SRC CONSTRUCTION CORP. OF MONROE, Plaintiff,
ATLANTIC CITY HOUSING AUTHORITY, et al., Defendants.
CONDON & ASSOCIATES, PLLC, Brian K. Condon, Esq., Nanuet, New York, Counsel for Plaintiff SRC Construction Corp. of Monroe.
PARKER McCAY PA, Richard W. Hunt, Esq., Marlton, New Jersey, Counsel for Defendant Atlantic City Housing Authority.
SUAREZ & SUAREZ, Joseph M. Suarez, Esq., Jersey City, New Jersey, Counsel for Defendant Lindemon, Winckelmann, Deupree, Martin, Russell & Associates, P.C.
JOSEPH E. IRENAS, Senior District Judge.
In this diversity suit, the parties dispute who is responsible for the extended delays that occurred during the construction of an assisted living facility in Atlantic City, New Jersey, which resulted in over three million dollars in additional costs. Defendant Lindenmon, Winckelmann, Deupree, Martin, Russell & Associates, P.C. ("Lindemon") presently moves for summary judgment, asserting that all of Plaintiff SRC Construction's claims against it are barred by New Jersey's Affidavit of Merit Statute. Similarly, Defendant Atlantic City Housing Authority ("ACHA") moves for summary judgment on all of SRC Construction's claims against it, arguing that because Lindemon cannot be liable to SRC Construction, ACHA also cannot be liable to SRC Construction. For the reasons stated herein, Lindemon's Motion will be granted and ACHA's Motion will be denied.
This is the third written opinion in this case. Accordingly, the Court presumes some familiarity with the previous opinions and the parties' disputes in this case. See SRC Construction Corp. of Monroe v. Atlantic City Housing Authority, et al., 2011 WL 1375680 (D.N.J. April 12, 2011); SRC Construction Corp. of Monroe v. Atlantic City Housing Authority, et al., 935 F.Supp.2d 796 (D.N.J. 2013). Plaintiff SRC Construction was the general contractor for the John P. Whittington Senior Living Center project in Atlantic City, Lindemon was the project architect, and ACHA is the property owner. It appears from the record that the largest delays occurred as the result of a prolonged permit approval process before the Atlantic City Division of Construction (244 days); "first floor plank design delay" (8 weeks); "Building Department field correction delay" (135 days); and "change order delays" (30 months). (Plaintiff's Ex. D) SRC Construction argues that Lindemon's negligence caused these delays and that ACHA breached its contract with SRC Construction when it refused to extend the project completion deadlines.
The pending summary judgment motions are basically "round two" on an issue that this Court addressed in its Opinion granting in part and denying in part Lindemon's Motion to Dismiss. See 2011 WL 1375680 (D.N.J. April 12, 2011). Relying on the undisputed fact that SRC had not obtained an affidavit of merit as required by New Jersey statute, Lindemon argued that all of SRC's claims should be dismissed. The Court held that: (1) the affidavit of merit statute applies to all of SRC's claims against Lindemon; (2) some of those claims clearly allege professional architectural negligence, proof of which would require expert testimony and are therefore barred by the affidavit of merit statute; but (3) some claims might not be barred because they might fall within the "common knowledge exception" to the affidavit of merit requirement. Most relevantly, the Court stated,
At least at this stage of the litigation, some of SRC Construction's factual allegations do not appear to require proof by expert testimony. For example, Lindemon's alleged fail[ure] to provide the necessary building permits to SRC, ' (Compl. ¶ 29), and submitt[ing] drawings on multiple occasions to the Building Department that were deemed Non-Code Compliant' (Compl. ¶ 118(i)), will not necessarily require expert testimony. A layperson could understand that simply failing to provide a building permit, or submitting drawings that were deemed non-code compliant by a thirdparty, could cause delays that allegedly resulted in higher costs for the project.
Similarly, depending on why the alleged verbal approvals of change orders' were defective' (Compl. ¶ 118(iv)), expert testimony may not be necessary. For example, if the defect were nothing more than the inclusion of plainly erroneous information, such as an incorrect quantity of a particular material, expert testimony would not be needed.
Lastly, while Lindemon argues that SRC Construction will need an expert to establish whether or not Lindemon responded to requests for information in a timely manner, ' (Compl. ¶ 118(iii)), the Court cannot reach that conclusion on the present record. Discovery may produce facts demonstrating such extensive delays that even a layperson could find them unreasonable. Thus, for example, while expert testimony might be necessary to establish the timeliness of a two week delay in responding to a certain request, such testimony might not be necessary to establish the untimeliness of a 599day delay when the entire project was expected to be completed in approximately 600 days.
Id. at 17-18 (italics added). In partially denying Lindemon's Motion to Dismiss based on the potential applicability of the common knowledge exception, the Court explicitly stated, however, that "[i]f... discovery demonstrates that establishing any of the remaining claims [against Lindemon] will require expert testimony- indeed, if SRC Construction seeks to use an expert for such purpose- such claim or claims would be subject to dismissal on summary judgment." Id. at n. 10.
"Under Rule 56(c), summary judgment is proper if 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 and that the moving party is entitled to a judgment as a matter of law.'" ...