• Failure to Oppose Summary Judgment With Evidence Dooms Reargument Motion: Archstone v Tocci Bldg. Corp. of N.J., Inc.
  • January 12, 2011 | Author: Aaron E. Zerykier
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In at September 23, 2010 decision by Justice Warshawsky the Court granted leave to reargue and adhered to its prior determination granting one of the third-party defendants dismissal of the claims against it. The litigation was brought because water infiltration discovered after the completion of a large apartment complex. The general contractor brought third party claims against of the number of suppliers to the project, including the supplied of prefabricated wood panels.

    The wood panel manufacturer moved for summary judgment based on its employee’s affidavits that the panels as fabricated and delivered met all specifications and were fit for their purpose. The affidavit further explained that after delivery the panels were cut and altered by whoever erected the panels at the site. Through this affidavit the third-party defendant submitted admissible evidence that there were no defects in the wall panels.

    The Court adhered to its prior finding dismissing the wood panel manufacturer from the suit because (i) the third-party plaintiff general contractor did not claim that there was an actual defect in the wall panels (rather the general contractor only brought a claim-over in the event the general contractor was found liable to the plaintiff) so there was no triable issue of fact on that claim and (ii) the plaintiff failed to adduce any admissible evidence that the wall panels were defective.