants Gold Parc Condominium Association, Inc. (Gold Parc), Arthur Edwards, Inc. (Arthur Edwards), the manager and agent of the condominium association, and members of the board of the condominium association (the board), with prejudice. We affirm.

Plaintiffs, who resided in a condominium unit at Gold Parc, alleged that Gold Parc failed to repair a leak in the roof and cracks in the exterior walls of the building that caused flooding in their unit when it rained. They commissioned Microbiological Air Safety Laboratories, Inc. (M.A.S. Labs) to test the unit for mold contamination in July 2007. In August 2007, plaintiffs formally notified Gold Parc management of the problems and moved out of the unit pursuant to advice given by Winters's physician. Plaintiffs allege that defendants had been generally aware of the water problems since November 2006 and "flatly refused" to make necessary repairs.

In October 2007, plaintiffs filed a complaint against defendants, Gold Parc and Arthur Edwards, seeking a declaratory judgment that defendants had breached their contractual duties to plaintiffs, specific performance of repairs, and compensatory damages. In an amended complaint, they added four members of the board as defendants and a claim for breach of fiduciary duty.

The discovery period was extended twice, resulting in a fifteen-month discovery period. By order dated November 21, 2008, the trial court set a discovery end date of February 27, 2009, and a trial date of March 30, 2009.

On or about January 30, 2008, defendants served interrogatories upon plaintiffs. Interrogatory No. 8a requested the following:

Set forth in detail and itemize all damages you allege are a result of Leaks, Mold, Mold Remediation, Improvements, or Damages, which form the basis of the Complaint. Set forth in detail the basis for your answer to this Interrogatory and provide all documents upon which you relied relative to same.

Plaintiffs responded to this interrogatory on April 15, 2008, by providing three Bates-stamped documents and stating, "Plaintiffs will supplement this response with additional responsive documents." Plaintiffs did not provide any additional responsive documents until February 26, 2009, one day before the close of discovery. Defendants received by overnight courier a package of documents that represented plaintiffs' out-of-pocket expenses after they moved out of the condominium unit.*fn1

Another package of documents arrived thereafter via first class mail, with an enclosure letter dated February 26 explaining that the second set of documents were "inadvertently" omitted from the first package. In sum, these documents totaled approximately 2000 pages.

Interrogatories No. 14, 15 and 16 asked plaintiffs for the disclosure of experts and expert reports. Plaintiffs responded, in part, "To the extent that this Interrogatory [No. 14] seeks disclosures relating to a testifying expert, Plaintiff has not retained any testifying experts. Plaintiff's unit has been tested for mold. See the documents Bates Numbered WINTERS373-386." The Bates Numbered document referred to is the M.A.S. Labs mold inspection report prepared for plaintiffs. Although an order dated June 20, 2008, required the production of all expert reports by August 15, 2008, plaintiffs never identified this as an expert report or provided any other expert report to defendants in support of their claim. In fact, an order dated October 10, 2008, denied a defense motion to bar expert testimony as moot, noting, "Plaintiffs have represented that they do not intend to call any testifying experts on their case in chief at the trial of this matter."

During the month of February 2009, before the delivery of the additional responsive documents, the parties agreed that the depositions of the plaintiffs could be taken after the close of discovery because Winters would be undergoing medical treatment during the last week of the ...

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