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Horosz v. Alps Estates6/13/1994
The opinion of the Court was delivered by GARIBALDI, J.
This appeal concerns the narrow question whether N.J.S.A. 2A:14-1.1 prohibits a homeowner from recovering against a builder-developer for that builder's subsequent repair work. Specifically, we address whether the ten-year statute of repose bars a lawsuit brought ten years after the initial construction of the house, but within ten years of the builder-developer's substantial repairs to the house.
I
On June 14, 1977, plaintiffs, Carl and Mary Horosz, purchased a home at 19 Stagg Road, Wayne, New Jersey, from defendant Alps Estates, Inc. ("Alps"), a builder-developer. In 1981, the Horoszes experienced problems with the house. In particular, they felt cold air coming into the house from the washroom in the right rear of the dwelling. As a result, the Horoszes contacted Jacob Kurzer, a representative of Alps.
Alps began repair work on the house in October 1982. Thomas E. Tully, a "soil engineer," performed "test borings" of the soil underneath the right rear of the house. Tully discovered that that section of the house had been constructed on fill, thereby causing the house to sink. To prevent the house from sinking further, Alps inserted concrete and steel in the ground under that part of the house and replaced the foundation. Alps did not insert concrete and steel under the entire house. The Horoszes claim that they asked Alps to underpin the entire house but that Alps assured them that shoring up the fill under part of the house was sufficient to prevent continued sinkage. Alps completed that "underpinning" process on January 26, 1983, and all related work by April 25, 1983, and did not charge the Horoszes for the work.
The Horoszes and Alps did not communicate further until January 1989 when the Horoszes once again felt cold air blowing through the house. Mrs. Horosz discovered that the wind was coming from a bedroom window that would not close because one side of the window frame tilted below the other. Mrs. Horosz also noticed that the garage doors were not properly aligned and that the floors in two of the bedrooms slanted downward from right to left.
The Horoszes again communicated with Jacob Kurzer, the Alps representative, and he examined the premises on May 3, 1989. According to the Horoszes, Kurzer promised to have the house inspected and to provide a report within two weeks. Alps, however, did nothing further.
The house continued to deteriorate. The Horoszes hired a company to jack-up the house and to excavate to determine the source of the problem. The excavation revealed that the source of the sinkage was fill under the foundation. The excavators discovered the fill a few feet away from the spot at which Alps had stopped its work in April 1983.
The Horoszes initiated this lawsuit on September 28, 1989, alleging that Alps had negligently repaired the house in 1983, knowingly concealed a material fact, violated the Consumer Fraud
Act, and had breached express and implied warranties. Alps' answer included a defense based on N.J.S.A. 2A:14-1.1, the ten-year statute of repose.
Prior to trial, the trial court, after a hearing on the applicability of N.J.S.A. 2A:14-1.1, ruled that the statute applied and that the ten years had begun to run when title passed from Alps to the Horozes in 1977. The trial court therefore dismissed the complaint.
On the Horoszes' appeal, the Appellate Division reversed and remanded the case for trial. 266 N.J. Super. 382
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