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Dashi Slatina and Vjollca Slatina v. D. Construction Corp. and Armored

August 3, 2012

DASHI SLATINA AND VJOLLCA SLATINA, PLAINTIFFS-APPELLANTS,
v.
D. CONSTRUCTION CORP. AND ARMORED, INC., DEFENDANTS, AND NEWPORT ASSOCIATES DEVELOPMENT COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1182-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2012

Before Judges Sapp-Peterson and Ostrer.

Dashi Slatina suffered serious injuries when a masonry wall he was erecting toppled on him. He timely filed suit against Newport Associates Development Company (Newport), who he alleged was the owner and or general contractor. Over two years after the suit was filed, Newport obtained summary judgment dismissing the complaint with prejudice. Newport initially admitted in its answer to the complaint that it owned the property "at all relevant times" but in its summary judgment motion, Newport argued successfully it was not liable because it had sold the property the year before the accident to Shore Club North Urban Renewal Company, LLC (Shore North Urban), which hired Shore Club North Construction Company, LLC (Shore North Construction) to erect the building. Promptly after judgment, plaintiff moved to reinstate the complaint to enable him to amend it to add the actual owner and general contractor. Finding no basis to reconsider summary judgment under Rule 4:49-2, the court denied the motion to amend because the complaint remained dismissed.

Under the circumstances that we discuss below, we conclude justice demands that the judgment dismissing the complaint be vacated pursuant to Rule 4:50-1(f), for the purpose of enabling plaintiff to amend to add the actual owner and general contractor. We therefore reverse.

I.

This appeal requires us to consider the relationship of some of the business entities within what is known as the LeFrak Organization,*fn1 and to scrutinize the course of the litigation, and the manner in which it was disclosed that plaintiff brought suit against the wrong party as owner and general contractor.

It is undisputed that Slatina was injured on January 6, 2007, while working on a condominium construction project at One Shore Lane in Jersey City. He filed his complaint on March 3, 2008. In addition to naming his employer, D Construction Corp., he claimed negligence against Armored, Inc. (Armored), and Newport. He alleged Newport "owned, leased, maintained, managed, operated and/or controlled certain piece(s) of real property, located at 1 Shore Lane, Jersey City, New Jersey."

In its May 2008 answer, Newport denied that allegation "except admit[ed] that at all relevant times, the defendant NEWPORT ASSOCIATES DEVELOPMENT COMPANY, owned certain real property, located at 1 Shore Lane, Jersey City, New Jersey." In response to the allegation that "at all relevant times," both Newport and Armored "were under a duty to use care to properly maintain the premises in a safe and suitable condition and to inspect for any dangerous conditions on the premises[,]" Newport "denie[d] knowledge or information sufficient to form a belief" as to the allegation. Although Newport included among its defenses that plaintiff had failed to join indispensable parties, counsel certified, pursuant to Rule 4:5-1(b)(2), "no other party should be joined."

In its responses to Uniform Interrogatories - Form C, see Rule 4:17-1(b), Appendix II, served in January 2009, Newport did not contradict its original admission that it was the owner. In response to interrogatory 3, which seeks additional information about a third-party action, Newport referred to its defenses and cross-claims in its answer to the complaint. Newport also denied negligence, but did not address ownership. In response to interrogatory 4, which requests the identity of persons with knowledge of relevant facts, Newport referred to, among others, all persons or entities named in the parties' discovery, but did not expressly name the property owner or construction firm.

On the other hand, in its response to form interrogatory 13 requesting insurance information and copies of policies, Newport disclosed multiple insurance policies covering the project. Many policies with effective dates of May 2006 listed Shore North Urban and Shore North Construction as the only named insureds. However, a month after Slatina's injury, numerous endorsements were issued that added Newport as a named insured. In February 2007 endorsements, Shore North Urban was described as the sponsor, Shore North Construction was described as the general contractor, and Newport was included without further description.*fn2 The endorsements also added Shore Manager Corp. (Shore Manager), which was described as the corporate manager of Shore North Urban. In January 2008 endorsements, LeFrak Organization, Inc. was added as a named insured.

In D Construction's answers to Form C interrogatories, it included representatives of Newport among its list of persons with knowledge, but did not name Shore North Urban or Shore North Construction. The answers were certified by Carmen Rullo, vice-president.

Pursuant to a January 22, 2010 scheduling order, discovery was extended to May 15, 2010, depositions were to be completed by February 22, 2010, and liability expert reports were to be served by March 19, 2010 by plaintiff and April 23, ...


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