# THE OZ CONDOMINIUM ASSOCIATION, INC. VS. OZ, LLC (L-2508-14, HUDSON COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · July 17, 2019

URL: https://www.frixlaw.com/law-library/cases/4427985

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 17, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4427985

## How later opinions describe it (automated extraction)

- finding underpinning was an improvement because it "was integral to the house as a structure" and, without it, the Horoszes could not live in the house
- finding complaints asserting CFA claims may be time-barred by the statute of repose
- finding a free-standing electrical transfer switch assembly cabinet was an improvement because it "constituted a permanent part of one of the mechanical systems necessary to the normal function of this particular improvement to the real estate
- finding factual assertions on a motion for summary judgment must be supported by competent evidence

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-4154-17T3

THE OZ CONDOMINIUM
ASSOCIATION, INC.,
a New Jersey not-for-profit
corporation,

Plaintiff-Appellant,

v.

OZ, LLC, and METRO HOMES, LLC,

Defendants-Respondents,

and

DEAN S. GEIBEL, ARAM PAPAZIAN,
MICHAEL H. SCHWERTFEGER,
WATERFRONT MANAGEMENT,
SJ CARNEY, UNITED ASPHALT
COMPANY, H&C ENTERPRISES, LLC,
and 70 ADAMS STREET, LLC,

Defendants.
_____________________________________

Argued May 22, 2019 – Decided July 17, 2019

Before Judges Accurso, Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2508-14.

Bernadette Condon argued the cause for appellant
(Lum, Drasco & Positan, LLC, attorneys; Paul A.
Sandars, III, of counsel and on the briefs; Bernadette
Condon, on the briefs).

Sunny M. Sparano argued the cause for respondents
(Marshall Dennehey Warner Coleman & Goggin,
attorneys; Sunny M. Sparano, of counsel and on the
brief; Ian J. Antonoff, on the brief).

PER CURIAM

The Oz Condominium Association, Inc. (plaintiff or Association), appeals

from the Law Division's February 7, 2018 order, which granted summary

judgment in favor of defendants Oz, LLC (Oz LLC), and Metro Homes, LLC

(Metro Homes), on plaintiff's claims for damages due to water leakage allegedly

resulting from defects in the design, construction, and repair of the Oz

Condominium (Condominium) building. We affirm.

I.

We discern the following material undisputed facts from the record before

the motion court and view the facts and all reasonable inferences therefrom in

A-4154-17T3
2
the light most favorable to plaintiff, the non-moving party. 1 R. 4:46-2(c); Bauer

v. Nesbitt, 198 N.J. 601, 605 n.1 (2009).

The Condominium is a five-story building located in Hoboken that

contains fifty-four residential units and one commercial unit. Plaintiff "is a non-

profit condominium [association] formed pursuant to the New Jersey

Condominium Act." Plaintiff is responsible for the maintenance, management,

and operation of the Condominium's common elements.

Dean S. Geibel is an owner and member of Oz LLC, Metro Homes, and

Waterfront Management (Waterfront). Oz LLC was the registered Sponsor of

the Condominium. Metro Homes was an entity established for the branding and

marketing of Geibel's various projects, including the Condominium. Waterfront

acted as the property manager for the Association from 2004 until the

1
We limit our findings of the undisputed facts to those presented in the
statements of material fact and opposition submitted to the court in accordance
with Rule 4:46-2(a) and (b), and do not consider or rely on information,
evidence, and purported facts that were not presented to the motion court in
accordance with the Rule. See Kenney v. Meadowview Nursing & Convalescent
Ctr., 308 N.J. Super. 565, 573 (App. Div. 1998) (refusing to consider "factual
assertions in [the] appeal that were not properly included in the motion . . . for
summary judgment below" pursuant to Rule 4:46-2). As such, we reject the
parties' reliance on any purported facts that were not included in their Rule 4:46-
2(a) and (b) statements and that are asserted for the first time on appeal, even if
supported by citation to deposition transcripts that were included in the record
presented to the motion court.
A-4154-17T3
3
Association terminated its agreement with Waterfront in 2013 and retained a

new property manager. Nick Colvin served as property manager of the

Condominium from July 2004 through 2009. Colvin testified Metro Homes paid

for some repairs to the Condominium from 2004 through 2008 to 2009.

Pursuant to its bylaws, the Association is governed by a board consisting

of three trustees who were initially appointed by the Sponsor. The bylaws also

provide that within sixty days of the sale of seventy-five percent of the

Condominium units, the Association trustees shall be elected by the unit owners,

excluding the Sponsor. Seventy-five percent of the units were sold on

November 3, 2003, and one hundred percent of the units were closed as of

February 15, 2004. The City of Hoboken issued a temporary certificate of

occupancy (TCO) for the Condominium on March 26, 2004.

Plaintiff filed suit against Oz LLC, Metro Homes, and several individuals

and companies in June 2014 for alleged design and construction deficiencies in

the Condominium's roof and exterior that resulted in water leakage and required

extensive repairs. Plaintiff's fourth amended complaint asserted claims against

Oz LLC and Metro Homes in Counts One through Five, Twelve, and Seventeen

through Twenty-two for negligence, breach of express warranties, breach of

implied warranties, breach of fiduciary duty, equitable reformation of the Master

A-4154-17T3
4
Deed, breach of fiduciary duty (budget), violations of the New Jersey

Condominium Act, N.J.S.A. 46:8B-1 to -38, violations of the Consumer Fraud

Act (CFA), N.J.S.A. 56:8-1 to -210, declaratory judgment regarding the

property's storage room, and budget violations under the Planned Real Estate

Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-21 to -56, as

well as breaches of PREDFDA warranties. 2

Oz LLC and Metro Homes moved for summary judgment, arguing the

statute of repose, N.J.S.A. 2A:14-1.1(a), barred all of plaintiff's claims because

they pertained to the design or construction of the Condominium and were filed

more than ten years after substantial completion of the Condominium. Plaintiff

opposed the motion, arguing the exception to the statute of repose, which

exempts claims against parties "in actual possession and control . . . of the

2
Count Twelve of the fourth amended complaint seeks equitable reformation
of the Condominium's Master Deed to re-compute the commercial unit's
percentage interest in the common expenses as to defendants Oz LLC, Metro
Homes, Geibel and 70 Adams Street, LLC, the current owner of the commercial
unit. Count Twenty-Two seeks a declaratory judgment that the storage room in
the Condominium is not a limited common element of the commercial unit, but
a common element of the Association. Both counts pertain to the rights and
expenses of 70 Adams Street, LLC. The motion court declined to reform the
Master Deed or render a declaratory judgment regarding the storage space.
Plaintiff does not challenge on appeal the court's order dismissing these counts
as to Oz LLC and Metro Homes.

A-4154-17T3
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improvement at the time the defective and unsafe condition . . . constitutes the

proximate cause of the . . . damage," N.J.S.A. 2A:14-1.1(a), applied because

Geibel's companies—Oz LLC, Metro, and Waterfront—together exercised de

facto control over the Condominium and "were running the ship." 3 Plaintiff also

argued defendants performed repairs on the common elements and, as a result,

the limitations period under the statute of repose began anew.

The court heard oral argument, permitted the parties to submit

supplemental briefs, issued an order granting summary judgment to Oz LLC and

Metro Homes, and subsequently filed a written opinion. The court found the

undisputed facts established defendants are separate entities, the statute of

repose barred all of plaintiff's claims, and plaintiff failed to establish the

requisite level of possession or control by defendants necessary to invoke the

exception to the statute of repose. N.J.S.A. 2A:14-1.1(a). With regard to

plaintiff's claim that repairs to the Condominium triggered a new ten-year

limitations period under the statute of repose, the court found that, regardless of

when a roof repair was made and whether it was an "improvement to real

3
Waterfront was not a party to the summary judgment motion and was
represented by separate counsel from that of Oz LLC and Metro Homes.
A-4154-17T3
6
property" under the statute, it was done with the Association board's approval.

Plaintiff appealed.

II.

We review a grant of summary judgment de novo, determining whether

there are any genuine issues of material fact when the evidence is viewed in the

light most favorable to the non-moving party. Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 38-41 (2012). Summary judgment is appropriate when there is no

genuine issue of material fact, and the evidence "is so one-sided that one party

must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252

(1986)). Provided there are no genuine issues of material fact, we review issues

of law de novo. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).

We have carefully reviewed the record and, based on the parties' Rule

4:46-2 submissions, conclude there are no genuine issues of material fact. We

consider the issues of law de novo. Ibid. Plaintiff makes three arguments on

appeal: (1) the statute of repose does not bar plaintiff's claims against Oz LLC

and Metro Homes because the exception to the statute applies; (2) the statute of

repose does not bar plaintiff's claims relating to the repairs performed by Oz

A-4154-17T3
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LLC and Metro Homes; and (3) the statute of repose does not bar plaintiff's

claims under the PREDFDA, CFA, and New Jersey Condominium Act.

We begin by addressing whether the statute of repose applies in the first

instance. "[T]he statute of repose imposes a ten-year limit upon actions against

parties responsible for the design, planning, supervision or construction of

improvements to real property." Town of Kearny v. Brandt, 214 N.J. 76, 92

(2013). The statute provides that:

No action, whether in contract, in tort, or otherwise, to
recover damages for any deficiency in the design,
planning, surveying, supervision or construction of an
improvement to real property . . . arising out of the
defective and unsafe condition of an improvement to
real property, nor any action for contribution or
indemnity for damages sustained on account of such
injury, shall be brought against any person performing
or furnishing the design, planning, surveying,
supervision of construction or construction of such
improvement to real property, more than [ten] years
after the performance or furnishing of such services and
construction. This limitation shall serve as a bar to all
such actions, both governmental and private, but shall
not apply to actions against any person in actual
possession and control as owner, tenant, or otherwise,
of the improvement at the time the defective and unsafe
condition of such improvement constitutes the
proximate cause of the injury or damage for which the
action is brought.

[N.J.S.A. 2A:14-1.1(a).]

A-4154-17T3
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The ten-year limitations period in the statute of repose "generally

commences one day after issuance of the certificate of substantial completion

for the project." State v. Perini Corp., 221 N.J. 412, 427 (2015). Substantial

completion typically occurs "when the certificate of occupancy [is] issued and

the architect certifie[s] to the owner that [the] building [is] substantially

completed." Brandt, 214 N.J. at 94 (quoting Russo Farms, Inc. v. Vineland Bd.

of Educ., 144 N.J. 84, 117 (1996)).

The undisputed material facts establish that the Condominium was

substantially complete no later than March 27, 2004, the day after the City of

Hoboken issued a TCO. See ibid. Plaintiff filed its initial complaint on June 3,

2014, more than ten years later and outside the time allowed by the statute of

repose. See id. at 92. The motion court "correctly concluded that plaintiff had

no actionable claim . . . if such claim could be considered as 'arising out of any

defect or unsafe condition of an improvement to real property' or because of 'any

deficiency in the design, planning, supervision or construction' of an

improvement to real property." Brown v. Jersey Cent. Power & Light Co., 163

N.J. Super. 179, 187 (App. Div. 1978) (quoting N.J.S.A. 2A:14-1.1). "[T]he

statute is a complete bar to plaintiff's claim to the extent that the claim arose out

of the creation of the structure itself." Id. at 188. Therefore, the statute of repose

A-4154-17T3
9
bars plaintiff's claims in Counts One, Two, Three, Four, Five, Seventeen,

Eighteen, and Twenty-one, which seek to recover damages arising out of defects

in the original "design, planning, surveying, supervision or construction" of the

Condominium. N.J.S.A. 2A:14-1.1(a).

Plaintiff argues that Oz LLC and Metro Homes' conduct falls within the

exception to the statute of repose such that the statute does not bar any of

plaintiff's claims. "The statute of repose does not protect parties who are 'in

actual possession and control [of the improvement] as owner, tenant, or

otherwise' at the time that the defective and unsafe condition causes the injury

or damage at issue." Brandt, 214 N.J. at 92 n.5 (alteration in original) (quoting

N.J.S.A. 2A:14-1.1(a)). Therefore, to fall within the exception, plaintiff was

required to establish that Oz LLC and Metro Homes were in possession and

control of the Condominium at the time the defective conditions caused the

damage at issue. The undisputed facts establish that the elected Association

board took control of the Condominium from Oz LLC, the Sponsor, within sixty

days of the sale of seventy-five percent of the units on November 3, 2003, and

that damages requiring repair began in 2004. Plaintiff argues Oz LLC and Metro

Homes were in actual possession of the Condominium as owners of the

A-4154-17T3
10
commercial unit and that they controlled the Condominium through Waterfront,

which plaintiff contends is indistinguishable from Oz LLC and Metro Homes.

We first address plaintiff's contention that Oz LLC and Metro Homes were

in actual possession of the Condominium as owners. Plaintiff argues Oz LLC

and Metro Homes "maintained continued possession and control over the project

through their ownership of the commercial unit." Plaintiff has failed to present

any competent evidence, pursuant to Rule 4:46-2, that Oz LLC or Metro Homes

was an owner or tenant of the commercial unit when the defective conditions

caused the damage at issue. Plaintiff alleged in its counterstatement of material

facts that "Dean Geibel owned the commercial space at the [Condominium] from

2003 through at least 2010." Plaintiff did not allege in its counterstatement of

material facts below that Oz LLC or Metro Homes owned the commercial unit.

Moreover, plaintiff's assertion as to Geibel's unit ownership is untethered to a

citation to any competent evidence in the record as required by Rule 4:46-2(b).

We cannot conclude that Oz LLC and Metro Homes were in "actual possession

and control" of the Condominium at the time the defective conditions caused the

damages at issue, N.J.S.A. 2A:14-1.1(a), because the record lacks competent

evidence supporting the claim, see Globe Motor Co. v. Igdalev, 225 N.J. 469,

A-4154-17T3
11
484 (2016) (finding factual assertions on a motion for summary judgment must

be supported by competent evidence).

We are also not persuaded by plaintiff's remaining argument for applying

the exception to the statute of repose, that Oz LLC and Metro Homes maintained

actual possession and control of the Condominium through Waterfront, the

Condominium's former property manager, which was not a party to the summary

judgment motion from which plaintiff appeals and is not a party to this appeal .

Plaintiff claims there is a genuine issue of material fact regarding what

roles Oz, Metro Homes and Waterfront had in the construction of the

Condominium and whether they exercised de facto control over the

Condominium. The parties' Rule 4:46-2 submissions, however, do not present

genuine fact issues. It is undisputed that Oz LLC was the Sponsor of the

Condominium, Metro Homes was Geibel's branding and marketing firm, and

Waterfront was the property manager of the Condominium from 2004 to 2013.

In addition, granting all inferences in plaintiff's favor, the Rule 4:46-2

submissions do not present a genuine fact issue as to whether Oz LLC and Metro

Homes exerted "de facto control" over the Condominium. The pertinent facts

establish only that Oz LLC was the Condominium's Sponsor and turned control

of the Condominium over to the elected Association board following the sale of

A-4154-17T3
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seventy-five percent of the units in November 2003, and Metro Homes paid for

some repairs to the Condominium from 2004 through 2008 or 2009. Neither

these facts nor any reasonable inferences that can be drawn therefrom establish

that either Oz LLC or Metro Homes possessed and controlled the Condominium.

Plaintiff also argues we should find that Oz LLC and Metro Homes

maintained possession and control of the Condominium through "their

engagement of a management company[, Waterfront,] owned by the same

[principals] and indistinguishable from [Oz LLC and Metro Homes] . . . to serve

as manager of the Association from 2004 through 2013." Plaintiff's claim is

founded on two assumptions: (1) Oz LLC and/or Metro Homes are

"indistinguishable" from Waterfront and therefore legally responsible for

actions taken by Waterfront, and (2) Waterfront had actual possession and

control of the Condominium.

While the record shows that Geibel was an owner and member of Oz LLC,

Metro Homes, and Waterfront, it does not support a finding that Waterfront was

"indistinguishable" from Oz LLC or Metro Homes. Such a finding, that

Waterfront was "a mere instrumentality of" Oz LLC and Metro Homes, State v.

Ventron Corp., 94 N.J. 473, 500 (1983) (citation omitted), and "had no separate

existence," requires piercing the corporate veil, id. at 501. As the party seeking

A-4154-17T3
13
to pierce the corporate veil, plaintiff bears the burden of establishing the

corporate form should be disregarded. See Richard A. Pulaski Constr. Co. v.

Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008). To do so, plaintiff must

prove that Waterfront was "a mere instrumentality of" Oz LLC, Metro Homes,

or both, Ventron, 94 N.J. at 500 (citation omitted); Oz LLC or Metro Homes "so

dominated [Waterfront] that it had no separate existence but was merely a

conduit" for them, id. at 501; and that Oz LLC or Metro Homes "abused the

privilege of incorporation by using [Waterfront] to perpetrate a fraud or

injustice, or otherwise to circumvent the law," ibid. Granting plaintiff the

benefit of all reasonable inferences, the record before us is wholly insufficient

to meet this standard. Plaintiff presents unsupported assertions in its brief on

appeal, but failed to present competent evidence to the motion court sufficient

to support its burden to pierce the corporate veil. For this reason alone,

plaintiff's claim for application of the exception to the statute of repose fails.

In addition, even if plaintiff were able to pierce the corporate veil between

Oz LLC and/or Metro Homes and Waterfront, for the exception to the statute of

repose to apply, plaintiff must present evidence that Waterfront had actual

possession and control of the Condominium. Apart from identifying Waterfront

as a former "property manager," plaintiff presented no competent evidence in

A-4154-17T3
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the summary judgment record describing Waterfront's actions, authority, or

otherwise demonstrating that Waterfront was in possession and control of the

Condominium. See R. 4:46-2(b). Thus, there is no basis to conclude the

exception to the statute of repose applies. The record simply lacks competent

evidence showing Waterfront was "in actual possession and control . . . of the

improvement at the time the defective and unsafe condition . . . constitute[d] the

proximate cause of the injury or damage for which the action is brought."

N.J.S.A. 2A:14-1.1(a).

The evidentiary record is insufficient to permit a finding that Oz LLC and

Metro Homes maintained continued possession of and control over the

Condominium. We conclude that the exception to the statute of repose is

inapplicable, and the statute of repose bars plaintiff's claims in Counts One,

Two, Three, Four, Five, Seventeen, Eighteen, and Twenty-one, which seek to

recover damages arising out of defects in the original "design, planning,

surveying, supervision or construction" of the Condominium. N.J.S.A. 2A:14 -

1.1(a).

We next address plaintiff's contention that the statute of repose does not

bar its claims relating "to repairs undertaken and paid for by [Oz LLC and Metro

Homes] . . . because such actions on the part of [Oz LLC and Metro Homes]

A-4154-17T3
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effectively toll the [s]tatute of [r]epose." Plaintiff relies on Horosz v. Alps

Estates, Inc., 136 N.J. 124 (1994), which states:

When a builder-developer performs repairs that
constitute an improvement to real property after the
initial construction has been completed, the owner has
ten years from completion of the repair work to file an
action against the builder-developer for defects relating
solely to that repair work. With respect to defects
unrelated to such repairs (defects resulting from the
original construction), however, N.J.S.A. 2A:14-1.1
runs from the date of the completion of the initial
construction of the home.

[Id. at 133 (emphasis added).]

An "improvement to real property" is "an integral addition or alteration"

without which the building "could not be used for its intended purpose." Id. at

130; see, e.g., id. at 131 (finding underpinning was an improvement because it

"was integral to the house as a structure" and, without it, the Horoszes could not

live in the house); Wayne Twp. Bd. of Educ. v. Strand Century, Inc., 172 N.J.

Super. 296, 300 (App. Div. 1980) (holding installation of a dimmer panel was

an improvement because the panel was required for the new auditorium to

function as intended); Brown, 163 N.J. Super. at 195-96 (finding a free-standing

electrical transfer switch assembly cabinet was an improvement because it

"constituted a permanent part of one of the mechanical systems necessary to the

normal function of this particular improvement to the real estate).

A-4154-17T3
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Oz LLC and Metro Homes contend that, unlike the repairs at issue in

Horosz, "the repairs in this case do not constitute separate improvements to real

property and therefore do not serve as a start date for calculation of the statute

of repose." They also argue plaintiff has not established that Oz LLC and Metro

Homes performed any post-construction repairs at the Condominium.

In its fourth amended complaint, plaintiff claimed Waterfront, but not Oz

LLC or Metro Homes, made defective repairs to the Condominium in 2013.

Plaintiff's allegations in the complaint against Oz LLC and Metro Homes refer

only to designing, constructing, supervising, or installing in the or iginal

construction. Moreover, the undisputed facts show only that Metro Homes paid

for some repairs to the Condominium from 2004 through 2008 or 2009, but not

in 2013.

Viewing all inferences in plaintiff's favor, the undisputed facts do not

establish that Oz LLC performed any repairs to the property after the initial

construction, do not detail the repairs for which Metro Homes paid, and do not

establish that any of the repairs for which Metro Homes paid constituted an

"improvement to real property." See Horosz, 136 N.J. at 133. In its brief,

plaintiff cites to deposition testimony regarding various alleged repairs, but did

not present any competent evidence to the motion court supporting its claims in

A-4154-17T3
17
accordance with Rule 4:46-2.4 Thus the summary judgment record is devoid of

any undisputed facts or evidence establishing that Oz LLC or Metro Homes

made an improvement to real property sufficient to support the running of the

statute of repose from the date of a repair. R. 4:46-2; Kenney, 308 N.J. Super.

at 573.

In addition, while "less-significant alterations and additions" than

underpinning a sinking foundation may constitute an "improvement to real

property," Horosz, 136 N.J. at 129, to trigger a new ten-year limitations period

under the statute of repose beginning at the date of repair, the defect at issue

must result solely from the repair, not the original construction, id. at 132.

Plaintiff failed to present evidence and undisputed facts establishing that the

alleged defects, for which it seeks damages, "relat[e] solely to [the] repair work,"

as opposed to the original construction. Id. at 133. Thus, the summary judgment

record does not permit a finding that Oz LLC or Metro Homes performed repairs

4
We again note that plaintiff incorrectly relies on deposition transcripts to
support purported facts that were never presented to the motion court in
accordance with Rule 4:46-2(a) and (b). Plaintiff's attempted reliance on such
purported facts is rejected because it ignores the Rule's clear requirements,
constitutes an improper assertion of purported facts for the first time on appeal
and would unfairly deprive defendant of the opportunity to contest the facts in
accordance with the established and requisite procedure under the Rule.
A-4154-17T3
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constituting improvements to real property triggering the running of the ten-year

limitations period under the repair exception in the statute of repose.

Plaintiff also argues the statute of repose does not bar its claims under the

PREDFDA (Counts Five and Seventeen), CFA (Count Twenty-one), and New

Jersey Condominium Act (Counts Nineteen and Twenty). Plaintiff contends Oz

LLC and Metro Homes violated the PREDFDA by utilizing a public offering

statement that failed to disclose construction defects once they became known

to defendants and by preparing an inadequate budget for the management,

operation and maintenance of the Condominium because of the defects.

Similarly, plaintiff argues Oz LLC and Metro Homes violated the CFA "by

falsely and fraudulently misrepresenting that the Condominium and common

elements were free from faults and defects" and failing to disclose building

defects. Plaintiff also argues Oz LLC and Metro Homes violated the New Jersey

Condominium Act and committed breaches of fiduciary duties thereunder by

failing to turn over required documents to the elected Association board, by

hiring Waterfront for an indefinite period of time, and by maintaining de facto

control over the Association through 2013.

Plaintiff's claims under these acts are barred for two reasons. First, the

statute of repose bars plaintiff's PREDFDA and CFA claims. Second, plaintiff

A-4154-17T3
19
failed to assert its claims within the limitations periods associated with these

causes of action.

Plaintiff's PREDFDA and CFA claims are barred because the plain

language of the statute of repose precludes any "action, whether in contract, in

tort, or otherwise, to recover damages for any deficiency in the design, planning,

surveying, supervision or construction of an improvement to real property, [and]

any action for contribution or indemnity for damages sustained on account of

such injury . . . more than [ten] years after the performance or furnishing of such

services and construction." N.J.S.A. 2A:14-1.1(a) (emphasis added). Plaintiff's

PREDFDA and CFA claims, as stated in the fourth amended complaint, seek to

recover damages sustained on account of defects in the original design and

construction of the Condominium. See Brown, 163 N.J. Super. at 187-88. We

have also previously determined statutory claims are subsumed by the statute of

repose. See Stix v. Greenway Dev. Co., 185 N.J. Super. 86, 90 (App. Div. 1982)

(finding complaints asserting CFA claims may be time-barred by the statute of

repose). We therefore find the statute of repose bars plaintiff's PREDFDA and

CFA claims.

Plaintiff's PREDFDA, CFA, and New Jersey Condominium Act claims

are also time-barred under their respective statutes of limitations.

A-4154-17T3
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The PREDFDA provides that "[a] person may not recover under this

section," which prescribes liability for a developer who gives false statements

of material fact or omits material facts in its public offering statement, "in

actions commenced more than [six] years after his first payment of money to the

developer in the contested transaction." N.J.S.A. 45:22A-37(d). One hundred

percent of the units in the Condominium were closed as of February 15, 2004,

more than six years prior to plaintiff's filing of the June 2014 complaint.

Plaintiff's PREDFDA claims are thus time-barred under N.J.S.A. 45:22A-37(d).

An action for fraud under the CFA "shall be commenced within [six] years

. . . after the cause of any such action shall have accrued." N.J.S.A. 2A:14-1;

see also Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 170 (App. Div.

2007). Generally, "a cause of action will be held not to accrue until the injured

party discovers, or by an exercise of reasonable diligence and intelligence

should have discovered that he may have a basis for an actionable claim." Nester

v. O'Donnell, 301 N.J. Super. 198, 204 (App. Div. 1997) (quoting Lopez v.

Swyer, 62 N.J. 267, 272 (1973)). Plaintiff seeks damages for defects in the

original design and construction of the Condominium. Pursuant to the

Association bylaws, an elected board of trustees controlled the Association

within sixty days of November 3, 2003, when seventy-five percent of the

A-4154-17T3
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Condominium's units were sold, and the undisputed facts establish repairs were

made to the property beginning in 2004, evidencing problems with the newly

constructed Condominium's design and construction. Plaintiff also alleged in

its fourth amended complaint that after elected unit owners "took statutory

control of the Board of Trustees after [Oz LLC] . . . closed on the sale of the

seventy-five . . . percent of the units to Members . . . the Association became

aware of various deficiencies in the design and construction of the [c]ommon

[e]lements at the [Condominium]." Thus, plaintiff was or should have been

aware that it may have an actionable claim as early as 2004, ten years before it

filed the complaint, and we find plaintiff's CFA claims are barred under the six-

year statute of limitations.

Claims under the New Jersey Condominium Act are also subject to a six-

year statute of limitations. N.J.S.A. 2A:14-1; The Palisades at Ft. Lee Condo.

Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017). Plaintiff's

allegations regarding Oz LLC and Metro Homes' failure to provide required

documents to the Association board and their hiring of Waterfront concern

conduct that took place in 2003 and 2004, ten years before the complaint was

filed and well outside the six-year statute of limitations. We also note that the

summary judgment record is bereft of competent evidence supporting plaintiff's

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assertions that defendants failed to provide documentation to the board,

improperly contracted Waterfront, 5 or, as discussed in detail above, maintained

de facto control over the Association through 2013. For these reasons, we find

plaintiff's claims under the New Jersey Condominium Act are also barred.

We reject plaintiff's arguments and affirm the court's grant of summary

judgment to Oz LLC and Metro Homes on all counts (Counts One through Five,

Twelve, and Seventeen through Twenty-two) of the fourth amended complaint

asserted against them.

Affirmed.

5
Plaintiff argues, without citation to the competent record evidence, that Oz
LLC and Metro Homes unilaterally entered into a contract with Waterfront for
administration and management of the Association and that service contract
continued without ratification from an independent board for more than eight
years in violation of the New Jersey Condominium Act, N.J.S.A. 46:8B-12.2.
These asserted facts were not presented to the motion court in plaintiff's counter
statement of material facts or its response to Oz LLC and Metro Homes'
statements of material fact in accordance with Rule 4:46-2. We will not consider
or rely on these purported facts because plaintiff failed to present these
allegations to its adversary and the motion court in accordance with the Rule.
See Kenney, 308 N.J. Super. at 573.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4427985. Public record. Not legal advice.