On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-152-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
This appeal is from the dismissal of a third-party legal malpractice action filed by defendants/third-party plaintiffs, Elias M. and Issac H. Kafrouni, against third-party defendant,
A. William Sala, Jr. Sala represented the Kafrounis during the negotiation and performance of a contract to purchase commercial real estate from Robert and Francis Gitin. The Gitins, plaintiffs in the primary action, sued the Kafrounis for breach of contract. The Kafrounis and Sala are the only parties participating in this appeal.*fn1
One hundred and twenty-four days after filing his answer to the Kafrounis' third-party complaint, Sala moved to dismiss the third-party complaint because the Kafrounis did not comply with the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29. The Kafrounis filed a cross-motion asserting that an affidavit of merit was unnecessary because Sala's duty and breach were a matter of common knowledge and, in the alternative, seeking an extension of the statutory filing period. The trial court concluded that the alleged negligence was not a matter of common knowledge and that the Kafrounis had not shown extraordinary circumstances warranting an extension. Finding no error or abuse of discretion, we affirm.
Our statement of the pertinent facts is based on the pleadings and documents submitted on the motion and cross-motion. We have not considered additional materials improperly included in the record submitted on appeal without leave granted. See R. 2:5-4.
The commercial property at issue is located in the City of Passaic, and the Gitins used it as the site of operations for their printing business. The soil underneath the concrete on the property is contaminated. In 2006, the Kafrounis retained Sala to provide legal services related to their intended purchase of the property. They also retained Eikon Planning and Design, LLC (Eikon) to do environmental testing.
Months later, in January 2007, the Kafrounis and Gitins executed a contract of purchase and sale. Paragraph 16 of that contract requires the Kafrounis to accept the property subject to "recorded agreements" restricting use of the property, "unless the agreements . . . unreasonably limit the normal use of the property." In paragraph 17 of the contract, the Kafrounis reserved the right to cancel the contract if the Gitins failed to correct a title defect specified in paragraph 16 within thirty days of receiving notice of an objection from the Kafrounis. Paragraph 17 does not state a time within which the Kafrounis must give notice of an objection.
In May 2007, Eikon prepared documents for submission to the Department of Environmental Protection (DEP) reporting soil contamination and maps depicting the areas of this property covered by concrete. On June 6, 2007, DEP "approved a remedial action . . . such that soil contamination remains in certain areas of the Property which contains contaminants in concentrations that do not allow for the unrestricted use of the property." DEP determined that because of that contamination, a "deed notice" and "engineering controls" were required by N.J.S.A. 58:10B-13a. Subsequently the "deed notice" was prepared by Eikon, approved by DEP, signed by the Gitins on November 26, 2007, and recorded in the deed book by the Clerk of Passaic County on December 14, 2007. The clerk returned a copy reflecting the filing and recordation to Sala. With reference to a map prepared by Eikon, the deed notice identifies the restricted area of the property and describes the necessary "engineering control." The engineering control is described as follows:
The Restricted Area is currently capped with the existing structure constructed primarily slab on grade with a partial basement; the concrete measures approximately 4 to 6 inches in thickness. Based upon the analytical results for soil samples collected immediately adjacent to the building, the contaminant impacts occur at depths up to 6 to 7 feet below grade. The object of the engineering control is to prevent unobstructed access/exposure to underlying soil contaminants, in order to ensure that protectiveness of the public health and safety of the environment.
The deed notice obligates the owner to annually inspect and repair the concrete to maintain the integrity of this "engineering control" and to file biennial certifications.
On August 11, 2008, DEP issued a "Conditional No Further Action Letter and Covenant Not to Sue with Requirements for Biennial Certifications" (NFA). The NFA refers to the recorded deed notice prepared by Eikon, and it includes an explanation of the protections the NFA provides and the obligations it imposes. Those ...