On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7814-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Haas.
Plaintiff appeals from a May 27, 2011 order granting defendant's motion for summary judgment. We affirm.
On July 17, 2007, Ricardo Diaz purchased a used 2006 Ford Freestar from Elite Ford in Belleville. Diaz insured the vehicle with a policy issued by plaintiff. On October 29, 2009, the vehicle "burst into flames and was destroyed" while parked in front of Diaz's home. The vehicle was declared a "total loss" and plaintiff paid Diaz $14,747.45 under the insurance policy.
On September 17, 2010, plaintiff, as Diaz's subrogee, filed a lawsuit against defendant alleging negligence (count one), breach of warranty (count two), and strict liability (count three). On October 26, 2010, defendant filed an answer, which included a statute of limitations defense to plaintiff's breach of warranty claim.
On April 21, 2011, defendant filed a notice of motion for summary judgment returnable May 27, 2011. In a supporting certification, defendant's attorney stated that defendant sold the vehicle to the original owner on August 25, 2005, and therefore, "any claims based upon breach of warranty are precluded by the four (4) year statute of limitations contained in N.J.S.A. 12A:2-725, which expired on August 26, 2009." Defendant's attorney also stated that "tort remedies are not available to the plaintiff pursuant to the Economic Loss Doctrine." Attached to defendant's letter memorandum in support of its motion for summary judgment was a one-page excerpt from its answers to plaintiff's interrogatories, which stated that after the vehicle was manufactured, it "was sold to Stillwater Ford Lincoln Mercury on or around August 25, 2005, and shipped to Avis RAC-Manchester."
On May 27, 2011, the trial court heard argument on defendant's summary judgment motion. During oral argument, defendant's counsel provided the court with copies of the "warranty records" for a 2006 Ford Freestar with the same vehicle identification number as Diaz's vehicle, which defendant had provided to plaintiff on February 11, 2011, to "supplement" its answers to plaintiff's interrogatories. The records indicated that the vehicle's "warranty start date" was "08/25/2005."
The trial court stated that "based upon a review of the documents and the answers to interrogatories" it was "satisfied" that the original sale date of the vehicle was August 25, 2005. Therefore, the court concluded that because "the breach of warranty occurs when the tender of the delivery is made under [N.J.S.A. 12A:2-725(2)]," the statute of limitations began to run on August 25, 2005, and ended on August 26, 2009. In addition, the trial court stated that if plaintiff had wanted "to establish any type of question of fact, [it] could have taken a deposition of whoever certified the answers to interrogatories on behalf of Ford, but [it] did not do so." The court determined that it had "no choice but to grant [defendant]'s motion for summary judgment."
On appeal, plaintiff argues the trial court's decision was based on hearsay evidence and, therefore, must be reversed. After reviewing the record, we reject plaintiff's argument and affirm the trial court's grant of defendant's motion for summary judgment.
When reviewing an order for summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In support of its argument, plaintiff cites Rule 1:6-6, which states:
If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed ...