New Jersey Supreme Court Clarifies Statute of Limitations in Construction Defect Cases

September 27, 2017 | No Comments
Posted by Catherine Bick

Co-authored by Timothy DeHaut

In The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, ___ N.J. ___ (2017), the plaintiff was the Condominium Association that brought suit based upon defects in the condominium building after the Association took over control from the Sponsor and after the Association obtained its own engineering report.  Summary judgment on statute of limitations grounds was obtained by the defendants in the trial court; the Appellate Division reversed.  The New Jersey Supreme Court held that a cause of action for construction defects, for statute of limitations purposes, accrues when any owner in the chain of title “first knows or reasonably should know of the actionable claim against an identifiable party.”  A plaintiff’s case must be commenced within six years after a claim “accrues.”  The general rule is that accrual begins upon substantial completion of the project.  However, under the “discovery rule” the statute begins to run from when a plaintiff “knows or reasonably should know of an actionable claim against an identifiable defendant.”  The Court has now made it clear that if an “earlier owner knew or should have known of a cause of action against an identifiable defendant, then the accrual clock starts then.”  “The statute of limitations clock is not reset every time property changes hands.”

Thus, the plaintiff Association in The Palisades took title subject to the rights of the prior two owners – the entity that operated the building as apartments and the second entity which converted the units to condominiums.  The second owner had obtained an engineering report during its ownership.  Based on the facts before it, the Court remanded the case for a so-called Lopez hearing, in order to determine when the Association’s claims accrued.  The Court made it clear that it is the plaintiff’s burden, for the purposes of the Lopez hearing, to prove that its claims accrued sometime later than substantial completion. Read more


Recent Developments in Flak Jacket Protection Issues

September 27, 2017 | No Comments
Posted by Timothy DeHaut

Co-authored by Catherine Bick

Developers and builders who build homes with structural joists manufactured by the Weyerhaeuser Company need be aware of certain issues with Weyerhaeuser’s TJI® Joists with Flak Jacket® Protection.  Weyerhaeuser has recently announced that due to a recent formula change, the Flak Jacket coating is defective and emits, or “off-gases”, formaldehyde, a chemical that is hazardous at certain levels.  The issue, Weyerhaeuser stated, was isolated to Flak Jacket products manufactured after December 1, 2016.

These joists have been installed in homes across the country.  According to the New Jersey Department of Community Affairs (“DCA”), Weyerhaeuser has indicated that there are 320 homes in New Jersey that are affected; all are in various stages of construction.  Anectodal evidence suggests there may be more. Read more


COURT REJECTS AUTOMATIC APPLICATION OF “TIME OF FILING” RULE IN BUILDER’S REMEDY LITIGATION

December 15, 2016 | No Comments
Posted by Paul Schneider

Developers who bring builder’s remedy lawsuits under New Jersey’s Mount Laurel doctrine often cite the so-called “time of filing” rule.  The contention is that in determining whether a municipality is compliant with its affordable housing obligations, the court must base its decision on the zoning ordinances in effect at the time the developer initially filed its lawsuit, and disregard actions the municipality may have taken to achieve compliance after the lawsuit was filed.  The time of filing rule finds support in earlier cases such as Toll Brothers, Inc. vs. Township of West Windsor, and Mt. Olive Complex v. Township of Mt. Olive.

In a December 14, 2016 decision, the Appellate Division of Superior Court rejected the automatic application of the time of filing rule.  In Hollyview Development Corporation I vs. Township of Upper Deerfield, the developer filed its lawsuit in 1998.  For several years, Hollyview did little to actively pursue the case.  In 2013, Hollyview filed a motion for summary judgment, relying, in part, on the claim that the Township was not compliant with its affordable housing obligations back in 1998, when the case was filed.  The Township claimed that in deciding the motion, the court should consider what the Township had done in the interim to provide affordable housing.  Hollyview was unable to show that the Township had taken these actions as a result of Hollyview’s lawsuit. Read more


Employee Theft

October 6, 2016 | No Comments
Posted by Sean Regan

If your employee steals customers’ checks received for payment, what do you do? Fire her. Call the police. Then call your insurer. You should have employee fidelity coverage. After that, call your lawyer. Someone may have to pay you back other than the fired employee and your insurer.

That someone is the bank that cashed the checks for the employee that stole the customers’ payments. Recently, Sean E. Regan, Esq. of Giordano, Halleran & Ciesla, P.C. was able to recover over $300,000 from the depository bank when an employee stole customer payments from her employer, fraudulently endorsed the employer’s name, and deposited them into her personal bank account. Another $100,000 was recovered from the CGL insurer based upon the rider insuring against employee theft. Read more


Three’s A Crowd: Dissociation Under New Jersey’s RULLCA

February 3, 2016 | No Comments
Posted by Matthew Fiorovanti

Friends get together to discuss a business idea.  The concept sounds great, and everyone anticipates a smooth ride to a successful business and lasting partnership.  The friends decide to form an LLC, but do not engage counsel or enter into a specific, detailed operating agreement, instead choosing a “template” after a Google search.    The partners do not consider what happens if things do not go as planned, since they are convinced that this will not be the case.  Unfortunately, while the business may become successful, the relationship among the partners may change for a host of unanticipated reasons.  When things go bad and disputes arise among members of an LLC, the members – quite often friends or even family members – are faced with how to resolve the dispute without destroying the business. Read more


GH&C Obtains Bench Trial Verdict In Favor Of Client In Dishonored Bank Drafts Litigation

January 22, 2016 | No Comments
Posted by Justin M. English

Justin M. English recently obtained a bench trial verdict in favor of a GH&C client (the “Client”) following a trial in Superior Court in Middlesex County, New Jersey. The Client was a major New Jersey provider of senior housing and supportive services who was sued by Robert J. Triffin (“Triffin”), a litigant who has filed thousands of lawsuits arising out of the practice of buying dishonored checks, becoming a holder in due course, and then commencing litigation in order to collect the proceeds of the check. In fact, since 2004 Triffin has filed more than 15,000 lawsuits as an assignee of dishonored checks in New Jersey courts alone. See Triffin v. Am. Intern. Grp., Inc., 372 N.J. Super. 517, 521 n.2 (Super. Ct. App. Div. 2004) (At oral argument on appeal, Triffin indicated having filed over 15,000 lawsuits as assignee of dishonored checks.).

To read the full article, please click here.

 


GH&C Obtains Dismissal Of Claim For Specific Performance Of Claimed $45 Million Contract

December 24, 2015 | No Comments
Posted by Michael Canning

Michael J. Canning, Esq. and Christopher J. Marino, Esq. recently obtained the dismissal of a claim for specific performance of an alleged contract for the sale of real property for the amount of $45 million.

For the full article, click here.


GH&C Obtains Summary Judgment In $9 Million Inadequate Security Case

December 24, 2015 | No Comments
Posted by Michael Canning

Michael J. Canning, Esq. and Matthew N. Fiorovanti, Esq. recently obtained the dismissal of a $9 million claim for inadequate security and premises liability against the firm’s client, Pilot Flying J, the largest operator of travel centers and travel plazas in North America.

For the full article, click here.


Giordano, Halleran & Ciesla Co-Cousel on $5.4 Million Judgment in Insurance Coverage Case

August 19, 2015 | No Comments
Posted by Michael Canning

Giordano, Halleran & Ciesla was co-counsel along with the Chicago law firms of Anderson + Wanca and Bock & Hatch, LLC in obtaining a judgment in the amount of $5,484,027 in an insurance coverage case in the Superior Court of New Jersey, Law Division, Monmouth County in a jury trial presided over by the Honorable Katie A. Gummer, J.S.C.

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GH&C Attorneys Win Music Industry Trademark Case

August 11, 2015 | No Comments
Posted by Christopher Marino

After a year-long battle, national touring and recording artist Dan Matthews and his American alternative rock band, “The Black Clouds,” can finally get their name back. Giordano, Halleran & Ciesla attorneys, led by Christopher J. Marino, Esq., succeeded in cancelling a nearly identical trademark registration obtained by a competing band.

To read the full article, click here.