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Lacroce v. M. Fortuna Roofing, Inc.

United States District Court, D. New Jersey

December 12, 2017


          Salvatore J. Siciliano, Esq. SICILIANO & ASSOCIATES, LLC, Attorney for Plaintiff.

          John J. Delany, III, Esq. DELANY McBRIDE, Attorney for Defendants M. Fortuna Roofing, Inc. and Michael Fortuna.




         Pending before the Court is a motion for summary judgment filed Defendants M. Fortuna Roofing, Inc. (hereinafter, “Fortuna Roofing”) and Michael Fortuna (hereinafter, “Fortuna”) (collectively, “Defendants”). The motions arise from a breach of contract and negligence action in which Plaintiff Saverio Lacroce (hereinafter, “Plaintiff”) filed suit against Defendants after an alleged malfunctioning of a newly-installed Polyglass roof on his commercial property. For the following reasons, Defendants' motion for summary judgment is granted in part and denied in part.

         II. BACKGROUND [1]

         A. Factual Background

         On September 22, 2011, Defendants entered into a written agreement with Plaintiff for the installation of an approximately 56, 000 square-foot roof system consisting of white Polyglass “G Torch” applied surface material at Plaintiff's property on 815 Hylton Road, Pennsauken, New Jersey 08110. (Pl. Br., Ex. A.) The contract price of $89, 000 was paid in full by Plaintiff. (Pl. Br., ¶ 2.) Defendant obtained the necessary permit in October 2011, and the roof installation was reportedly completed in January 2012.

         Shortly following the conclusion of the roof installation, it became apparent to Plaintiff that the roof was not functioning properly, as water began to intrude into the building, causing damage and complaints from Plaintiff's tenants. (Id. at ¶ 4.) Immediately, in order to get a prompt resolution, Plaintiff contacted Defendant Michael Fortuna via telephone. From 2012 through 2014, Plaintiff called Defendant approximately 252 times in an attempt to have Defendants fix the roof and honor the twelve-year warranty that was provided in the agreement. (Pl. Br., Ex. B.) During this time period, Defendants attempted to fix the roof. (Pl. Br. at 2.) However, the Defendants' proposed remedies only served as short-term, temporary fixes. (Id.)

         On May 24, 2013, Plaintiff sent a letter to Defendants, stating “Units [were] withholding rent. When will [P]olyglass[2] rep be on site? I know you service the roof when I call, however, a new point of view is necessary.” (Pl. Br., Ex. C.) Due to Defendants' failure to respond, Plaintiff sent the same letter to Defendants via telefacsimile. (Pl. Br., Ex. D.) Thereafter, in mid-July 2013, Polyglass USA was alerted of the water intrusion, and the manufacturer sent their National Technical Services Manager to the site in order to perform an examination of the subject roof. (Id.) On July 23, 2013, following the site visit, Polyglass USA's Technical Services Manager, wrote a letter to Defendant Michael Fortuna, advising that their review revealed “various application related concerns” and conditions that were “not compliant with Polyglass and other industry published requirements.” (Pl. Br., Ex. E.) It was further determined that “water intrusion concerns [were] a result of product application and not related to any type of manufacturing deficiency.” (Id.)

         On February 27, 2014, Plaintiff's counsel received an electronic mail from Defendants stating that:

"There is no contenting (sic) that there are issues at this property, we have been out several time including, in the past months ... we are glad to address any and all of Sam's issues; however its weather conditions that are holding us back .. .I don't want to band aid this roof, I want it right, but to this point this winter, we can only do temp repairs till the weather breaks, I can put crews roof techs from [P]olyglass, to do saturation test for area waterproofing and correct issues."

(Pl. Br., Ex. G.)

         On March 14, 2014, Plaintiff received correspondence from Robert Sears, a tenant setting forth in detail the damages to his rental spaces at 815 Hylton Road, and requesting that Plaintiff reimburse him for all damages incurred, including rent and electricity payments, estimated to total over $30, 000. (Pl. Br., Ex. J.) Plaintiff's counsel forwarded this letter to Defendants and informed Defendant Michael Fortuna that they would seek the Court's intervention if all problems associated with the roof was not cured by April 1, 2014. (Pl. Br., Ex. K.) On March 26, 2014, Defendant Fortuna informed Plaintiff's counsel that the roof service work was in progress, and “as the weather improve[d][, ] [they] would be on site to continue to resolve all issues.” (Pl. Br., Ex. L.) On April 10, 2014, Plaintiff's counsel sent correspondence to Defendant Michael Fortuna regarding his request for an HVAC inspection and further advising and placing on notice that another tenant at the subject property had suffered water damage due to the leaky roof. (Pl. Br., Ex. M.) The tenant also indicated that he had sustained damages of approximately ten thousand dollars ($10, 000) for a copier machine. (Id.)

         From May 2014 forward, Defendants never returned to the subject property, as instructed by their insurance company (Travelers Insurance). (Pl. Br., Ex. W 79:6-23.) During Mr. Fortuna's second deposition on January 29, 2016, he stated that he would have continued attempting to fix the roof and would have still been there, pursuant to his warranty, but he was notified to cease doing so by his insurance company. (Id.) From May 2014 to November 2014, Plaintiff attempted to resolve this situation through Defendant's insurance company, but, due to a settlement offer that was “well under the cost of a replacement roof”, that effort was unsuccessful. (Pl. Br., ¶¶ 21-29, Ex.'s N, O, P & R.)

         During his first deposition in connection with this litigation, Defendant Michael Fortuna testified that “[a]s the contractor on record, [he] would be at fault.” (Pl. Br., Ex. T 250-51:18-3.) Fortuna made similar concessions during his second deposition. (Pl. Br., Ex. W 79:10-23.) On December 29, 2015, Mark Lichter, President and Owner of Third-Party Defendant A-Plus Roofing[3] was deposed. During his deposition, Mr. Lichter stated that Defendant Michael Fortuna “has never paid [him] and/or [his] company, not one penny.” (A-Plus Dep. 33:11-16.) Regarding the cash receipts produced by Defendant, purporting to show cash payments to A-Plus for their work on Plaintiff's roof, Mr. Lichter stated that he did not recognize the dates or amounts “at all.” (Id. at 33:20-24.)

         In May 2016, Plaintiff's Expert, Joseph R. Heidt, RRC, CDT of Roof Management Services, Inc., prepared a "Roof System Evaluation Support" report addressing causation and liability. (Pl. Br., Ex. X.) This report addressed the status of the existing roof at 815 Hylton Road, Pennsauken, NJ. Mr. Heidt concluded that Defendants were deficient in both the application of asphalt roof cement and the overall condition of the roof system, which demonstrated a “lack of care, training or understanding of accepted standards . . ..” (Id.) Mr. Heidt further opined that “the Owner and his Tenants have experienced water penetration and related consequential damages” resulting from Defendant's deficiencies in installation. (Id.) Additionally, Mr. Heidt's report cited directly to the International Building Code ("IBC"), New Jersey Edition, and details nine instances where Defendants committed a “Breach of Duty or Deviation from Accepted Standards” in relation to the work on Plaintiff's roof. (Id.) These include Defendant's “improper torching of the Polyflex G membrane” or “application of asphalt roof cement on membrane laps.” (Id.) Mr. Heidt carefully details the “lack of care, training, or experience” indicated by Defendant's work. (Id.)

         B. ...

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