On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2526-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Sapp-Peterson and Ostrer.
Plaintiff, Alfred B. Abrams, appeals from the Law Division order granting summary judgment to defendants, 111 S. Cambridge Avenue, L.L.C. (Cambridge) and Michael Samschick (collectively referred to as defendants), and dismissing plaintiff's complaint in which plaintiff alleged that defendants' renovations, undertaken in a building adjacent to his condominium unit, caused his air conditioner and his building's elevator to malfunction, resulting in damages to plaintiff. We affirm.
Abrams is the owner of a condominium unit located at the Sands Condominiums (Sands) in Ventnor. Cambridge owns a multi-unit residential building commonly known as "The Cambridge House," located immediately adjacent to the Sands. Samschick is the principal member of Cambridge. In his complaint, plaintiff asserted claims of negligence, violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -84, and the False Claims Act, 31 U.S.C.A. §§ 3729-3731. In addition to compensatory damages, plaintiff also sought injunctive relief and punitive damages.
Defendants filed an answer denying plaintiff's allegations and instituted a third-party action against the Sands. Discovery ensued, during which depositions occurred.
When deposed, Samschick testified that after he purchased the Cambridge House, he noticed there were two separate transformers in his building's basement, one providing electricity to the Cambridge House and one providing electricity to the Sands. He anticipated that the planned renovations for the Cambridge House would require electrical upgrades and advised the Sands. He was also told by a "representative of the electric company that came out to look at [Cambridge House's] electric requirements" that the Sands would need to "either independently" or simultaneously upgrade its electrical system in order for the Cambridge House to upgrade its system. In May 2009, through emails from Bill Ollek, the Sands superintendent, Samschick became aware that the Sands was experiencing electrical problems. The Sands' electrical problems were resolved sometime in September of that year.
In his deposition testimony, Ollek explained that prior to renovations being undertaken at the Cambridge House, there was sufficient electrical power for the Sands. He expressed the opinion that Samschick "could have gotten off of those transformers and went on to a separate transformer anywhere else and [Sands] would have had the power supply needed."
Plaintiff was also deposed. He was eighty-six years old at the time his air conditioner and building elevator malfunctioned. His condominium unit is located on the second floor. Plaintiff testified that his air conditioner was an individual built-in unit, but he was unable to provide specific details regarding the air conditioner's malfunction, beyond testifying that when he turned it on, it did not work. Similarly, plaintiff testified that the elevator, which he believed was at least twenty-five years old or "maybe [fifty] years old," had malfunctioned prior to summer of 2009.
As a result of the malfunctioning air conditioner and elevator, plaintiff testified he was forced to use the stairs to gain access to his condominium unit, often carrying groceries. He also spent a number of nights at a casino hotel in order to obtain relief from the lack of air conditioning in his condominium. Although requested in interrogatories to identify the expert expected to testify regarding the causal connection between the renovations undertaken at the Cambridge House and the loss of electrical power in the Sands, plaintiff failed to name any such expert. Likewise, plaintiff failed to identify any expert expected to render an opinion as to the causal connection between plaintiff's claimed injuries and the malfunctioning of his air conditioner and building elevator. Finally, although plaintiff testified that during the period he was without air conditioning and the ability to use the building elevator, he lost income, he failed to produce documentation supporting his wage loss claim.
At the conclusion of discovery, defendants moved for summary judgment. Plaintiff filed two cross-motions. One motion sought partial summary judgment on the issue of liability and the other motion moved to strike defendants' answer for alleged discovery violations. In his brief in opposition to defendants' motion, plaintiff abandoned his claims arising under the False Claims Act. Additionally, plaintiff submitted no substantive opposition on the issue of punitive damages.
In granting summary judgment to defendants, Judge James E. Isman found plaintiff's contention that he suffered physical and mental anguish as a result of the lack of reliable electricity in his apartment to be unsupported by any expert report and testimony. The judge reasoned:
The ability of a lack of air conditioning and electricity to cause "mental anguish" is not within the common range of experience. . . . These claims, and their causation, are outside the realm of common experience and beyond the ken of the ...