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Garden Howe Urban Renewal Assocs. v. HACBM Architects Eng'rs Planners, LLC

Superior Court of New Jersey, Appellate Division

February 26, 2015

GARDEN HOWE URBAN RENEWAL ASSOCIATES, L.L.C., Plaintiff-Appellant,
v.
HACBM ARCHITECTS ENGINEERS PLANNERS, L.L.C., Defendant/Third-Party Plaintiff-Respondent, and DEL-SANO CONTRACTING CORP., Third-Party Defendant

Argued: January 6, 2015

Approved for Publication February 26, 2015.

Page 83

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1126-11.

Robert C. Scrivo argued the cause for appellant ( McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo, of counsel; Lawrence S. Cutalo and Andrew Gimigliano, on the briefs).

Thomas M. Madden argued the cause for respondent ( Hack, Piro, O'Day, Merklinger, Wallace & McKenna, P.A., attorneys; Mr. Madden, of counsel; Mr. Madden and Christine McCarthy on the brief).

Before Judges YANNOTTI, FASCIALE and HOFFMAN. The opinion of the court was delivered by YANNOTTI, P.J.A.D.

OPINION

Page 84

[439 N.J.Super. 449] YANNOTTI, P.J.A.D.

Plaintiff Garden Howe Urban Renewal Associates, L.L.C. appeals from an order dated July 2, 2013, barring its expert report; an order dated July 12, 2013, denying its motion to adjourn the trial date and extend the time for discovery; and an order dated September 24, 2013, dismissing its remaining claim with prejudice. We reverse.

I.

In November 2004, HACBM Architects, Engineers, Planners L.L.C. (" HACBM" ) submitted a proposal to plaintiff for architectural and engineering services to " design and document" a roof-level addition and various alterations to an existing four-story building in Passaic (the " Project" ). According to the proposal, the services required included " architecture, structural engineering, and mechanical, electrical, plumbing, and fire protection engineering."

The proposal indicated that the services would be provided in three phases. In the first phase, HACBM would analyze structural and building codes, review schematic design plans and elevations, and develop preliminary plans, details and specifications. In the second phase, HACBM would develop the required " architectural, structural, mechanical, electrical, plumbing, and fire protection systems in sufficient detail to set forth the requirements for [439 N.J.Super. 450] construction of th[e] project," and provide plaintiff with detailed plans and specifications " for the architectural and engineering systems described." In the third phase, HACBM would periodically observe and evaluate the construction progress, and visit the site on a semi-monthly basis during an eight-month construction period.

On November 19, 2004, James Robbins (" Robbins" ), plaintiff's President, signed the agreement, accepting the proposal. The parties also executed a " Standard Form of Agreement Between Owner and Architect for a Small Project" of the American Institute of Architects (" AIA" ), which set forth the architect's responsibilities (the " Agreement" ). The Agreement stated that " [t]he Architect shall provide architectural services for the project, including normal structural, mechanical, and electrical design services. Services shall be performed in a manner consistent with professional skill and care."

In October 2008, plaintiff filed a complaint in the Law Division against HACBM, asserting professional malpractice claims. In January 2009, HACBM filed an answer and counterclaim against plaintiff. In February 2009, plaintiff served an Affidavit of Merit (the " AOM" ) from David V. Abramson (" Abramson" ), an architect licensed in New Jersey and New York.

In January 2009, Abramson provided a letter report concerning certain deficiencies in the construction documents. Abramson also provided a letter report, dated March 12, 2010, which addressed the replacement of " an existing means of egress stair" which was part of the Project (" Stairway No. 2" ). Abramson analyzed certain provisions of the " Rehabilitation Subcode" in the State's Uniform Construction Code (" UCC" ), N.J.A.C . 5:23-6.1 to -6.33. Based on that review, Abramson concluded

Page 85

that replacement of Stairway No. 2 and a related structure had not been necessary.

Plaintiff also served a report from Project Control Associates (" PCA" ), dated April 15, 2010, which resulted from its investigation of the professional design and construction phase services that HACBM had provided for the Project. According to the [439 N.J.Super. 451] report, the investigation was conducted and the report prepared by Harold M. Tepper (" Tepper" ), a professional engineer; John Lyssikatos (" Lyssikatos" ), a professional engineer; and Frank M. Graczyk (" Graczyk" ), a licensed building code, fire protection code and mechanical code inspector. The report stated that it had been prepared with Abramson's assistance.

Robbins was deposed in October 2010. During his deposition, Robbins indicated that, in addition to other claims against HACBM, plaintiff was asserting a claim for an alleged overpayment of approximately $900,000 to the general contractor on the Project, Del-Sano Contracting Corp. (" Del-Sano" ). In addition, Robbins had authored a report detailing plaintiff's business-loss claim of about $1,150,000.

Based on Robbins's deposition testimony, HACBM filed a motion seeking: (1) leave to file a third-party claim against Del-Sano; (2) to bar PCA's " agents" and Abramson from being qualified as experts due to concerns that they were acting as advocates for plaintiff, rather than providing objective expert opinions; (3) to preclude Robbins from testifying as an expert as to plaintiff's business losses since he did not have the qualifications to do so; and (4) to limit Abramson's testimony to the replacement of Stairway No. 2.

It appears that the trial court did not rule on the motion. Rather, the parties agreed to the dismissal of the complaint without prejudice. On March 3, 2011, plaintiff filed a new complaint against HACBM. On April 12, 2011, HACBM filed an answer, counterclaim and third-party complaint against Del-Sano. On May 13, 2011, Del-Sano filed an answer to the third-party complaint, and on May 23, 2011, plaintiff filed an answer to the counterclaim.

On June 22, 2011, HACBM filed a petition in the United States Bankruptcy Court under Chapter 7 of the Bankruptcy Act, 11 U.S.C.A. § § 701-784, and proceedings in this case were stayed. The bankruptcy proceedings were completed on March 2, 2012.

[439 N.J.Super. 452] On September 13, 2012, plaintiff filed an amended, four-count complaint against HACBM, which included a claim against Del-Sano. In count one, plaintiff alleged that HACBM breached the Agreement by, among other things, failing to address construction issues as they arose, provide adequate plans to construct the Project, undertake adequate job supervision, ensure proper implementation of the plans, and submit complete plans or revisions when required.

Furthermore, in count two, plaintiff alleged that HACBM was comprised of licensed architects and that it was negligent since it failed to meet the minimum standard of care " as set by the industry" with regard to the services provided for the Project. In addition, in count three, plaintiff claimed that HACBM breached a duty to provide architectural services in a non-negligent manner.

Moreover, in count four, plaintiff alleged that HACBM had contracted with Del-Sano to perform certain services for the Project. Plaintiff claimed that Del-Sano was obligated to carry out and implement the plans for construction that HACBM had prepared. ...


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