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Town of Kearny v. Louis F. Brandt

June 28, 2011

TOWN OF KEARNY, PLAINTIFF-RESPONDENT,
v.
LOUIS F. BRANDT, AIA, MICHAEL KUYBIDA, AIA, ROBERT STREBI, R.A., BRANDT-KUYBIDA ARCHITECTS, DEFENDANTS-APPELLANTS, AND JOHN N. HARRISON, P.E., HARRISON-HAMNETT, P.C., WILLIAM J. ST. PIERRE, P.E., SOILS ENGINEERING SERVICES, INC., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1777-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

This is an architectural malpractice case filed by the Town of Kearny concerning the design and construction of a Police and Fire Facility (the Facility) now condemned as unsafe. The architect-defendants*fn1 appeal from a judgment entered against them after a jury trial. The soils engineer*fn2 and structural engineer*fn3 obtained summary judgment before the judge conducted the trial. Because the judge precluded any apportionment of damages against the engineers, and erred by denying Brandt-Kuybida's request to adjourn the first-listed trial date, we reverse and remand for a new trial on liability.

The Town created the South Kearny Improvement Projects Corporation (SKIP) to oversee construction of the Facility. SKIP contracted with Brandt-Kuybida to design, plan and supervise the Facility's construction. The Town retained SESI, a geotechnical firm, to perform a subsurface investigation of the soil. SESI then issued to the Town a report containing recommendations for the Facility's foundation support system. SESI provided three options for the design and construction of the Facility's foundation. Before Brandt-Kuybida issued its final plans, it reviewed and considered SESI's report and recommendations.

Brandt-Kuybida retained and relied on the design services of its structural engineering consultant, Harrison-Hamnett. Harrison-Hamnett chose a pile foundation with a structural slab -- one of the three SESI options -- and provided plans that depicted piles under the garaged areas of the Facility. No piles were depicted under the office space of the building. Brandt-Kuybida accepted Harrison-Hamnett's plans and completed the final design of the Facility. Although SESI recommended that it review the final design "to determine if [its] . . . recommendations have been properly interpreted," SESI did not review the final design packet and was not present during the construction phase of the project.

SKIP retained Belcor Corporation, Inc. (Belcor) as the general contractor, and construction began in September of 1994. The construction of the Facility went smoothly without any major complications.

The structural integrity of the Facility deteriorated over time, however, as the building settled. The Town withheld finalpayment to Belcor because of a differential settlement in the floor slab of the building. In 1996, two subcontractors sued Belcor and the Town (the Belcor action) to collect monies for material provided on the project. The Town requested an adjournment of the Belcor action to investigate the cause of the differential settlement. After a motion judge denied that motion, the parties settled the Belcor action in 1999.

While the Belcor action was pending, a certificate of occupancy was issued, on April 9, 1996, for the police portion of the building. On April 7, 2006, two days shy of ten years, the Town filed the complaint. The Facility remains unoccupied.

A motion judge concluded that SESI and Harrison-Hamnett provided no services after July 31, 1990 and October 30, 1995, respectively. The judge recognized that the Town delayed the filing of the complaint, applied the Statute of Repose, and granted summary judgment in favor of SESI and Harrison-Hamnett dismissing all claims against them, including the cross-claims filed by Brandt-Kuybida. The judge denied Brandt-Kuybida's motion for summary judgment. He determined that the project was substantially complete on April 9, 1996, concluded that the Town's complaint was filed timely, and declined to dismiss the action pursuant to the entire controversy doctrine or laches.

We granted Brandt-Kuybida's motion for leave to appeal from the denial of its dispositive motion and summarily remanded for reconsideration in light of Daidone v. Butterick Bulkheading, 191 N.J. 557 (2007). On remand, the judge maintained that the complaint against Brandt-Kuybida was timely filed.

The Town then filed a motion to strike Brandt-Kuybida's affirmative defenses that sought an apportionment of damages against SESI, Harrison-Hamnett, and the Town. The judge granted the Town's motion and precluded any apportionment of liability at trial.

The Town served its expert reports two business days before the discovery end date. Brandt-Kuybida immediately filed a motion to extend discovery, with consent from the Town, to allow its own expert to respond. The motion was filed before the discovery end date expired, but after the first trial date of October 20, 2008 had been fixed. In the alternative, Brandt-Kuybida requested that the court bar the Town's experts' reports. A motion judge determined that exceptional circumstances ...


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