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The Supreme Court of New Jersey affirmed the Appellate Division's affirmation of the trial court's denial of a third party defendant surveyor seeking a dismissal of the third-party complaint alleging a failure of third-party plaintiff to comply with the

January 1, 2010
Highland Lakes Country Club and Community Association, Plaintiff, v. Frank W. Nicastro, Sr. and Lisa Ann Nicastro, Defendants/Third-Party Plaintiffs-Respondents, v. Suburban Consulting Engineers, Inc. and Martin Sikorski, P.L.S.

 

The neighbor disputed the boundary between the parties' properties. The owners defended by relying on the accuracy of the survey they obtained from the surveyor. The owners’ third-party complaint did not allege that the surveyor's work was inaccurate but sought indemnification and contribution. The intermediate appellate court held that application of the Affidavit of Merit statute would be inconsistent with its overall purposes under the circumstances. The owners' claims against the surveyor were contingent on the neighbor’s proof that the boundary line on the survey was incorrect. As the neighbor had not yet produced evidence to establish the surveyor’s error, no independent claim by the owners of professional negligence, contribution, or indemnification had accrued. If the neighbor produced evidence of the surveyor’s error, the owners' claim for professional negligence would accrue and a different analysis might have been required. The New Jersey Supreme Court rejected the surveyor’s suggestion that the owners defer their claims against it until conclusion of the Action between them and the neighbor, as this would violate the entire controversy doctrine by allowing piecemeal litigation.

 

Case Law Alert - 1st Qtr 2010

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