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Akhtar v. JDN Properties at Florham Park, L.L.C.

Superior Court of New Jersey, Appellate Division

February 24, 2015

DR. HUMAYUN AKHTAR and YOSARIA AKHTAR, Plaintiffs-Appellants,

Argued: January 6, 2015.

Approved for Publication February 24, 2015.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. Docket No. L-1701-07.

Jay J. Rice argued the cause for appellants ( Nagel Rice, L.L.P., attorneys; Mr. Rice, of counsel and on the brief; Randee M. Matloff, on the brief).

Walter Kawalec argued the cause for respondent Casey & Keller ( Marshall Dennehey Warner Coleman & Goggin, attorneys; Andrew S. Cimino, of counsel and on the brief).

Before Judges KOBLITZ, HAAS and HIGBEE. The opinion of the court was delivered by KOBLITZ, J.A.D.


Page 229

[439 N.J.Super. 393] KOBLITZ, J.A.D.

Plaintiffs, Dr. Humayun Akhtar and his wife, Yosaria, appeal from a jury verdict dismissing their malpractice claims against defendant,[1] engineering firm Casey & Keller, Inc. A judge initially awarded plaintiffs summary judgment on liability, but a second judge reconsidered and vacated the grant of summary judgment. A third judge held a full trial, which yielded a no-cause jury verdict. Plaintiffs maintain that they were entitled to summary judgment as a matter of law, or at least a new trial, because their expert's opinion was unrebutted by defendant's expert. In light of [439 N.J.Super. 394] plaintiffs' burden of proof and the conflicting evidence as to the factual predicates for their expert's opinion, we affirm.


As developer JDN Properties at Florham Park, L.L.C., (JDN FP), was planning a ten-lot project on a set of steep properties, its manager, Randy DeLuca, engaged engineer Michael Lanzafama's firm, Casey & Keller, Inc. Lanzafama's firm was to perform title, topographic, and utilities surveys, prepare designs for a road and other infrastructure for the project, and submit those documents for approval from the appropriate government agencies. In the course of that work, Lanzafama drafted an individual lot grading plan for what would become plaintiffs' property, depicting two semi-circular Allan Block retaining walls and incorporating the manufacturer's specifications. The grading plan was filed with the municipality in conjunction with the property's site plan and approved by borough engineer Robert Kirkpatrick in April 2005.

Page 230

Plaintiffs contracted with JDN FP to purchase the lot and have a home constructed, with certain modifications, such as one to accommodate a full walk-out basement, which ultimately drove the price up to just over $1.56 million. Akhtar, who frequently visited the site during construction, testified at trial that shortly before the closing, he was surprised to find that the builder had deviated from Lanzafama's design by constructing a much longer, higher retaining wall along the eastern side of the property than originally designed. He acknowledged, however, that he had requested that the wall be raised by at least one foot to accommodate a backyard pool, and DeLuca introduced testimony suggesting that plaintiffs' requests for modifications required a more level backyard and consequently, expansion of the retaining wall. Lanzafama claimed at trial that his personnel had no knowledge of the modification until their site visit for a final survey, but confirmed that his design provided sufficient information for building the wall ultimately constructed.

[439 N.J.Super. 395] Nonetheless, the modification was undertaken without prior municipal approval, and JDN FP had apparently never obtained a permit for the wall in the first place. On one of his site visits, borough engineer Kirkpatrick noticed the change, along with other unauthorized work. Because the municipality had never inspected the retaining wall's construction, he requested a letter assuring that the wall had been built according to the manufacturer's specifications. Lanzafama wrote the letter at DeLuca's request.

At trial Lanzafama testified that, before doing so, he discussed with DeLuca the methods that had been used to construct the wall and inspected the wall himself, albeit after its completion. He explained that while investigating, he observed geogrid fabric protruding from the wall at various points, confirming that the three appropriately spaced layers of geogrid had been placed. He also observed drainage pipes extending from the wall, suggesting that the required toe drain had been installed at the crushed stone's base to evacuate any water that might build up within or alongside the wall. His field crew took measurements of the wall to confirm its location and elevation, and he himself examined soil immediately behind the wall to confirm its stability. He further reviewed photographs his crew had taken on site visits, which he believed showed that the blocks, gravel, and geogrid were appropriately placed and that the correct compaction tools had been used. Moreover, he recalled his own prior site visits at various stages of the ...

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