United States District Court, D. New Jersey, Camden Vicinage
SCHNEIDER United States Magistrate Judge.
matter is before the Court on the “Motion[s] for
Summary Judgment” (“Motion”) [Doc. Nos. 29,
14] filed by defendant Verizon New Jersey, Inc. The Court
received the opposition filed by plaintiffs Nubar Arakelian
[C.A. No. 17-02635, Doc. No. 35] and Dennis Bell a/k/a KBAZ
Taste of Philly [C.A. No. 17-12640, Doc. No. 17], and
defendant's replies [C.A. No. 17-02635, Doc. No. 38; C.A.
No. 17-12640, Doc. No. 18]. Defendant seeks summary judgment
on all claims raised in these two consolidated actions.
Pursuant to 28 U.S.C. § 636(c), the parties consented to
the jurisdiction of this Court to hear the case. [C.A. No.
17-02635, Doc. No. 9; C.A. No. 17-12640, Doc. No. 16]. The
Court recently heard oral argument. For the following
reasons, defendant's motions are DENIED.
a consolidated action originally filed by plaintiff Nubar
Arakelian in federal court. Shortly thereafter, another case
was filed by plaintiff Dennis Bell a/k/a KBAZ Taste of Philly
(hereinafter, “Bell”) in New Jersey state court.
Defendant removed Bell's case to federal court where it
was consolidated with the Arakelian case for discovery and
case management purposes only. See Order, Dec. 22,
2017 [Doc. No. 21]. Both actions concern the same property
and course of events.
about March 25, 2011, Arakelian's limited liability
company (“LLC”) - Marara, LLC - entered into a
Commercial Lease Agreement with Bell's LLC - KABZ, LLC -
for a five (5) year term for a property located at 7801 Maple
Avenue in Pennsauken, New Jersey. Arakelian Compl. ¶ 8
[Doc. No. 29-4]. Plaintiff Arakelian alleges he is a
Pennsylvania citizen and the sole member of Marara, LLC,
which was formed on April 14, 2008. Arakelian Opp. at 16;
see id., Ex. J. Plaintiff Bell alleges he is a
Pennsylvania citizen and the sole member of KABZ, LLC and
KKBAZ, LLC, both of which were formed around mid-2012 and
engaged in business as a pretzel bakery and frozen yogurt
shop at 7801 Maple Avenue. Letter, Dec. 14, 2018 [C.A. No.
17-12640, Doc. No. 23]; see Bell's Resp. to
Def.'s Interrog. Nos. 5, 6 [Doc. No. 18-1]. Bell alleges
that KBAZ, LLC and KKBAZ, LLC were dissolved on April 13,
2016. See Bell's Resp. to Def.'s Interrog.
Nos. 5, 6. Arakelian stated at oral argument his company,
Marara, LLC, was recently dissolved as well but counsel also
indicated that, if necessary, plaintiff would revive the LLC
for purposes of this litigation.
late 2012 or early 2013, Bell contends his businesses were
impeded when he began experiencing problems with plumbing,
including “poor drainage, backing up of drainage into
the street, and lack of water pressure.” Arakelian
Compl. ¶ 9. Despite Arakelian's efforts as landlord
to resolve the issue, the problem persisted. On July 31,
2014, Bell contends he was forced to terminate business and
vacate the property. Bell Compl. ¶ 3 [Doc. No. 29-4];
see Arakelian Compl. ¶ 11. The building was
subsequently quarantined by the Pennsauken Sewer Department
due to the backup of drainage into the street. Arakelian
Compl. ¶ 12. Sometime in early 2015, Arakelian hired a
project manager to investigate possible causes for the
plumbing issue. Id. ¶ 13. The investigation
ultimately determined that it resulted from defendant's
installation of a “Verizon duct conduit bank.”
Id. ¶ 14. Specifically, plaintiff was informed
defendant and/or its employees, agents, or subcontractors
“ripped out a [3 to 4 foot] portion of the
Property's sanitary sewer lateral” when it
installed the conduit bank. Id. ¶ 15.
2015, Arakelian was in contact with defendant and its
representatives to coordinate the necessary repairs.
See Arakelian Opp. at 8-9. Defendant proceeded to
file a claim with its insurance carrier, Sedgwick Claims
Management Services, Inc., listing Arakelian as the claimant
and “[Verizon] conduit installed in 1997 Maple
Ave” as the claim. Id., Ex. D. Around the same
time, defendant “retained a contractor to rearrange
four (4) PVC conduits in front of the property . . . to allow
for placement of a new sewer lateral.” Caniglia Cert.
¶ 7 [Doc. No. 29-2]. However, since the remediation,
defendant has maintained it is neither at fault nor able to
identify the contractor responsible for the conduit's
installation and plaintiffs' subsequent injuries and
damages. See Arakelian Opp., Exs. E-G.
now moves for summary judgment alleging plaintiffs'
claims are barred by the New Jersey statute of repose.
Defendant also argues that plaintiffs are not the real
parties in interest and therefore lack standing to sue. In
support of its motion, defendant submits the Certification of
Mike A. Caniglia, Verizon's Local Manager of Contract
Services whose territory includes plaintiffs' property.
See Caniglia Cert. ¶ 1. Caniglia attests he has
“personally reviewed the conduit print, ” and
asserts that this “section of the conduit was installed
in 1997 under work order number 31-4704C.” Id.
¶ 4. Caniglia states the “duct conduit bank was
installed as an addition to existing underground conduit in
this area in order to expand the availability of
Verizon's services for this territory.”
Id. ¶ 5. Caniglia also states he is
“unaware of any records showing any other underground
work performed on this duct conduit bank by Verizon and/or
its subcontractor in front of the property since . . . [it]
was installed in 1997.” Id. ¶ 8.
oppose defendant's motion, contending defendant cannot
assert the statute of repose as a defense because it is
“a utility provider that 1) installed the conduit in
order to expand its business in the geographical area, [who]
2) continues to exert dominion, ownership and control over
the conduit and 3) does not fall within the class of persons
entitled to repose.” Arakelian Opp. at 2. Plaintiffs
further contend that defendant's reliance on
Caniglia's Certification is insufficient to support its
motion for summary judgment as to the issue of repose.
See Bell Opp. at 6.
Summary Judgment Standard
judgment is appropriate when, drawing all reasonable
inferences in the non-movant's favor, there exists
“no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby,
477 U.S. 242, 256 (1986). Summary judgment is not
appropriate, however, if the dispute over a material fact is
“genuine, ” that is, if the evidence is such that
a reasonable jury could return a verdict in favor of the
non-moving party. Anderson, 477 U.S. at 248.
“[T]he substantive law will identify which facts are
material.” Id. at 248. Only disputes over
facts that weigh on the case's outcome “will
properly preclude the entry of summary judgment.”
Id. The Court must view all evidence and draw all
reasonable inferences in a light most favorable to the
non-moving party. See Startzell v. City of
Philadelphia, 533 F.3d 183, 192 (3d Cir. 2008) (citation
moving party bears the initial burden of informing the Court
of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once satisfied, the
burden shifts to the non-moving party to demonstrate “a
genuine issue for trial.” Anderson, 477 U.S.
at 250 (“[W]hether, in other words, there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.”). The party opposing summary
judgment may not “rest upon mere allegation[s] or
denials of his pleading, ” but must set forth specific
facts and evidence demonstrating a genuine dispute for trial.
Id. at 256; Fed.R.Civ.P. 56(c)(1)(A).
Statute of Repose
Jersey statute of repose, N.J.S.A. 2A:14-1.1(a), provides
a. [n]o action . . . to recover damages for any deficiency in
the design . . . or construction of an improvement to real
property . . . shall be brought against any person performing
or furnishing the design, . . . or construction of such
improvement . . . more than 10 years after the performance or
furnishing of such services and construction. This limitation
shall serve as a bar to all such actions.
Jersey Legislature enacted the statute of repose in response
to construction-defect cases and with the intent of
insulating construction professionals (such as architects,
planners, designers, builders, and contractors) from
indefinite liability through operation of the discovery rule.
The Palisades at Fort Lee Condo. Ass'n, Inc. v. 100
Old Palisade, LLC, 230 N.J. 427, 453 (2017) (citing
Town of Kearny v. Brandt, 214 N.J. 76, 93 (2013)).
“Unlike a statute of limitations, the statute of repose
‘does not bar a cause of action; its effect, rather, is
to prevent what might otherwise be a cause of ...