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

March 21, 2011

H. SCOTT GURVEY AND AMY R. GURVEY, PLAINTIFFS,
v.
FIXZIT NATIONAL INSTALL SERVICES, INC., STEVE LEVI, JOSEPH M. RUTKOSKI, SR., JIM LAMBERTI HEATING, ELECTRICAL & AIR CONDITIONING, JIM LAMBERTI AND DOES 1-X INCLUSIVE, DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

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 the 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.

Most of the original Defendants to this action have either settled, declared bankruptcy, or both. On February 8, 2011, the Court denied Plaintiffs' motion for summary judgment against Jim Lamberti and Jim Lamberti Heating, Electrical & Air Conditioning (the "Lamberti Defendants"), the last remaining Defendants to this action. The Court granted summary judgment in favor of the Lamberti Defendants.

Presently before the court is Plaintiffs' motion for reconsideration of the February 8, 2011 decision. For the reasons set forth below, Plaintiffs' motion is DENIED.

I. BACKGROUND

The details of this dispute are familiar to the parties and set forth in this Court's summary judgment opinion. ("Feb 2011 Op.") (Doc. No. 92). The relevant facts are as follows.

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. MSJ. Ex. 1). The contract was negotiated by Defendant Joseph Rutkoski, who was a Fixzit employee. (Def. MSJ. Ex. D, 18:16-19:8). The equipment was installed that summer, and 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. MSJ. Ex. C, 34:17-21). Plaintiffs began to notice problems almost immediately, complaining that the upstairs air conditioning unit did not provide adequate cooling to the home and that the location and design of the duct work rendered their family room unusable. Id. at 37:9-41:22.

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 Defendant Rutkoski. (Def. MSJ. Ex. H ¶¶ 4-5). Lamberti determined that the "superheat level" of the upstairs unit was below manufacturer's specifications and added some refrigerant to correct the problem. Id. He also suggested that insulation be added to the attic and that the fan on the system be run in "continuous mode." Id. Lamberti did no other work on the air conditioners and never again had contact with the Plaintiffs home. His total bill for all work related to the Gurvey house was $275.00. Id.

The problems persisted, and a whole host of technicians and repairmen visited the home to examine the system. In May of 2003, a Mr. Sorokin from Northeast HVAC, Inc. advised Plaintiffs that their cooling problems were due to the failure of a piston. (Complaint Ex. 6). The same month, Carl Zacharella of Air Group Heating and Air Conditioning, Co. conducted an independent evaluation. Zacharella concluded that the upstairs duct system was "so poorly designed" that he had "no way of knowing if the equipment works properly.." (Complaint Ex. 8).

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. MSJ. 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.

For a year, Plaintiffs engaged in a bitter letter-writing campaign with Fixzit in an effort to have the air conditioning system repaired. After first blaming the subcontractor who installed the equipment (Complaint Ex. 13), Fixzit ultimately accepted responsibility for the improperly sized ductwork. (Complaint Ex. 16). However Fixzit also informed the Plaintiffs that it had declared bankruptcy and would not compensate them for the damages to their house. Id. Plaintiffs ultimately settled with Fixzit for the amount of $15,134.47. (Def. MSJ. Ex. E). Plaintiffs also attempted to pursue their claims against Rutkoski and Fixzit employee Steve Levi individually but the claims were discharged in bankruptcy proceedings. (Def. MSJ. Ex. F).

Plaintiffs moved for summary judgment against the Lamberti Defendants, but offered essentially nothing by way of evidence against them. (Doc. No. 70). Plaintiffs' "expert report" from Zacharella, which was not attached to their motion, only confirmed that the problems with the Gurvey home were not caused by the Lamberti Defendants, stating that the air conditioning system malfunctions were due to improper sizing of the ducts and defective installation of the air handler without proper safety controls. (Def. MSJ. Ex. K). Zacharella recommended replacing the air handler and ductwork. Id. Rather than provide evidence supporting their claims, Plantiffs argued that they were entitled ...


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