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Map Investment Company v. Liberty Elevator Corporation and Jersey Central Power & Light Company

December 8, 2010

MAP INVESTMENT COMPANY, PLAINTIFF-APPELLANT,
v.
LIBERTY ELEVATOR CORPORATION AND JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3134-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2010

Before Judges Lisa, Reisner and Alvarez.

Plaintiff Map Investment Company appeals from a November 5, 2009 order dismissing its complaint against defendants Liberty Elevator Corporation (Liberty) and Jersey Central Power & Light Company (JCP&L). We affirm.

I

Plaintiff, the owner of a commercial building in Springfield, New Jersey, sued Liberty and JCP&L, contending that defendants' negligence was responsible for two fires in one of the building's elevators. Plaintiff alleged that Liberty, with which it had a maintenance contract, negligently installed fuses in the elevator, and that JCP&L negligently supplied "too many volts" of electricity to the building.

The record concerning the fires is limited to the following information culled from reports prepared by plaintiff's own in-house maintenance staff and reports from the local fire department. On December 20, 2007, smoke was reported in the #2 elevator's control motor. When the fire department arrived, there was no fire, but smoke remained in the building. According to a December 2007 report made by Map personnel, there was a "possible fire" in the elevator. The report noted: "The building elevator contractor responded and found the motor to be faulty. A new motor was installed the following week and was covered under the maintenance contract." The Springfield Township Fire Department reported that "an overheated elevator motor" caused the smoke.

A fire was reported in the same elevator on January 17, 2008. A project status report for that month, prepared by Map personnel, stated that "[t]he fire was caused by the pump unit from elevator #2." The Fire Department determined that "an overheated elevator motor" caused a "moderate smoke condition" in the building. After obtaining bids from several contractors, plaintiff authorized a third party elevator contractor, Federal Elevator, to "replace the motor and pump unit with a new unit that will be the start of a complete overhaul of both cars mechanical and electrical components."

There was no evidence concerning the type of electrical service JCP&L provided to the building, nor was there any evidence that incorrect voltage was provided.

The complaint was filed on July 30, 2008, and the case was assigned a 150-day discovery schedule. After the case had been pending for more than a year, and the court had granted one discovery extension upon JCP&L's motion, plaintiff had yet to take a single deposition or retain an expert witness on the negligence issues.

Approximately ten months into the discovery period, plaintiff terminated its relationship with its original counsel and retained new counsel. The new counsel did not conduct any additional discovery, although counsel made several motions to the trial court judge to extend the discovery period. Liberty also made two requests to extend the discovery period. All of those motions were denied because the parties did not establish "exceptional circumstances" for their failure to complete discovery earlier.

Both defendants moved for summary judgment. Prior to the scheduled oral argument but after the filing of the summary judgment motions, plaintiff filed another motion seeking a discovery extension in order to conduct fact depositions and retain an expert. That motion was calendared for a date two weeks after oral argument on the summary judgment motions, and plaintiff requested that the trial court adjourn the summary judgment motions so they could be considered simultaneously with its motion for a discovery extension.

Judge Graziano declined to grant the adjournment, and instead granted summary judgment to both defendants. In an oral opinion issued on November 5, 2009, the judge reasoned that plaintiff failed to produce legally competent evidence regarding defendants' alleged breach of duty and ...


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