Port Imperial Condominum Ass’n, Inc. v. K. Hovnanian Port Imperial Urban Renewal, Inc., 419 N.J. Super. 459 (App. Div. 2011). The statute of repose, N.J.S.A. 2A:14-1.1, prevents a cause of action for “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 … more than 10 years after the furnishing of such services and construction.” This opinion by Judge Parrillo, which affirms summary judgment for subcontractors on a large development project, contains an extensive summary of the history and parameters of the statute of repose.
The decision turned on whether the construction by the subcontractor defendants resulted in an unsafe and defective condition. This was because “[a]lthough broadly construed by the courts, the Legislature has limited the statute of repose so that only improvements to real property ‘that result in unsafe and defective conditions implicate the statute.'” Negligent improvements to property that “create merely expensive and inconvenient repairs” do not qualify for the protection of the statute of repose.
The plaintiff condominium association argued that no “unsafe” condition existed at the project. The Law Division disagreed, and the Appellate Division affirmed. Plaintiff’s own amended complaint alleged that defendants showed “willful and wanton disregard for the safety of [the association] and its members” in defendants’ allegedly defective construction work Plaintiff also asserted, in a strict liability Count, that the condominium units were “unreasonably dangerous to unit owners and to personal property.” Similarly, the Association’s expert opined that the units and common elements were “not fit for their intended use.” Thus, plaintiff’s newly-asserted position that there was no safety issue failed.
Plaintiff also complained that summary judgment was granted before the end of discovery. Judge Parrillo rejected that argument, noting that plaintiff had not demonstrated “how further discovery will patently change the outcome.”