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Leda Puhlovsky v. Rutgers Casualty Insurance Company

September 7, 2012

LEDA PUHLOVSKY, PLAINTIFF-APPELLANT,
v.
RUTGERS CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8037-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Yannotti, Espinosa and Kennedy.

Plaintiff Leda Puhlovsky appeals from a January 28, 2011 order of the Law Division granting summary judgment to defendant Rutgers Casualty Insurance Company (Rutgers) and dismissing her complaint for insurance coverage. Plaintiff also appeals from a May 23, 2011 order denying her motion for reconsideration. We reverse and remand for further proceedings.

I

In deciding this appeal, we utilize the same standard, set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As the Court stated in Brill, "a determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to 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 factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citation omitted).*fn1

We discern the facts from the record, giving plaintiff the benefit of all favorable inferences. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010). We owe no deference to the motion judge's conclusions on issues of law. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006)

A.

The Property and the Claim

Plaintiff owned a four-story building at 69 Market Street in Paterson. Erected prior to 1900, the building had two retail stores on the first floor and a number of residential apartments on the upper three floors. In late March of 2008, a wood frame building at 67 Market Street, which was adjacent to the west side of plaintiff's building, partially collapsed into a schoolyard that was situated to the west of 67 Market Street.

Paterson officials determined that sections of 67 Market Street that remained standing were nonetheless bulging, and ordered demolition of the entire building. The demolition contractor pulled down the remaining sections of that building utilizing a mechanical excavator with a pincer attachment.

Between March 28, 2008, and April 1, 2008, the demolition contractor was at the site removing debris that had accumulated during the demolition process. The basement at 67 Market Street was also filled with quarry-processed stone in order to "prevent undermining of the foundation" of plaintiff's building.

Plaintiff's building was constructed of brick, and its western brick wall was built into the wood frame of the building at 67 Market Street, creating a common wall between them. Plaintiff's expert has stated that some of the horizontal timber supporting beams on the upper floors of plaintiff's building also extended "through the common wall" into the interior of the building at 67 Market Street, where they were supported "by an interior longitudinal load bearing masonry wall."

On April 1, 2008, John Dalessio, P.E., Paterson's municipal engineer, and Sal Ianelli, the municipality's construction code official, inspected plaintiff's building to determine "if the building is safe to occupy." In a letter to Iannelli the next day, Dalessio stated, in part,

During the removal of the building at 67 Market Street, it was found that there are unsafe conditions along the common wall between the building at 67 Market Street and the building at 69 Market Street. These conditions render the building unsafe to occupy. At this time the building is in equilibrium and stable. However, a change in condition may cause a collapse. Therefore, the occupants should be directed to vacate the building until such time that the owner can render the building safe to occupy.

Plaintiff apparently notified Rutgers at this time that she would be making a claim under the "Commercial Package Policy" Rutgers had issued for the property on Market Street.

Rutgers retained Andrew Sharick, P.E., to examine the building. In his initial report of April 3, 2008, Sharick stated he had visited the site that day. He opined that "[o]ver the years, the front wall has bowed outward at the center of the building height" and that there was also a "gradual separation between the front and the side walls" on the west side of the building above what had been the roofline of 67 Market Street. He added that after the demolition, the separation had increased by an additional half-inch.

Sharick stated that the building is "sufficiently stable" to permit reopening the street "for a few days until either [the building] is demolished or its front wall is braced . . . ." He also explained that "most of the total movement in the front wall at the front left corner of the building has developed gradually over decades[.]"

In a written report also issued on April 3, 2008, Dalessio advised plaintiff that she had two options: remove or repair the building because "this building is unsafe." He explained that "there has been movement [in the building] over the years" and that, The removal of the building at 67 Market Street exposed deficiencies within the building at 69 Market Street. With the removal of the building, some of these deficiencies became unstable . . . . With this recent movement and change of condition of the left side wall, the building is not safe to occupy . . . . While it is possible in theory to undertake a repair of this building, the instability of the structure renders it impractical . . . . [I]t is recommended that the existing building be removed in its entirety and reconstructed according to current building code requirements.

On April 10, 2008, Iannelli issued to plaintiff a "notice of imminent hazard" requiring her to "immediately correct" the hazards and render the building "temporarily safe and secure", or "demolish" the building by April 13, 2008.

Plaintiff elected to demolish the building, given the "high cost of repair." In a second report dated April 20, 2008, Sharick stated his inspection of the site on April 3, 2008, showed "no indication of movement or damage" to plaintiff's building as a result of the demolition of the building at 67 Market Street, and he opined that "there had been no vehicle or ...


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