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Park East Terrace Cooperative Apartments, Inc. v. Lan Associates

Superior Court of New Jersey, Appellate Division

August 27, 2013

PARK EAST TERRACE COOPERATIVE APARTMENTS, INC., Plaintiff-Appellant,
v.
LAN ASSOCIATES, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2013

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1410-10.

Scott B. Piekarsky argued the cause for appellant (Piekarsky & Associates, LLC, attorneys; Mr. Piekarsky, of counsel; Mr. Piekarsky and Mark R. Rafo, on the briefs).

Joseph M. Suarez argued the cause for respondent (Suarez & Suarez, attorneys; Mr. Suarez, of counsel; Anazette W. Ray, on the brief).

Before Judges Graves, Ashrafi and Espinosa.

PER CURIAM.

Plaintiff Park East Terrace Cooperative Apartments, Inc. (Park East), filed a complaint against defendant LAN Associates (LAN) in March 2010, alleging breach of contract and negligence based upon LAN's failure to discover the existence of an underground storage tank in 1994 and "abandonment" of the project. Park East appeals from an order that granted summary judgment to LAN on statute of limitations grounds and failure of proof as to damages.[1] Because we conclude that Park East's claims were time-barred, we affirm and need not address its arguments regarding damages.

Park East is a cooperative residential housing association for a seven-building apartment complex in Paterson. In the summer of 1993, Park East discovered oil seeping through the boiler room floor in one of its apartment buildings, Building #6. An investigation conducted by Recon Environmental Systems (Recon) determined that the source of the seeping fuel oil was the #6 underground fuel oil storage tank (the #6 tank), which was believed to have been removed and replaced by the #2 underground fuel oil tank (the #2 tank) in 1970. Recon reported the contamination to the New Jersey Department of Environmental Protection (DEP). Park East then retained LAN to conduct a remedial investigation.

LAN submitted a proposal to Park East for three identified tasks in October 1993. The first task was to perform soil borings and collect samples to determine the extent of the seepage and whether there was groundwater contamination. The second task was to submit a remediation plan with recommendations to DEP based upon this investigation. In describing this task, LAN noted the need for further investigation regarding the underground tanks:

With regard to the underground tanks, the history of the #6 fuel oil tank must be further investigated. If this tank is determined to be the source of the contamination, its disposition must be documented to [DEP]. Based on our inspection of the site, no evidence of the tank remains. It is not known if the tank was abandoned in place or removed when the #2 fuel oil tank was installed. LAN Associates will attempt to document the disposition of this tank by investigating city building records and interviewing tenants.

[(Emphasis added).]

The third identified task concerned the #2 tank. LAN noted that it was more than twenty years old, "the expected useful life for an underground steel storage tank." Because testing would be costly and would "most likely result in an indication that a leak is present[, ]" LAN recommended its removal. LAN's proposal further stated that, upon completion of the project, it would file a report with DEP.

Park East authorized LAN to perform the first two proposed tasks, but not the third. Accordingly, the #2 tank was left undisturbed. As it turned out, documentation of the removal of the #6 tank could not be located and, in fact, it had been abandoned in place when the #2 tank was installed more than twenty years earlier. It was only when the #2 tank was removed some time later that the #6 tank was discovered.

Despite the language in LAN's proposal regarding the third task, Park East claims that it declined to approve this task because LAN "submitted in writing on multiple occasions that there was not another tank requiring removal at the site." ...


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