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H. Scott Gurvey and Amy R. Gurvey v. Fixzit National Install Services

February 8, 2011


The opinion of the court was delivered by: Debevoise, Senior District Judge



This dispute arises over the defective design and installation of an air conditioning system. Plaintiffs H. Scott Gurvey and Amy Gurvey have brought suit against all parties involved in installing and servicing air conditioners in their Upper Montclair New Jersey home. Plaintiffs allege that leaks from a defective air conditioning system have caused extensive water damage to their house and led to a worsening of Plaintiff Amy Gurvey's pre-existing medical problems. Plaintiffs seek damages and specific performance under their breach of contract, fraudulent inducement and negligence claims.

Presently before the court are motions for summary judgment filed by the Gurvey Plaintiffs and Defendants Jim Lamberti and Jim Lamberti Heating, Electrical & Air Conditioning (the "Lamberti Defendants"). For the reasons set forth below, Plaintiffs' motion is DENIED. The Lamberti Defendants' motion is GRANTED.


The essential chronology of this case is not in dispute. In the spring of 2002, Plaintiffs contracted with Defendant, Fixzit National Install Services (hereinafter "Fixzit") to install an air conditioning system in their home. (Pl. Ex. 1). The contract was negotiated by Defendant Joseph Rutkoski, who at the time was the General Manager for Fixzit's operations in Pennsylvania and had responsibility for projects undertaken in New Jersey. (Def. Ex. D, 18:16-19:8). The system was designed by Rutkoski, but installed in the summer of 2002 by a subcontractor named Paul Hanley. (Def. Ex. G, 37:4-7). The air conditioning system included two air conditioning units, one in the basement and one in the attic, as well as air filters, fan units, ductwork, refrigerant lines, and other components designed to collectively cool and filter the air in the house. (Def. Ex. C, 34:17-22).

Plaintiffs began to notice problems with the upstairs air conditioning unit almost immediately after moving into their home in the summer of 2002. (Def. FOF. 7). In their correspondence with Fixzit, Plaintiffs complained that the upstairs unit did not provide adequate cooling to the home and the location and design of the duct work rendered their family room unusable. (Def. Ex. C, 37:9-41:22). Plaintiffs further reported that duct work prevented the door to the furnace room in the basement from closing, causing fumes to leak. Id. Throughout the summer and fall, Plaintiffs had repeated conversations with Defendant Steve Levi, another employee of Fixzit, and the home was repeatedly visited by Rutkoski. Id. at 45:1-16.

On July 29, 2002, Fixzit wrote to Plaintiffs admitting that the upstairs unit was improperly sized. (Complaint Ex. 4) (Doc No. 1). Fixzit and/or Rutkoski further represented to Plaintiffs that they would repair the refrigerant lines in the upstairs unit and ultimately replaced at least one of the lines. Id. However the problems persisted.

In September of 2002, Defendant Fixzit hired Defendant Lamberti to inspect the Plaintiffs' air conditioning units and determine if they were working properly. (Complaint Ex. 5). He made one visit to Plaintiffs' house to check the units, during which he was accompanied by Rutkoski. (Def. Ex. H ¶¶ 4-5). When Lamberti and Rutkoski were at Plaintiffs' house, Lamberti checked the "superheat level" of the upstairs unit, which he determined was below manufacturer's specifications. Id. He added four pounds of refrigerant to correct the problem and concluded that both air conditioning units were functioning within the manufacturer's ranges on that day. Id. Lamberti did not observe any leaks or ice accumulation. Id.

Lamberti suggested to Plaintiffs that they add insulation to the attic and kneewall areas, keep certain access doors closed and run the fan on the system in "continuous mode." (Complaint Ex. 5). The invoice for the job to Fixzit was for $275.00. Id. On October 18, 2002, Plaintiffs were provided with a copy of Lamberti's invoice and his suggestions by Rutkoski. (Def. Ex. C, 56:1-25).

The problems persisted. In May of 2003, Fixzit sent a Mr. Sorokin from Northeast HVAC, Inc. to Plaintiffs' house, who advised Plaintiffs that their cooling problems were due to the failure of a piston. (Complaint Ex. 6). On May 13, 2003, Plaintiffs received a letter from Fixzit admitting that Fixzit had neglected to install a proper piston in the system. (Complaint Ex. 7). The letter recommended that Plaintiffs add insulation to the second floor. Id. However even when the piston was replaced, the upstairs unit still continued to provide inadequate cooling. The same month, Plaintiffs contacted Carl Zacharella of Air Group Heating and Air Conditioning, Co. to evaluate the system. (Complaint Ex. 8). Zacharella concluded that the upstairs duct system was "so poorly designed" that he had "no way of knowing if the equipment works properly.."

In the summer of 2004, water began to drip from the ceiling in Plaintiffs' master bedroom. Plaintiffs determined that the upstairs air conditioning unit had frozen solid and shut down after encasing itself in ice. (Def. Ex. C, 74:7-75:6). Once the unit shut down, the ice melted, overflowing the drip tray and spilling out onto the attic floor. Id. In August of 2004 Plaintiffs arranged for a PSE&G technician to come to their home and diagnose the problem with the upstairs unit. Id. at 77:11-16. The technician advised Plaintiffs that the air conditioner had frozen due to problems with the piston. Id.

On August 23, 2004, plaintiffs wrote to Fixzit, Sorokin and the manufacturer of the system, Goodman Manufacturing, detailing the findings of the PSE&G technician. (Complaint Ex. 9). In response Fixzit sent a replacement piston. In September of 2004, Goodman Manufacturing sent Hanover Mechanical to inspect the units. (Def. Ex. C, 84:11-86:3). The Hanover technician added coolant, cleaned filters and adjusted the piston, but advised that since it was the end of the cooling season no further work could be done. Id.

In June of 2005, Plaintiffs wrote again to Fixzit and Goodman Manufacturing about the problems with the unit. (Complaint Ex. 10). Goodman put Plaintiffs in touch with System One Heating and Air Conditioning, who came to inspect the unit. (Def. Ex. C, 88:7-18). The technician, John Guerrero determined that the duct work had been improperly sized and was inadequate for the cooling demand. Id. at 89:14-90:8. He further determined that only one of the ...

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