No. A-3637-12T4.


Superior Court of New Jersey, Appellate Division.

Decided August 15, 2014.

Attorney(s) appearing for the Case

Lesnevich & Marzano-Lesnevich, L.L.C., attorneys for appellants ( Benjamin Levine , on the brief).

O'Toole, Fernandez, Weiner, Van Lieu, attorneys for respondents ( Arthur G. Lash , on the brief).

Before Judges Messano and Rothstadt.



On September 9, 2011, plaintiffs Rebecca and Joshua Teplow filed a complaint against Prino Environmental Consulting Services, Inc. (Prino), and its principal, Barrington Smith, and E.A. Services Corporation (E.A.), and its principal, Gesier Fajardo. Plaintiffs alleged that they hired Prino to remove asbestos in the basement of their home, and Prino in turn retained E.A. to actually do the work. Among other claims, plaintiffs alleged that defendants were negligent, breached the Asbestos Control and Licensing Act, N.J.S.A. 34:5A-32 to 44, violated the Consumer Fraud Act (the CFA), N.J.S.A. 56:8-1 to-20, and breached express and implied warranties and the covenant of good faith and fair dealing. Rebecca Teplow alleged personal injuries as a result of defendants' negligence.

Plaintiffs filed a first amended complaint on October 25, 2011. It alleged only causes of action for breach of contract, negligence, consumer fraud and strict liability. The amended complaint also alleged that plaintiffs suffered damage to their personal property as a result of defendants' negligence, as well as a per quod claim on behalf of Joshua Teplow, occasioned by the "extreme distress, anxiety[] and emotional suffering" of his wife.

Nearly one year later, plaintiffs filed a second amended complaint, adding their three children as plaintiffs. Although setting forth the same causes of action, the second amended complaint alleged that Joshua Teplow and the three children also suffered "severe and permanent injury," as a result of defendants' negligence. This second amended complaint also added a separate count asserting a parental per quod claim as a result of injuries suffered by plaintiffs' children.

On August 29, 2012, the judge entered a case management order submitted by plaintiffs' counsel that set interim due dates for various discovery, including the exchange of experts' reports, and extended the discovery end date until December 8, 2012 ("the August 2012 order"). The order also provided that "any claim for physical injury due to toxic tort ... hereby is withdrawn[.]" Trial was scheduled for February 25, 2013.

E.A. and Fajardo moved for summary judgment. On February 1, 2013, the parties appeared for oral argument.1 Defendants argued that plaintiffs had supplied no expert medical reports to support their claims of personal injury. Defense counsel advised that any medical records regarding Mrs. Teplow were not supplied by plaintiffs, but rather were sent directly to defendants by medical providers in response to authorizations signed by plaintiffs and served by defendants.

Defendants also argued that plaintiffs failed to supply "an itemized list" of personal property damaged or lost that served as the basis for a damages claim. Defense counsel acknowledged that "a couple of days after" the close of discovery, plaintiffs' counsel forwarded "133 pages of receipts" without any itemization and without any certification as required by Rule 4:17-7.2 He also noted that plaintiffs had failed to furnish any proof that the work defendants performed "wasn't done right."

Plaintiff's counsel initially responded, I might bring to the [c]ourt's attention the fact that defense counsel is fighting a case that no longer exists. When he talks about medical reports — I appeared before your Honor several months ago... I stated... that the case had changed. . . . . [T]his is not a toxic tort case requiring medical proofs. That ... has been withdrawn on the record in front of your Honor. So what we're talking about now, basically is a property damage situation and... I provided [defense counsel] with... pages of proofs of the replacement purchases for the items that had to be thrown out.

Plaintiffs' counsel also asserted that no expert report was required as to liability or damages, reiterating that "as [to] the medical... that no longer requires proofs, expert's reports or whatever. Defense counsel has whatever medical reports might be appropriate at some time." Regarding liability, counsel stated that he "intend[ed] to rely on the State of New Jersey investigation...," which resulted in defendants being fined for "failure to properly remediate... the asbestos situation that existed."3

After some further colloquy, it became clear, however, that plaintiffs had not withdrawn a claim that Mrs. Teplow suffered "mental upset" as a result of defendants' work. Plaintiffs' counsel noted that "months ago" defendants had received "statements from the psychologists who have treated Mrs. Teplow and [defendants] have complete records of whatever her anxieties were."

Pressed to explain the complaint's allegation that all five plaintiffs suffered personal injuries as a result of defendants' negligence, the following colloquy occurred between the judge and plaintiffs' counsel:

Counsel: [T]he original contentions of the physical damage... I've repeated... more than once, that contention, the toxic tort contention has been withdrawn. Whatever other damages these people have suffered are primarily property damage.... Judge: When you say primarily, that doesn't mean ... exclusively and therefore there's some wiggle room about some other medical issues — .... Counsel: I understand the point you're making and my answer is that the only question that arises really has to do with the anxiety issue of Mrs. Teplow and there... are reports ... that defense counsel has from a psychologist that states ... that as a result of ... this asbestos business, she has suffered from some anxiety that reflects back to her previous problems .... It's... thin and frankly, I will state... I doubt very much that I will prevail on that issue... in front of a jury. As I've said repeatedly, this is a property damage situation and I think it can be resolved on that basis.

Plaintiffs' counsel acknowledged that some of the receipts forwarded to defendants may have been unrelated to plaintiffs' claims, and stated he would "withdraw whatever is inappropriate." Counsel admitted he supplied no certification, as required by Rule 4:17-7.

A short written decision accompanied the judge's order of February 1, 2013 that granted defendants summary judgment and dismissed plaintiffs' complaint. As a preliminary issue, the judge noted that plaintiffs failed to respond to the statement of undisputed material facts filed by defendants. See R. 4:46-2(b) ("A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement."). He found defendants' statements were adequately supported by the record, and granted summary judgment on that ground.4

Additionally, the judge concluded that plaintiffs "failed to produce any liability expert reports []or... any medical or damage expert reports. Furthermore, plaintiffs ha[d] not provided proofs as to the personal items they allegedly disposed of or the value thereof...." The judge noted that plaintiffs supplied the receipts after the end of discovery and without any certification required by Rule 4:17-7.5

The judge considered each cause of action alleged in plaintiffs' complaint. As to the breach of contract claim, he noted that plaintiffs contracted with Prino, not defendants, and their failure to produce a liability and damage expert report was fatal to both this claim and their negligence claim. Observing that all five plaintiffs alleged "`severe and permanent injuries,'" the judge found that no expert report "establish[ed] either proximate cause []or the nature and extent" of their injuries. Any claim for property damage also failed because the document submitted in violation of Rule 4:17-7 did not include "itemization and proof of damages." As to the CFA claim, the judge again noted that plaintiffs never contracted with defendants, and they failed to demonstrate an "ascertainable loss."6

Plaintiffs moved for reconsideration on February 25, 2013. The appellate record includes only the notice of motion, which did not request oral argument. On March 22, the judge denied the motion. In a brief written statement of reasons, the judge noted that plaintiffs only asserted that "the court's holding and rationale should be reconsidered, without substantiating the same." Plaintiffs filed their notice of appeal seeking review of both the February 1 and March 22, 2013 orders.7

Before us, plaintiffs press two arguments. First, they contend that the judge erred in granting summary judgment based upon their failure to produce expert reports on liability or damages. Plaintiffs assert the judge "missed the focus of plaintiffs[`] case," because any "element of personal injury was no longer an issue," given the August 2012 order. They claim no expert report was necessary to establish damages "which are the subject of numerous receipts submitted by... plaintiffs." As to liability, plaintiffs contend that the State's "investigation" that resulted in defendants being fined "speaks for itself[.]" Secondly, plaintiffs argue that the judge mistakenly exercised his discretion by relying upon Rule 4:17-7 and plaintiffs' admitted failure to supply the necessary certification to exclude the receipts and conclude, therefore, that they failed to substantiate any property damages.

We have considered both points, in light of the record and applicable legal standards. While we in no way condone the manner in which plaintiffs' case has been prosecuted, we find some merit to the arguments now raised. As a result, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

It is clear from the first point in plaintiffs' brief that their appeal is limited to the allegedly improper dismissal of claims for property damage caused by defendants' negligent or deficient workmanship, without regard to the particular cause of action pled. To the extent plaintiffs' counsel's equivocating answers before the Law Division judge left some "wiggle room" to pursue a claim for mental distress, that door is now firmly closed. See, e.g., Fantis Foods, Inc. v. N. River Ins. Co., 332 N.J.Super. 250, 266-67 (App. Div. 2000) (noting that the failure to brief an issue is deemed a waiver on appeal).8 The same is true as to any breach of contract claim, particularly since plaintiffs acknowledged in their complaint that they contracted solely with Prino.

Although plaintiffs also do not specifically address the dismissal of their CFA claim, the judge's stated reasons for dismissal were erroneous. Privity of contract is simply not a requirement for a viable CFA claim. Marrone v. Greer & Polman Const., Inc., 405 N.J.Super. 288, 296 (App. Div. 2009). Moreover, even if the judge correctly decided that the late furnished receipts were properly excluded because of plaintiffs' discovery violation, plaintiffs still demonstrated an "ascertainable loss" under the CFA, i.e., the amount of money they paid to have the asbestos removed from the basement of their home. We therefore reverse the dismissal of plaintiffs' CFA claim.

Turning to plaintiffs' negligence claim, the record reveals that in their answers to interrogatories, plaintiffs furnished the State investigation report and file that cited specific regulatory violations and included inspection notes detailing deficiencies in the workmanship. In our mind, the contents of the report sufficiently established that defendants failed to perform the asbestos removal in proper fashion. Again, even absent the late-produced receipts, plaintiffs presented a viable claim for economic damages as a result, since they paid for the original work, and there is a suggestion in the record that they also paid for remediation work performed by a subsequent contractor.

As to plaintiffs' second point on appeal, we review discovery decisions by applying an abuse of discretion standard. Rivers v. LSC Partnership, 378 N.J.Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). The judge did not mistakenly exercise his discretion when he effectively ruled that the late-furnished receipts could not be considered as proof of property damages. See e.g., Bender v. Adelson, 187 N.J. 411, 428 (2006) (finding no abuse of discretion where trial court refused to permit late amendment of interrogatory answers absent a showing of "due diligence") (citing R. 4:17-7).

In this case, plaintiffs offered no excuse for failing to furnish the documents earlier, and never, even belatedly, set forth circumstances that would have met the Rule's prerequisites. Additionally, as a practical matter, in order for defendants to sort out the relevancy of over one hundred pages of receipts, they would have been forced to seek an extension of discovery themselves under the enhanced "exceptional circumstances" standard of Rule 4:24-1(c), since a trial date had already been set. That result, occasioned solely by plaintiffs' dilatory tactics, is entirely unfair.

Since we are reversing and remanding for further proceedings, we anticipate that the Law Division judge will necessarily need to address any issues the parties may raise regarding discovery. We leave resolution of such issues to his or her sound discretion.

In short, we affirm the dismissal of plaintiffs' complaint, with the exception of their claims for negligence and violation of the CFA. We reverse the grant of summary judgment as to those specific causes of action. We also affirm the grant of summary judgment to defendants as to all of plaintiffs' claims for non-economic damages of any nature whatsoever, and any claims relating to medical bills.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


1. We were advised by plaintiffs' counsel that default was entered against Prino and Smith on January 20, 2012, while predecessor counsel represented plaintiffs. However, judgment was never entered. All references to "defendants" throughout the balance of the opinion are to E.A. and Fajardo.
2. Rule 4:17-7 requires that any amendment to interrogatory answers "shall be served not later than 20 days prior to the end of the discovery period...." "Amendments may be allowed thereafter only if the party seeking to amend certifies... that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties." Ibid.
3. The record includes a March 23, 2010 letter from the Department of Labor and Workforce Development informing Fajardo that he was being cited for violating the Asbestos Control & Licensing Act, supra, and would be fined. The record also includes several exhibits supplied in plaintiffs' answers to interrogatories that included detailed information regarding the results of the State's inspection. After settlement negotiations, E.A. agreed to pay a $2,500 fine.
4. We note plaintiffs' failure to comply with Rule 2:6-1(a)(1), which requires that when the appeal is from a summary judgment, the appendix "shall... include a statement of all items submitted to the court on the summary judgment motion and all such items shall be included in the appendix...." Plaintiffs' appendix includes two volumes denominated as "items considered on motion for summary judgment." Most of plaintiffs' appendix consists of the more than one hundred pages of receipts from numerous stores that were supplied to defendants after the close of discovery. The appendix does not include defendants' statement of undisputed material facts, see Rule 4:46-2(a), to which the judge referred. Defendants did not remedy this failure by supplying the missing documents in their appendix.
5. The judge noted that defendants' interrogatories specifically requested the itemization of any claims.
6. The judge addressed the remaining counts of the complaint but we need not include his reasoning in our opinion since no issues are raised on appeal regarding the allegation of strict liability or the per quod claims.
7. The original notice of appeal filed on April 9, 2013, only sought review of the February 1 order granting summary judgment. It was out of time. See R. 2:4-1(a) ("Appeals from final judgments of courts... shall be taken within [forty-five] days of their entry."). In response to inquiries from the Clerk's Office, plaintiffs then filed an amended notice of appeal on June 3 that sought review of both orders. Since defendants have not objected to the appeal as untimely, we consider the merits.
8. We also note that, despite specific interrogatories requesting the names of proposed expert witnesses, plaintiffs never identified as expert witnesses any of the treatment providers whose records were furnished to defendants.


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