Lourdes Gonzalez v. 908-910 Washington Street, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1099-24

LOURDES GONZALEZ,

Plaintiff-Appellant/

Cross-Respondent,

v.

908-910 WASHINGTON STREET,

LLC,

Defendant-Respondent/

Cross-Appellant,

and

S&B PLUMBING & HEATING

CORP.,

Defendant.

_____________________________

Argued March 2, 2026 – Decided March 30, 2026

Before Judges Sabatino, Walcott-Henderson and

Bergman.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-3993-20.

Richard D. Picini argued the cause for appellant/cross-

respondent (Caruso Smith Picini, PC, attorneys;

Richard D. Picini, of counsel and on the briefs).

Janet Kalapos Corrigan argued the cause for

respondent/cross-appellant (Leyden Capotorto Ritacco

Corrigan & Sheehy, PC, attorneys; Janet Kalapos

Corrigan, on the briefs).

PER CURIAM

This complicated civil litigation involving lead exposure in a plaintiff

tenant's apartment unit returns to our court in the wake of our 2023 unpublished

opinion remanding the case to the trial court. See Gonzalez v. 908-910

Washington Street, LLC, No. A-2463-22 (App. Div. Sept. 13, 2023). On

remand, the case was tried before a jury, resulting in a no-cause verdict in favor

of defendant. Plaintiff now appeals, and defendant provisionally cross-appeals

certain rulings.

For the reasons that follow, we vacate the jury verdict and order a new

trial. We do so because the trial court misclassified the rented premises as not

being within the scope of the Hotel and Multiple Dwelling Act ("HMDA"),

N.J.S.A. 55:13A-1 to -31. We reject all other arguments raised in the appeal

and cross-appeal.

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2

I.

We incorporate by reference and update the background recited in our

earlier opinion.

Succinctly stated, this case stems from plaintiff Lourdes Gonzalez's

discovery that the hot water system in her Hoboken apartment owned by

defendant, 908-910 Washington Street, LLC ("the landlord"), contained nearly

seventy times the amount of lead acceptable by Environmental Protection

Agency ("EPA") standards. The lead apparently came from a baseboard heating

system, which conveyed hot water to the sinks and a shower in the apartment

through copper pipes. The pipes were bound together with solder that contained

lead.

Plaintiff resided in the apartment unit for forty-six years, from 1974 to

2020, except for some temporary absences. She is disabled and has been unable

to work since 2008. She attributes her inability to work to cognitive decline as

a result of long-term lead poisoning from drinking the hot water in her unit.

An expert in environmental and occupational medicine who evaluated

plaintiff opined that, in addition to being exposed to lead in the hot water, she

also had been exposed to lead paint in the apartment. The expert came to this

conclusion after reviewing the report of a home inspector who opined that,

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3

because of the age of the apartment, lead paint was certainly used. The expert

further opined that three miscarriages plaintiff had suffered in her twenties were

attributable to lead toxicity.

Seeking compensation for her injuries from lead exposure, plaintiff filed

this lawsuit naming several defendants: the landlord, a plumbing company

(which has since been dismissed), and fictitious parties who installed the

baseboard hot water system and piping. In her complaint, plaintiff alleged that

defendant landlord1 was negligent, breached the implied warranty of

habitability, and violated the HMDA.2

The premises in question consists of two connected buildings. The

landlord LLC owns the building that contains plaintiff's apartment, along with

the neighboring brownstone, 910 Washington Street. Both the 908 and 910

buildings (respectively, "908" and "910") are three stories tall and have two

apartments on the second and third floors. Since around 2001, they have shared

1

From this point forward, we refer to the landlord as "defendant," unless the

context suggests otherwise.

2

Associated regulations require multiple dwellings to provide "potable water."

N.J.A.C. 5:10-15.1 ("Every multiple dwelling and hotel shall be connected to a

source of and system for delivery of potable water sufficient to meet the

requirements for hot and cold water at all connected fixtures").

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4

a first floor, which is used for a restaurant also owned and operated by

defendant.

Defendant acquired 908 and 910 in 2001 when Eugene Flinn and his wife,

who previously owned the two properties separately, transferred their interests

in 908 and 910 to defendant. Flinn and his wife are the sole members of the

defendant LLC.

Plaintiff, along with her sisters, had previously sued this same landlord,

asserting several distinct legal claims including breaches of the implied warranty

of habitability based on the conditions of that apartment. That first lawsuit

ended in a settlement, with an associated written release of all claims known or

unknown related to that action.

Defendant initially succeeded in dismissing this current lawsuit based on

the release, however the case was remanded by our court because the record at

that time did not demonstrate that lead poisoning was within the contemplation

of the parties when they entered into the release. Gonzalez, slip op. at 10.

After further discovery, defendant moved for summary judgment .

Defendant argued that statements made by plaintiff's sister showed that plaintiff

had contemplated the quality of the hot water at the time of the initial lawsuit.

Defendant also argues that this evidence demonstrated the statute of limitations

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5

barred plaintiff's claim. This motion was denied, as well as a subsequent motion

for reconsideration, and the case proceeded to a jury trial.

During discovery, plaintiff moved to substitute Flinn for one of the

fictitious parties named in her complaint, because answers to interrogatories

revealed he owned 908 as an individual in 1996, the time the heating was

allegedly installed. This motion was rejected by the Civil Part Presiding Judge

out of concern that Flinn would be unduly prejudiced due to the length of time

in between the installation of the pipes and this lawsuit commencing.

Plaintiff moved again in limine to substitute Flinn. This time, a successor

judge who presided over the trial ("the trial judge") denied reconsideration and

ruled that plaintiff could not toll the statute of limitations by naming fictitious

defendants because Flinn's identity as the owner of 908 was easily ascertainable

before plaintiff filed her complaint.

The case was tried in the fall of 2024 before a jury. At the conclusion of

plaintiff's case in chief at trial, defendant moved for a directed verdict against

Count One of her complaint that defendant had violated the HMDA. Defendant

argued plaintiff had only proved common ownership of 908 and 910 and that,

because the addresses were on separate lots, neither had at least three dwelling

units required to be subject to the Act. Defendant also claimed that the addresses

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6

sharing a first floor did not change their legal status as separate buildings. The

trial judge directed a verdict against plaintiff on this issue, principally reasoning

that because the apartments had separated entrances and the addresses were on

separate lots, the Act did not apply.

The trial judge also sustained defense objections to plaintiff's expert

testimony, ruling the expert could not testify as to plaintiff's miscarriages and

opine they related to lead toxicity because that testimony's prejudice

substantially outweighed its probative value. The judge additionally sustained

objections to the expert testimony on lead paint, ruling that expert had relied on

the inadmissible opinion of the home inspector in making that conclusion.

The jury ultimately returned a no-cause verdict on plaintiff's remaining

counts.

Plaintiff now appeals: (1) the denials of her motions to substitute Flinn

for a fictitious party in the complaint (2) the directed verdict against Count One

of her complaint and (3) the evidentiary rulings preventing testimony on

reproductive toxicity and lead paint.

Defendant cross-appeals, primarily arguing that plaintiff's claim should

have been dismissed because they were barred by the release and the statute of

limitations.

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II.

We focus on the key issue of the HMDA's application, which is the only

issue in the appeal and cross-appeal that warrants appellate correction.

The HMDA ("the Act"), N.J.S.A. 55:13A-1 to -31, was one of several bills

proposed by the Executive to the Legislature in 1967 with the goal of "assisting

the communities in this most urban state of the nation." Executive Office Inter-

Communication from Gov. Richard J. Hughes to the Members of the N.J.

Legislature (Mar. 6, 1967). Then-Governor Hughes promoted the Act as being

"aimed at updating and strengthening laws regulating hotels and multiple

dwelling units to insure that all meet modern standards of health and safety."

Ibid.

The Act was passed and became effective as of May 31, 1967. N.J.S.A.

55:13A-1. The Act defines a "multiple dwelling" as:

Any building or structure of one or more stories and any

land appurtenant thereto, and any portion thereof, in

which three or more units of dwelling space are

occupied, or are intended to be occupied by three or

more persons who live independently of each other.

This definition shall also mean any group of ten or more

buildings on a single parcel of land or on contiguous

parcels under common ownership, in each of which two

units of dwelling space are occupied or intended to be

occupied by two persons or households living

independently of each other, and any land appurtenant

thereto, and any portion thereof.

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[N.J.S.A. 55:13A-3(k) (emphasis added).]3

In the corresponding regulations, the term "building" is defined as:

a structure built, erected and framed of component

structural parts designed for the housing, shelter,

enclosure and support of individuals, animals or

property of any kind which is enclosed within exterior

walls on all sides.

[N.J.A.C. 5:10-2.2 (emphasis added).]

The Act recognizes that it is possible for a building that was not previously a

multiple dwelling to become one through "conversion or alteration." N.J.S.A.

55:13A-3(k)(2).

Our application of the HMDA in this case is guided by its "declaration of

policy," which prescribes as follows:

This act being deemed and hereby declared remedial

legislation necessary for the protection of the health and

welfare of the residents of this State in order to assure

the provision thereof of decent, standard and safe units

of dwelling space, shall be liberally construed to

effectuate the purposes and intent thereof.

[N.J.S.A. 55:13A-2 (emphasis added).]

3

The Act was amended in 1983. L. 1983, c. 447. The purpose of that

amendment---not pertinent here--was to correct an "anomaly," in that property

owners who rented many dwelling units to many tenants would not have been

subject to the duties of the Act if those units were separated. Assemb. Housing

and Urban Policy Committee Statement to A. No. 3191 (June 20, 1983) (L. 1983,

c. 447).

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In applying the Act, our courts have generally taken notice of this

legislative intent that it be "liberally construed," and have upheld broad

applications of the statute in the interest of protecting the health and safety of

tenants. See, e.g., Rumson Country Club v. Comm'r of Cmty. Aff's., 134 N.J.

Super. 54. 59 (App. Div. 1975) (ruling that a country club with rooms for

members was a "multiple dwelling"); Blair Acad. v. Sheehan, 149 N.J. Super.

113, 117 (App. Div. 1977) (upholding a finding that a boarding school was a

"hotel" under the Act).

Other case law illustrates these expansive principles. In Bunting v.

Sheehan, 156 N.J. Super. 14, 15 (App. Div. 1976), a landlord appealed a finding

by the Commissioner of the Department of Community Affairs ("DCA") that his

building was a multiple dwelling under the Act. 156 N.J. Super. at 15. The

structure in question had two street addresses, with each address having a

separate entrance and heating system. Id. at 16. Although underneath a single,

unpierced roof, the premises of the two addresses were completely separated by

an interior fire wall. Ibid. Before the landlord gained ownership of both

addresses, they were separately owned and separately taxed, although our

opinion did not specify whether the addresses were on separate lots. Id. at 16-

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17. The Commissioner of the DCA determined the property to comprise a single

building subject to the Act. Id. at 18. We affirmed that determination. Ibid.

Comparably, in Rothman v. Dep't of Cmty. Aff's, Bureau of Hous.

Inspection, 226 N.J. Super. 229, 230 (App. Div. 1988), the DCA had determined

that three buildings, each containing four apartments that were separated in half

by an interior firewall, were multiple dwellings. In that case, the LLC that

owned the buildings had separated the buildings' ownership by transferring half

of each building to a couple, who were the LLC's president and vice president.

Id. at 230. The landowner argued this separate ownership converted the

properties into separate buildings with two apartments, and thereby not qualified

as multiple dwellings under the HMDA. Id. at 233.

We rejected the owner's contention in Rothman and affirmed the DCA's

classification. In doing so, we specifically noted that common ownership was

not required to deem a building a multiple dwelling under the Act, except for

subdivisions expressly addressed by the 1983 amendment. Id. at 233-34 (citing

N.J.S.A. 55:13A-3(k)). We reasoned that if common ownership was a necessary

element in determining whether a building was a multiple dwelling, the

Legislature would have had no need to specify when common ownership was a

factor in other portions of the Act. Ibid. That said, we also recognized in

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Rothman the DCA Commissioner deemed it relevant that both halves of each

building were effectively owned by the same people. Id. at 234-35. In sum,

common ownership is not required to establish that properties qualify as

multiple dwellings subject to the Act, although the presence of such common

ownership can weigh in favor of such a classification.

As expressed in the Act and associated regulations, if a landlord's property

qualifies as a "multiple dwelling", that landlord has affirmative duties, defined

by regulation, to protect the health and safety of tenants. Especially pertinent

here, those affirmative duties include: (1) a duty to provide potable hot and cold

water, N.J.A.C. 5:10-15.1, and (2) a duty to test for the presence of lead paint.

N.J.A.C. 5:10-6.6.

Affirmative duties imposed under the Act for multiple dwellings are

distinct from a landlord's general duty to repair the premises. See, e.g., Braitman

v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975) (holding that although the

plaintiffs did not include a violation of the HMDA in their original complaint,

the Act created another basis for the landlord's liability in failing to properly

install a lock on the apartment door). As the Supreme Court has observed, "[i]t,

is entirely appropriate in an action to establish civil liability to consider the

landlord's statutory and administrative responsibilities for his tenants to furnish

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habitable residential premises." Trentacost v. Brussel, 82 N.J. 214, 230 (1980).

These statutory and regulatory requirements alter the standard of care a

reasonable landlord should provide and "whether the reasonably prudent person

at the time and place should recognize and foresee an unreasonable risk or

likelihood of harm or danger to others." Id. at 222 (citing Rappaport v. Nichols,

31 N.J. 188, 201 (1959)).

As we noted above, the present case involves parcels with two street

addresses, 908 and 910, consisting of two connected structures. On the second

and third floors of each structure there are two apartment units, one above the

other. On the first floor spanning both structures there is a restaurant beneath

the apartments. According to Flinn's deposition testimony that plaintiff

proffered at trial, he acknowledged that 908 and 910 had been "merged" to

utilize the entire first floor and cellar floor space of both structures for the

restaurant. Plaintiff's sister and co-tenant Emily Vermeal, a fact witness who

had seen the construction, testified that 908 was "merged physically" with 910,

and "[the owners] made two openings from 908 Washington Street to 910

Washington Street, maybe three. The basement also connects the two buildings

together." Vermeal further testified that someone could walk between 908 and

910 freely on the first floor and through the basement.

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At the conclusion of plaintiff's case in chief at trial, defendant moved for

a directed verdict to dismiss Count One of the complaint, which alleged

defendant was in breach of the HMDA. Defendant argued that the evidence

plaintiff proffered merely showed that 908 and 910 were on separate plots, and

that there simply had been a "doorway" constructed that connected the buildings

through the retail space on the first floor. Defendant further argued that if 908

and 910 had truly been merged into one building, the premises would have had

"one lot and block number." Defendant also stressed that the DCA had not

determined that 908 and 910 was a multiple dwelling.

The trial judge granted defendant's motion and concluded that the

premises did not qualify as a multiple dwelling under the Act. Among other

things, the judge noted that the distinct lot and block numbers in the deeds

evidenced that 908 and 910 were separate structures. The judge further noted

that there was no physical connection upstairs between the apartments.

The judge also reasoned that common ownership was irrelevant to

determining whether a building was a multiple dwelling. The judge accordingly

regarded plaintiff's proof of common ownership and the "merger" of the first-

floor retail/restaurant space insufficient to establish multiple-dwelling status

under the Act. Instead, the premises were deemed to be two separate buildings,

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each with only two apartments above them and therefore less than the three

dwellings required under the Act.

Plaintiff argues the trial judge's rejection of multiple-dwelling status for

the premises was erroneous. We evaluate that argument, de novo, because the

proper statutory classification of the premises appears to entail a question of

law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995); Serico v. Rothberg, 234 N.J 168,178 (2018). Having applied de novo

review--and bearing in mind the legislative mandate to liberally construe the

statute--we respectfully reverse the trial court's classification ruling under the

HMDA and its entry of a directed verdict on Count One.

The present situation is comparable to the facts in Bunting, 156 N.J.

Super. at 15-18, in which we treated two structures having separate street

addresses and separate entrances, and which were physically separated by a fire

wall, as a single multiple dwelling for the purposes of the Act. Here, there is

even more of a nexus between the structures than in Bunting, by virtue of the

first-floor restaurant and the unified basement that connect 908 with 910. It is

not dispositive that the apartments upstairs are separated by a firewall. The first

floor and basement have sufficient integration.

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Using the lay terminology adopted by Flinn, the two buildings were

effectively "merged." In fact, plaintiff asserts (and no evidence to the contrary

has been offered) that the properties, which are the subject of common variances,

could not be sold at this point as two separate parcels.

In addition, the trial judge erred in treating the common ownership of 908

and 910 as irrelevant. As we noted above, under the case law, common

ownership is not required to establish a multiple dwelling, but common

ownership can nevertheless be a factor that weighs in favor of such a

classification. Rothman, 226 N.J. Super. at 234-35. Here, there is such common

ownership.

Further, the analysis does not turn on the absence of a finding by the DCA

that these premises are a multiple dwelling. The question was never presented

by anyone, landlord or tenant, to the DCA. We recognize the tenant had the

option of reporting the landlord to regulatory authorities, but she had no

obligation to do so. And there is nothing in the statute or case law that makes a

DCA classification of the premises a prerequisite to invoking the HMDA in a

civil lawsuit.

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We therefore reverse the trial judge's classification. That legal error was

of substantial consequence, because it materially affected the standards of duty

that were used to instruct the jury.

If Count One had not been dismissed, plaintiff would have been entitled

to have the court instruct the jury that, under the HMDA, a landlord of such

multiple dwellings is required by statute to fulfill certain duties to tenants that

go above and beyond the duties owed by other landlords. See Model (Civil)

Jury Charge 5.20D ("Duty of Owner of Multi-Family House to Tenants and

Others"). The Model Charge in subsection (A)(1) explains to jurors:

Statutory and regulatory responsibilities establish a

standard of conduct for landlords. If the defendant

violated any statute/regulation, the violation may be

considered by you as evidence of defendant's

negligence. However, such violations are not

conclusive on the issue of the defendant's negligence,

and you are to consider all the evidence and

circumstances to reach your decision on whether the

defendant was negligent in this case.

Footnote 7 to the Model Charge underscores that important point:

Under the Hotel and Multiple Dwelling Act,

N.J.S.A. 55:13A-1 et seq., the Commissioner of the

Department of Community Affairs is required to issue

regulations to ensure that any hotel or motel dwelling,

as defined in N.J.S.A. 55:13A-3 of the Act, will be

constructed and maintained in a manner that protects

the health, safety and welfare of the occupants and the

public. N.J.S.A. 55:13A-7. These regulatory duties

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have been promulgated in N.J.A.C. 5:10-6 to 27. In

addition, the Legislature has codified certain specific

duties of landlords/owners in statutes. See e.g.,

N.J.S.A. 55:13A-7.1 (Duty to provide smoke detectors

or smoke alarms in conformance with regulations of the

Commissioner of the Department of Community

Affairs); N.J.S.A. 55:13A-7.13 (Duty to provide child

protection window guards upon written request of

tenant).

Plaintiff was deprived of the benefit and advocacy force of that Model

Charge. Instead, plaintiff was forced to rely on the less stringent jury instruction

concerning an alleged breach of the implied warranty of habitability, which

makes no mention of a duty imposed by the Legislature. The jury never got to

hear from the judge about the importance and relevance of that statutory duty.

We recognize the model charge also makes clear that the violation of a statute,

while indicative of a lack of due care, is not conclusive of negligence. Even so,

the jury was not informed of a violation's pertinence.

We are unpersuaded by defendant's argument that Dwyer v. Skyline

Apartments, Inc., 123 N.J. Super. 48, 51 (App. Div. 1973), aff'd o.b. 63 N.J. 577

(1973), renders the omission of the statutory jury charge inconsequential. In

Dwyer, a tenant of a multiple dwelling sued her landlord for negligence after

her showerhead faucet fell out of the tile walls and she was scalded by the hot

water that came from the exposed pipe. Ibid. After a jury found the landlord

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liable for the harm, this court reversed the verdict because the scalding water

was a latent defect that could not have been reasonably discoverable by the

landlord. Id. at 53. We ruled that, given the latent nature of the hazard, the

landlord did not breach a duty to repair the condition. Id. at 56. Here, however,

plaintiff's claims rest upon a greater duty: not simply a duty to repair a

discoverable hazard, but an affirmative regulatory duty to provide tenants with

potable water. That duty exists regardless of whether the landlord has actual or

constructive notice that the water it is supplying is contaminated with lead.

Hence, Dwyer is not on all fours with the present case.

Because of the court's classification error, plaintiff was materially

disadvantaged by the omission of the model charge concerning statutory

violations. The error was "clearly capable of producing an unjust result," see

Rule 2:10-2, and was not harmless. "It is fundamental that '[a]ppropriate and

proper charges to a jury are essential for a fair trial.'" Prioleau v. Kentucky Fried

Chicken, Inc., 223 N.J. 245, 256 (2015) (quoting Velazquez ex rel. Velazquez

v. Portadin, 163 N.J. 677, 688 (2000)). "A charge is a road map to guide the

jury, and without an appropriate charge a jury can take a wrong turn in its

deliberations . . . [T]he court must explain the controlling legal principles and

the questions the jury is to decide." Das v. Thani, 171 N.J. 518, 527 (2002)

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(quoting State v. Martin, 119 N.J. 2, 15 (1990) (alterations in original)).

Therefore, erroneous jury charges "are ordinarily presumed to be reversible

error." Ibid. (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

For these reasons, the, the verdict must be set aside and plaintiff is entitled

to a new trial with proper jury instructions that include a charge on the duties a

landlord owes under the HMDA.

III.

We briefly address, in no particular order, the remaining arguments

presented by plaintiff on appeal, and by defendant in its cross-appeal.

A.

Plaintiff argues the trial court, first in a pretrial ruling by the Civil

Presiding Judge and thereafter by the trial judge, erred in denying her motions

pursuant to Rule 4:26-4 to substitute Eugene Flinn for a fictitious defendant

named in the complaint. We perceive no reversible error in those

determinations.

The complaint asserted that a former, but unnamed, owner of the premises

was responsible for the usage of lead-containing solder in the hot water pipes

and therefore is liable for creating a dangerous condition that harmed plaintiff.

As argued in her eventual motion for substitution, that prior owner was Eugune

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Flinn, individually, who conveyed his ownership interest in the premises to the

present LLC. Naming Flinn as a defendant would have provided plaintiff with

an alternative theory of recovery for the harm caused by the lead exposure. That

theory would not have required plaintiff to prove that Flinn, as the creator of the

hazard, had notice of a patent defect.

In order to obtain the court's permission to substitute a person or entity for

a fictitious party names in the complaint, a plaintiff must (1) "exercise due

diligence in endeavoring to identify the responsible defendants before filing the

original complaint" and (2) "act with due diligence in taking prompt steps to

substitute the defendant's true name, after becoming aware of that defendant's

identity." Baez v. Paulo, 453 N.J. Super. 422, 439 (App. Div. 2018) (emphasis

added).

The trial court soundly determined that plaintiff failed to establish these

requirements. As the Civil Presiding Judge noted, Flinn was easily identifiable

as the premises owner of 908 from a search of public records long before

plaintiff filed the present complaint in 2020 and moved for substitution in 2024.

In fact, plaintiff named Flinn as the owner of 908 in her first lawsuit, which

settled, and his role in installing the hot water system was specifically discussed

in a deposition taken in that lawsuit.

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The court also reasonably took into account the asserted prejudice to Flinn

of late substitution, such as the expiration of the statute of limitations as to him,

the passage of time in locating records, and the need to secure personal counsel

separate from the LLC after discovery and other pretrial activities had already

been undertaken.

Plaintiff has not met her burden to show the trial court erred in denying

substitution and in thereafter denying her pretrial motion in limine for equivalent

relief.

B.

Plaintiff contends the trial judge erred in excluding opinion testimony

from her medical causation expert on two subjects: (1) exposure to lead paint

dust within her apartment (as distinct from the lead disseminated through the

hot water pipes) and (2) reproductive toxicity that allegedly was a factor in

causing her miscarriages. We review these evidentiary rulings with substantial

deference to the trial court as gatekeeper to expert testimony. See N.J.R.E. 702

and 703; In re Accutane Litigation, 234 N.J. 340, 391 (2018). We will not

disturb the trial court's decision unless the ruling demonstrably reflects an abuse

of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008); see also Carey v.

Lovett, 132 N.J. 44, 64 (1993).

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We discern no abuse of discretion with respect to either of these

evidentiary rulings limiting plaintiff's expert proofs. As to the lead paint topic,

plaintiff's medical expert never inspected the apartment and made no direct

observations of lead paint dust. Instead, the medical expert relied on a hearsay

report of a home inspector who was not produced for cross-examination at trial.

The home inspector opined that, given his observation of peeling paint and his

belief about the age of the premises, the paint contained lead. Given the medical

expert's reliance on those hearsay opinions, plaintiff should have produced the

inspector for trial or substantiated those foundational opinions with other

competent evidence. The court did not abuse its discretion in excluding the

medical testimony based on the inspector's embedded hearsay. See N.J.R.E.

808; James v. Ruiz, 440 N.J. Super. 45, 73 (App. Div. 2015).

Likewise, the court did not abuse its discretion in excluding the medical

expert's opinions about reproductive toxicity. Although plaintiff attested to

having multiple miscarriages in her twenties, she did not present her medical

records substantiating those miscarriages and that they occurred after the

baseboard heating system was installed in 1996 when she was the age of thirty -

one. Without such evidence, the causal link between the miscarriages and the

heading system is speculative. Claims must not go to a jury based on

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speculation. Merchants Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.

Super. 556, 563 (App. Div. 2005).

C.

Turning to defendant's cross-appeal, we reject its arguments that the trial

court was obligated to dismiss plaintiff's lawsuit because of (1) the May 2018

settlement of her previous lawsuit and associated release, and (2) the expiration

of the statute of limitations. The pretrial judge who ruled on those issues

soundly rejected defendant's arguments.

The import of the release was specifically remanded by this court for

further consideration in our previous opinion. Gonzalez, slip. op. at 10. On

remand, the trial court carefully considered the language of the release and the

attendant circumstances, and concluded that they did not bar the present cause

of action.

As plaintiff aptly has put it, the first lawsuit concerned, in addition to other

issues pertinent to the conditions of the apartment, the quantity of hot water

being supplied to the apartment, not its quality or any potential lead

contamination. The language of the release as negotiated by counsel in the first

case, does not manifestly exclude the present claims of toxicity.

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The comments of Vermeal--who is not a party to this case--at her 2016

deposition, musing that the water had been "poisoning their family," at best was

a personal lay opinion without substantiation at that time. Likewise, Vermeal's

2011 email to a health inspector expressing concerns about her mother drinking

the water did not waive plaintiff's own rights. The trial court rightly concluded

that neither of Vermeal's comments, nor the terms of the release, barred plaintiff

individually from pursuing the lead toxicity claims she asserts in the present

lawsuit.

Defendant failed to demonstrate that the safety of the water was

"specifically considered at the time the [settlement] transaction was

consummated" in 2018. Bilotti v. Accurate Forming Corp., 39 N.J. 184, 205

(1963). We affirm the trial court's decision.

Relatedly, we likewise sustain the pretrial judge's ruling that plaintiff's

lead toxicity claims are not barred by the two-year statute of limitations for

personal injury actions. The court fairly applied equitable "discovery rule"

principles in concluding that plaintiff could not have reasonably known that she

had a cause of action for the harm against the landlord until years after it was

installed. Mancuso v. Mancuso, 209 N.J. Super. 51, 55 (App. Div. 1986). The

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installation was approved by a building inspector, which would have given a

reasonable tenant an objective impression that the system was safe.

Moreover, plaintiff's symptoms manifested gradually over time, and it was

not until she received medical advice about the potential causal nexus to lead

contamination that she would have sufficient grounds to pursue the present case.

A reasonable person in her shoes would not have reason to believe defendant

was the cause of her injury. Vispisiano v. Ashland Chem. Co., 107 N.J. 416,

432 (1987) (similarly applying these accrual principles in a workplace chemical

exposure case).

D.

Little needs to be said about defendant's argument that we should dismiss

this appeal, post-briefing, because plaintiff filed it two business days after the

forty-five-day deadline prescribed by Rule 2:4-1. The deadline is frequently

relaxed in the interests of justice when, as here, the appeal is filed within thirty

days after the forty-fifth day. See R. 2:4-4. Notably, defendant raised this

argument in opposition to plaintiff's motion for leave to amend her appeal, and

that opposition was rejected by a panel of this court. In addition, we must be

mindful of the general longstanding principle that favors the disposition of cases

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on their merits. Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y.,

58 N.J. 98, 108 (1971).

IV.

To the extent we have not discussed other points raised by the parties, they

lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for a new trial with

proper jury instructions that include the duties owed under the HMDA. The trial

court shall convene a case management conference within thirty days.

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