Port Imperial Condominium Association, Inc., Plaintiff-Appellant, v. K. Hovnanian Port Imperial Urban Renewal, Inc., Defendant-Appellant, et al., Decided May 2, 2011 (approved for publication) Docket A-1013-10T1

Both defective and unsafe conditions are to be present in order for a party to benefit from the 10-year statute of repose.

The plaintiff condominium association sued the defendant subcontractors, alleging their work on the condominium project was defective and asserting claims of negligence, strict liability and willful and wanton disregard for human safety. The trial court granted summary judgment in favor of the defendant subcontractors under the statute of repose, N.J.S.A. § 2A:14-1.1, which precluded construction defect claims against subcontractors who complete improvements to real property more than 10 years before the filing of complaints against them, regardless of when the injury occurred or the cause of action otherwise accrued. The plaintiff appealed. The appellate court affirmed the trial court. For § 2A:14-1.1 to apply, these improvements had to have resulted in a defective and unsafe condition that was hazardous to the well being and safety of persons or property. The plaintiff argued on appeal that because an "unsafe" condition did not exist at the condominium complex, § 2A:14-1.1 did not apply. The appellate court rejected the plaintiff's contention that ongoing settlement of buildings into the soil created merely expensive and inconvenient repairs. It found that the nature of the allegations and the supporting evidence substantiated the finding that the defendants' improvements caused both functional impairment, with consequential economic losses, and a hazardous condition, qualifying the defendants for protection under § 2A:14-1.1. This opinion affirms the need for both defective and unsafe conditions to be present in order for a party to benefit from the 10-year statute of repose but suggests that unsafe conditions may be found to exist based upon the nature of the allegations even if the conditions are not explicitly alleged to be unsafe.

Case Law Alert - 3rd Qtr 2011