SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4154-17T3

THE OZ CONDOMINIUM 

ASSOCIATION, INC., 

a New Jersey not-for-profit 

corporation,

Plaintiff-Appellant,

v.

OZ, LLC, and METRO HOMES, LLC,

Defendants-Respondents,

and

DEAN S. GEIBEL, ARAM PAPAZIAN, 

MICHAEL H. SCHWERTFEGER, 

WATERFRONT MANAGEMENT, 

SJ CARNEY, UNITED ASPHALT 

COMPANY, H&C ENTERPRISES, LLC,

and 70 ADAMS STREET, LLC,

Defendants.

_____________________________________

Argued May 22, 2019 – Decided July 17, 2019

Before Judges Accurso, Vernoia and Moynihan.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4154-17T3

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-2508-14.

Bernadette Condon argued the cause for appellant 

(Lum, Drasco & Positan, LLC, attorneys; Paul A. 

Sandars, III, of counsel and on the briefs; Bernadette 

Condon, on the briefs).

Sunny M. Sparano argued the cause for respondents 

(Marshall Dennehey Warner Coleman & Goggin, 

attorneys; Sunny M. Sparano, of counsel and on the 

brief; Ian J. Antonoff, on the brief).

PER CURIAM

The Oz Condominium Association, Inc. (plaintiff or Association), appeals 

from the Law Division's February 7, 2018 order, which granted summary 

judgment in favor of defendants Oz, LLC (Oz LLC), and Metro Homes, LLC 

(Metro Homes), on plaintiff's claims for damages due to water leakage allegedly 

resulting from defects in the design, construction, and repair of the Oz 

Condominium (Condominium) building. We affirm.

I.

We discern the following material undisputed facts from the record before 

the motion court and view the facts and all reasonable inferences therefrom in 
3

A-4154-17T3

the light most favorable to plaintiff, the non-moving party.1 R. 4:46-2(c); Bauer 

v. Nesbitt, 198 N.J. 601, 605 n.1 (2009).

The Condominium is a five-story building located in Hoboken that 

contains fifty-four residential units and one commercial unit. Plaintiff "is a nonprofit condominium [association] formed pursuant to the New Jersey 

Condominium Act." Plaintiff is responsible for the maintenance, management, 

and operation of the Condominium's common elements.

Dean S. Geibel is an owner and member of Oz LLC, Metro Homes, and 

Waterfront Management (Waterfront). Oz LLC was the registered Sponsor of 

the Condominium. Metro Homes was an entity established for the branding and 

marketing of Geibel's various projects, including the Condominium. Waterfront 

acted as the property manager for the Association from 2004 until the 

 

1

 We limit our findings of the undisputed facts to those presented in the 

statements of material fact and opposition submitted to the court in accordance 

with Rule 4:46-2(a) and (b), and do not consider or rely on information, 

evidence, and purported facts that were not presented to the motion court in 

accordance with the Rule. See Kenney v. Meadowview Nursing & Convalescent 

Ctr., 308 N.J. Super. 565, 573 (App. Div. 1998) (refusing to consider "factual 

assertions in [the] appeal that were not properly included in the motion . . . for 

summary judgment below" pursuant to Rule 4:46-2). As such, we reject the 

parties' reliance on any purported facts that were not included in their Rule 4:46-

2(a) and (b) statements and that are asserted for the first time on appeal, even if 

supported by citation to deposition transcripts that were included in the record 

presented to the motion court. 
4

A-4154-17T3

Association terminated its agreement with Waterfront in 2013 and retained a 

new property manager. Nick Colvin served as property manager of the 

Condominium from July 2004 through 2009. Colvin testified Metro Homes paid 

for some repairs to the Condominium from 2004 through 2008 to 2009.

Pursuant to its bylaws, the Association is governed by a board consisting 

of three trustees who were initially appointed by the Sponsor. The bylaws also 

provide that within sixty days of the sale of seventy-five percent of the 

Condominium units, the Association trustees shall be elected by the unit owners, 

excluding the Sponsor. Seventy-five percent of the units were sold on 

November 3, 2003, and one hundred percent of the units were closed as of 

February 15, 2004. The City of Hoboken issued a temporary certificate of 

occupancy (TCO) for the Condominium on March 26, 2004.

Plaintiff filed suit against Oz LLC, Metro Homes, and several individuals 

and companies in June 2014 for alleged design and construction deficiencies in 

the Condominium's roof and exterior that resulted in water leakage and required 

extensive repairs. Plaintiff's fourth amended complaint asserted claims against 

Oz LLC and Metro Homes in Counts One through Five, Twelve, and Seventeen 

through Twenty-two for negligence, breach of express warranties, breach of 

implied warranties, breach of fiduciary duty, equitable reformation of the Master 
5

A-4154-17T3

Deed, breach of fiduciary duty (budget), violations of the New Jersey 

Condominium Act, N.J.S.A. 46:8B-1 to -38, violations of the Consumer Fraud 

Act (CFA), N.J.S.A. 56:8-1 to -210, declaratory judgment regarding the 

property's storage room, and budget violations under the Planned Real Estate 

Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-21 to -56, as 

well as breaches of PREDFDA warranties.2

Oz LLC and Metro Homes moved for summary judgment, arguing the 

statute of repose, N.J.S.A. 2A:14-1.1(a), barred all of plaintiff's claims because 

they pertained to the design or construction of the Condominium and were filed 

more than ten years after substantial completion of the Condominium. Plaintiff 

opposed the motion, arguing the exception to the statute of repose, which 

exempts claims against parties "in actual possession and control . . . of the 

 

2

 Count Twelve of the fourth amended complaint seeks equitable reformation 

of the Condominium's Master Deed to re-compute the commercial unit's 

percentage interest in the common expenses as to defendants Oz LLC, Metro 

Homes, Geibel and 70 Adams Street, LLC, the current owner of the commercial 

unit. Count Twenty-Two seeks a declaratory judgment that the storage room in 

the Condominium is not a limited common element of the commercial unit, but 

a common element of the Association. Both counts pertain to the rights and 

expenses of 70 Adams Street, LLC. The motion court declined to reform the 

Master Deed or render a declaratory judgment regarding the storage space. 

Plaintiff does not challenge on appeal the court's order dismissing these counts 

as to Oz LLC and Metro Homes.
6

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improvement at the time the defective and unsafe condition . . . constitutes the 

proximate cause of the . . . damage," N.J.S.A. 2A:14-1.1(a), applied because 

Geibel's companies—Oz LLC, Metro, and Waterfront—together exercised de 

facto control over the Condominium and "were running the ship."3 Plaintiff also 

argued defendants performed repairs on the common elements and, as a result, 

the limitations period under the statute of repose began anew. 

The court heard oral argument, permitted the parties to submit 

supplemental briefs, issued an order granting summary judgment to Oz LLC and 

Metro Homes, and subsequently filed a written opinion. The court found the 

undisputed facts established defendants are separate entities, the statute of 

repose barred all of plaintiff's claims, and plaintiff failed to establish the 

requisite level of possession or control by defendants necessary to invoke the 

exception to the statute of repose. N.J.S.A. 2A:14-1.1(a). With regard to 

plaintiff's claim that repairs to the Condominium triggered a new ten-year 

limitations period under the statute of repose, the court found that, regardless of 

when a roof repair was made and whether it was an "improvement to real 

 

3

 Waterfront was not a party to the summary judgment motion and was 

represented by separate counsel from that of Oz LLC and Metro Homes.
7

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property" under the statute, it was done with the Association board's approval. 

Plaintiff appealed.

II.

We review a grant of summary judgment de novo, determining whether 

there are any genuine issues of material fact when the evidence is viewed in the 

light most favorable to the non-moving party. Rowe v. Mazel Thirty, LLC, 209 

N.J. 35, 38-41 (2012). Summary judgment is appropriate when there is no 

genuine issue of material fact, and the evidence "is so one-sided that one party 

must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252 

(1986)). Provided there are no genuine issues of material fact, we review issues 

of law de novo. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).

We have carefully reviewed the record and, based on the parties' Rule

4:46-2 submissions, conclude there are no genuine issues of material fact. We 

consider the issues of law de novo. Ibid. Plaintiff makes three arguments on 

appeal: (1) the statute of repose does not bar plaintiff's claims against Oz LLC 

and Metro Homes because the exception to the statute applies; (2) the statute of 

repose does not bar plaintiff's claims relating to the repairs performed by Oz 
8

A-4154-17T3

LLC and Metro Homes; and (3) the statute of repose does not bar plaintiff's 

claims under the PREDFDA, CFA, and New Jersey Condominium Act.

We begin by addressing whether the statute of repose applies in the first 

instance. "[T]he statute of repose imposes a ten-year limit upon actions against 

parties responsible for the design, planning, supervision or construction of 

improvements to real property." Town of Kearny v. Brandt, 214 N.J. 76, 92 

(2013). The statute provides that:

No action, whether in contract, in tort, or otherwise, to 

recover 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, nor any action for contribution or 

indemnity for damages sustained on account of such 

injury, shall be brought against any person performing 

or furnishing the design, planning, surveying, 

supervision of construction or construction of such 

improvement to real property, more than [ten] years 

after the performance or furnishing of such services and 

construction. This limitation shall serve as a bar to all 

such actions, both governmental and private, but shall 

not apply to actions against any person in actual 

possession and control as owner, tenant, or otherwise, 

of the improvement at the time the defective and unsafe 

condition of such improvement constitutes the 

proximate cause of the injury or damage for which the 

action is brought.

[N.J.S.A. 2A:14-1.1(a).]
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A-4154-17T3

The ten-year limitations period in the statute of repose "generally 

commences one day after issuance of the certificate of substantial completion 

for the project." State v. Perini Corp., 221 N.J. 412, 427 (2015). Substantial 

completion typically occurs "when the certificate of occupancy [is] issued and 

the architect certifie[s] to the owner that [the] building [is] substantially 

completed." Brandt, 214 N.J. at 94 (quoting Russo Farms, Inc. v. Vineland Bd. 

of Educ., 144 N.J. 84, 117 (1996)).

The undisputed material facts establish that the Condominium was 

substantially complete no later than March 27, 2004, the day after the City of 

Hoboken issued a TCO. See ibid. Plaintiff filed its initial complaint on June 3, 

2014, more than ten years later and outside the time allowed by the statute of 

repose. See id. at 92. The motion court "correctly concluded that plaintiff had 

no actionable claim . . . if such claim could be considered as 'arising out of any 

defect or unsafe condition of an improvement to real property' or because of 'any 

deficiency in the design, planning, supervision or construction' of an 

improvement to real property." Brown v. Jersey Cent. Power & Light Co., 163 

N.J. Super. 179, 187 (App. Div. 1978) (quoting N.J.S.A. 2A:14-1.1). "[T]he 

statute is a complete bar to plaintiff's claim to the extent that the claim arose out 

of the creation of the structure itself." Id. at 188. Therefore, the statute of repose 
10 A-4154-17T3

bars plaintiff's claims in Counts One, Two, Three, Four, Five, Seventeen, 

Eighteen, and Twenty-one, which seek to recover damages arising out of defects 

in the original "design, planning, surveying, supervision or construction" of the 

Condominium. N.J.S.A. 2A:14-1.1(a).

Plaintiff argues that Oz LLC and Metro Homes' conduct falls within the 

exception to the statute of repose such that the statute does not bar any of 

plaintiff's claims. "The statute of repose does not protect parties who are 'in 

actual possession and control [of the improvement] as owner, tenant, or 

otherwise' at the time that the defective and unsafe condition causes the injury 

or damage at issue." Brandt, 214 N.J. at 92 n.5 (alteration in original) (quoting 

N.J.S.A. 2A:14-1.1(a)). Therefore, to fall within the exception, plaintiff was 

required to establish that Oz LLC and Metro Homes were in possession and 

control of the Condominium at the time the defective conditions caused the 

damage at issue. The undisputed facts establish that the elected Association 

board took control of the Condominium from Oz LLC, the Sponsor, within sixty 

days of the sale of seventy-five percent of the units on November 3, 2003, and 

that damages requiring repair began in 2004. Plaintiff argues Oz LLC and Metro 

Homes were in actual possession of the Condominium as owners of the 
11 A-4154-17T3

commercial unit and that they controlled the Condominium through Waterfront, 

which plaintiff contends is indistinguishable from Oz LLC and Metro Homes.

We first address plaintiff's contention that Oz LLC and Metro Homes were 

in actual possession of the Condominium as owners. Plaintiff argues Oz LLC 

and Metro Homes "maintained continued possession and control over the project 

through their ownership of the commercial unit." Plaintiff has failed to present 

any competent evidence, pursuant to Rule 4:46-2, that Oz LLC or Metro Homes 

was an owner or tenant of the commercial unit when the defective conditions 

caused the damage at issue. Plaintiff alleged in its counterstatement of material 

facts that "Dean Geibel owned the commercial space at the [Condominium] from 

2003 through at least 2010." Plaintiff did not allege in its counterstatement of 

material facts below that Oz LLC or Metro Homes owned the commercial unit. 

Moreover, plaintiff's assertion as to Geibel's unit ownership is untethered to a 

citation to any competent evidence in the record as required by Rule 4:46-2(b). 

We cannot conclude that Oz LLC and Metro Homes were in "actual possession 

and control" of the Condominium at the time the defective conditions caused the 

damages at issue, N.J.S.A. 2A:14-1.1(a), because the record lacks competent 

evidence supporting the claim, see Globe Motor Co. v. Igdalev, 225 N.J. 469, 
12 A-4154-17T3

484 (2016) (finding factual assertions on a motion for summary judgment must 

be supported by competent evidence).

We are also not persuaded by plaintiff's remaining argument for applying 

the exception to the statute of repose, that Oz LLC and Metro Homes maintained 

actual possession and control of the Condominium through Waterfront, the 

Condominium's former property manager, which was not a party to the summary 

judgment motion from which plaintiff appeals and is not a party to this appeal.

Plaintiff claims there is a genuine issue of material fact regarding what 

roles Oz, Metro Homes and Waterfront had in the construction of the 

Condominium and whether they exercised de facto control over the 

Condominium. The parties' Rule 4:46-2 submissions, however, do not present 

genuine fact issues. It is undisputed that Oz LLC was the Sponsor of the 

Condominium, Metro Homes was Geibel's branding and marketing firm, and 

Waterfront was the property manager of the Condominium from 2004 to 2013. 

In addition, granting all inferences in plaintiff's favor, the Rule 4:46-2 

submissions do not present a genuine fact issue as to whether Oz LLC and Metro 

Homes exerted "de facto control" over the Condominium. The pertinent facts 

establish only that Oz LLC was the Condominium's Sponsor and turned control 

of the Condominium over to the elected Association board following the sale of 
13 A-4154-17T3

seventy-five percent of the units in November 2003, and Metro Homes paid for 

some repairs to the Condominium from 2004 through 2008 or 2009. Neither 

these facts nor any reasonable inferences that can be drawn therefrom establish 

that either Oz LLC or Metro Homes possessed and controlled the Condominium.

Plaintiff also argues we should find that Oz LLC and Metro Homes 

maintained possession and control of the Condominium through "their 

engagement of a management company[, Waterfront,] owned by the same 

[principals] and indistinguishable from [Oz LLC and Metro Homes] . . . to serve 

as manager of the Association from 2004 through 2013." Plaintiff's claim is 

founded on two assumptions: (1) Oz LLC and/or Metro Homes are

"indistinguishable" from Waterfront and therefore legally responsible for 

actions taken by Waterfront, and (2) Waterfront had actual possession and 

control of the Condominium.

While the record shows that Geibel was an owner and member of Oz LLC, 

Metro Homes, and Waterfront, it does not support a finding that Waterfront was 

"indistinguishable" from Oz LLC or Metro Homes. Such a finding, that 

Waterfront was "a mere instrumentality of" Oz LLC and Metro Homes, State v. 

Ventron Corp., 94 N.J. 473, 500 (1983) (citation omitted), and "had no separate 

existence," requires piercing the corporate veil, id. at 501. As the party seeking 
14 A-4154-17T3

to pierce the corporate veil, plaintiff bears the burden of establishing the 

corporate form should be disregarded. See Richard A. Pulaski Constr. Co. v. 

Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008). To do so, plaintiff must 

prove that Waterfront was "a mere instrumentality of" Oz LLC, Metro Homes, 

or both, Ventron, 94 N.J. at 500 (citation omitted); Oz LLC or Metro Homes "so 

dominated [Waterfront] that it had no separate existence but was merely a 

conduit" for them, id. at 501; and that Oz LLC or Metro Homes "abused the 

privilege of incorporation by using [Waterfront] to perpetrate a fraud or 

injustice, or otherwise to circumvent the law," ibid. Granting plaintiff the 

benefit of all reasonable inferences, the record before us is wholly insufficient 

to meet this standard. Plaintiff presents unsupported assertions in its brief on 

appeal, but failed to present competent evidence to the motion court sufficient 

to support its burden to pierce the corporate veil. For this reason alone, 

plaintiff's claim for application of the exception to the statute of repose fails.

In addition, even if plaintiff were able to pierce the corporate veil between 

Oz LLC and/or Metro Homes and Waterfront, for the exception to the statute of 

repose to apply, plaintiff must present evidence that Waterfront had actual 

possession and control of the Condominium. Apart from identifying Waterfront 

as a former "property manager," plaintiff presented no competent evidence in 
15 A-4154-17T3

the summary judgment record describing Waterfront's actions, authority, or 

otherwise demonstrating that Waterfront was in possession and control of the 

Condominium. See R. 4:46-2(b). Thus, there is no basis to conclude the 

exception to the statute of repose applies. The record simply lacks competent 

evidence showing Waterfront was "in actual possession and control . . . of the 

improvement at the time the defective and unsafe condition . . . constitute[d] the 

proximate cause of the injury or damage for which the action is brought." 

N.J.S.A. 2A:14-1.1(a).

The evidentiary record is insufficient to permit a finding that Oz LLC and 

Metro Homes maintained continued possession of and control over the 

Condominium. We conclude that the exception to the statute of repose is 

inapplicable, and the statute of repose bars plaintiff's claims in Counts One, 

Two, Three, Four, Five, Seventeen, Eighteen, and Twenty-one, which seek to 

recover damages arising out of defects in the original "design, planning, 

surveying, supervision or construction" of the Condominium. N.J.S.A. 2A:14-

1.1(a).

We next address plaintiff's contention that the statute of repose does not 

bar its claims relating "to repairs undertaken and paid for by [Oz LLC and Metro 

Homes] . . . because such actions on the part of [Oz LLC and Metro Homes] 
16 A-4154-17T3

effectively toll the [s]tatute of [r]epose." Plaintiff relies on Horosz v. Alps 

Estates, Inc., 136 N.J. 124 (1994), which states:

When a builder-developer performs repairs that 

constitute an improvement to real property after the 

initial construction has been completed, the owner has 

ten years from completion of the repair work to file an 

action against the builder-developer for defects relating 

solely to that repair work. With respect to defects 

unrelated to such repairs (defects resulting from the 

original construction), however, N.J.S.A. 2A:14-1.1 

runs from the date of the completion of the initial 

construction of the home.

[Id. at 133 (emphasis added).]

An "improvement to real property" is "an integral addition or alteration" 

without which the building "could not be used for its intended purpose." Id. at 

130; see, e.g., id. at 131 (finding underpinning was an improvement because it 

"was integral to the house as a structure" and, without it, the Horoszes could not 

live in the house); Wayne Twp. Bd. of Educ. v. Strand Century, Inc., 172 N.J. 

Super. 296, 300 (App. Div. 1980) (holding installation of a dimmer panel was 

an improvement because the panel was required for the new auditorium to 

function as intended); Brown, 163 N.J. Super. at 195-96 (finding a free-standing 

electrical transfer switch assembly cabinet was an improvement because it 

"constituted a permanent part of one of the mechanical systems necessary to the 

normal function of this particular improvement to the real estate).
17 A-4154-17T3

Oz LLC and Metro Homes contend that, unlike the repairs at issue in

Horosz, "the repairs in this case do not constitute separate improvements to real 

property and therefore do not serve as a start date for calculation of the statute 

of repose." They also argue plaintiff has not established that Oz LLC and Metro 

Homes performed any post-construction repairs at the Condominium.

In its fourth amended complaint, plaintiff claimed Waterfront, but not Oz

LLC or Metro Homes, made defective repairs to the Condominium in 2013. 

Plaintiff's allegations in the complaint against Oz LLC and Metro Homes refer 

only to designing, constructing, supervising, or installing in the original 

construction. Moreover, the undisputed facts show only that Metro Homes paid 

for some repairs to the Condominium from 2004 through 2008 or 2009, but not 

in 2013.

Viewing all inferences in plaintiff's favor, the undisputed facts do not

establish that Oz LLC performed any repairs to the property after the initial 

construction, do not detail the repairs for which Metro Homes paid, and do not

establish that any of the repairs for which Metro Homes paid constituted an 

"improvement to real property." See Horosz, 136 N.J. at 133. In its brief,

plaintiff cites to deposition testimony regarding various alleged repairs, but did 

not present any competent evidence to the motion court supporting its claims in 
18 A-4154-17T3

accordance with Rule 4:46-2.

4

 Thus the summary judgment record is devoid of 

any undisputed facts or evidence establishing that Oz LLC or Metro Homes 

made an improvement to real property sufficient to support the running of the 

statute of repose from the date of a repair. R. 4:46-2; Kenney, 308 N.J. Super. 

at 573.

In addition, while "less-significant alterations and additions" than 

underpinning a sinking foundation may constitute an "improvement to real 

property," Horosz, 136 N.J. at 129, to trigger a new ten-year limitations period

under the statute of repose beginning at the date of repair, the defect at issue 

must result solely from the repair, not the original construction, id. at 132.

Plaintiff failed to present evidence and undisputed facts establishing that the 

alleged defects, for which it seeks damages, "relat[e] solely to [the] repair work,"

as opposed to the original construction. Id. at 133. Thus, the summary judgment 

record does not permit a finding that Oz LLC or Metro Homes performed repairs 

 

4

 We again note that plaintiff incorrectly relies on deposition transcripts to 

support purported facts that were never presented to the motion court in 

accordance with Rule 4:46-2(a) and (b). Plaintiff's attempted reliance on such 

purported facts is rejected because it ignores the Rule's clear requirements, 

constitutes an improper assertion of purported facts for the first time on appeal 

and would unfairly deprive defendant of the opportunity to contest the facts in 

accordance with the established and requisite procedure under the Rule. 
19 A-4154-17T3

constituting improvements to real property triggering the running of the ten-year 

limitations period under the repair exception in the statute of repose.

Plaintiff also argues the statute of repose does not bar its claims under the 

PREDFDA (Counts Five and Seventeen), CFA (Count Twenty-one), and New 

Jersey Condominium Act (Counts Nineteen and Twenty). Plaintiff contends Oz 

LLC and Metro Homes violated the PREDFDA by utilizing a public offering 

statement that failed to disclose construction defects once they became known 

to defendants and by preparing an inadequate budget for the management, 

operation and maintenance of the Condominium because of the defects. 

Similarly, plaintiff argues Oz LLC and Metro Homes violated the CFA "by 

falsely and fraudulently misrepresenting that the Condominium and common 

elements were free from faults and defects" and failing to disclose building 

defects. Plaintiff also argues Oz LLC and Metro Homes violated the New Jersey 

Condominium Act and committed breaches of fiduciary duties thereunder by 

failing to turn over required documents to the elected Association board, by 

hiring Waterfront for an indefinite period of time, and by maintaining de facto 

control over the Association through 2013.

Plaintiff's claims under these acts are barred for two reasons. First, the 

statute of repose bars plaintiff's PREDFDA and CFA claims. Second, plaintiff 
20 A-4154-17T3

failed to assert its claims within the limitations periods associated with these 

causes of action. 

Plaintiff's PREDFDA and CFA claims are barred because the plain

language of the statute of repose precludes any "action, whether in contract, in 

tort, or otherwise, to recover damages for any deficiency in the design, planning, 

surveying, supervision or construction of an improvement to real property, [and] 

any action for contribution or indemnity for damages sustained on account of 

such injury . . . more than [ten] years after the performance or furnishing of such 

services and construction." N.J.S.A. 2A:14-1.1(a) (emphasis added). Plaintiff's 

PREDFDA and CFA claims, as stated in the fourth amended complaint, seek to 

recover damages sustained on account of defects in the original design and 

construction of the Condominium. See Brown, 163 N.J. Super. at 187-88. We 

have also previously determined statutory claims are subsumed by the statute of 

repose. See Stix v. Greenway Dev. Co., 185 N.J. Super. 86, 90 (App. Div. 1982) 

(finding complaints asserting CFA claims may be time-barred by the statute of 

repose). We therefore find the statute of repose bars plaintiff's PREDFDA and 

CFA claims.

Plaintiff's PREDFDA, CFA, and New Jersey Condominium Act claims 

are also time-barred under their respective statutes of limitations. 
21 A-4154-17T3

The PREDFDA provides that "[a] person may not recover under this 

section," which prescribes liability for a developer who gives false statements 

of material fact or omits material facts in its public offering statement, "in 

actions commenced more than [six] years after his first payment of money to the 

developer in the contested transaction." N.J.S.A. 45:22A-37(d). One hundred 

percent of the units in the Condominium were closed as of February 15, 2004, 

more than six years prior to plaintiff's filing of the June 2014 complaint. 

Plaintiff's PREDFDA claims are thus time-barred under N.J.S.A. 45:22A-37(d).

An action for fraud under the CFA "shall be commenced within [six] years 

. . . after the cause of any such action shall have accrued." N.J.S.A. 2A:14-1; 

see also Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 170 (App. Div. 

2007). Generally, "a cause of action will be held not to accrue until the injured 

party discovers, or by an exercise of reasonable diligence and intelligence 

should have discovered that he may have a basis for an actionable claim." Nester 

v. O'Donnell, 301 N.J. Super. 198, 204 (App. Div. 1997) (quoting Lopez v. 

Swyer, 62 N.J. 267, 272 (1973)). Plaintiff seeks damages for defects in the 

original design and construction of the Condominium. Pursuant to the 

Association bylaws, an elected board of trustees controlled the Association 

within sixty days of November 3, 2003, when seventy-five percent of the 
22 A-4154-17T3

Condominium's units were sold, and the undisputed facts establish repairs were 

made to the property beginning in 2004, evidencing problems with the newly 

constructed Condominium's design and construction. Plaintiff also alleged in 

its fourth amended complaint that after elected unit owners "took statutory 

control of the Board of Trustees after [Oz LLC] . . . closed on the sale of the 

seventy-five . . . percent of the units to Members . . . the Association became 

aware of various deficiencies in the design and construction of the [c]ommon 

[e]lements at the [Condominium]." Thus, plaintiff was or should have been 

aware that it may have an actionable claim as early as 2004, ten years before it 

filed the complaint, and we find plaintiff's CFA claims are barred under the sixyear statute of limitations.

Claims under the New Jersey Condominium Act are also subject to a sixyear statute of limitations. N.J.S.A. 2A:14-1; The Palisades at Ft. Lee Condo. 

Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017). Plaintiff's 

allegations regarding Oz LLC and Metro Homes' failure to provide required 

documents to the Association board and their hiring of Waterfront concern 

conduct that took place in 2003 and 2004, ten years before the complaint was 

filed and well outside the six-year statute of limitations. We also note that the 

summary judgment record is bereft of competent evidence supporting plaintiff's 
23 A-4154-17T3

assertions that defendants failed to provide documentation to the board, 

improperly contracted Waterfront,5 or, as discussed in detail above, maintained 

de facto control over the Association through 2013. For these reasons, we find 

plaintiff's claims under the New Jersey Condominium Act are also barred.

We reject plaintiff's arguments and affirm the court's grant of summary 

judgment to Oz LLC and Metro Homes on all counts (Counts One through Five, 

Twelve, and Seventeen through Twenty-two) of the fourth amended complaint 

asserted against them.

Affirmed.

 

5

 Plaintiff argues, without citation to the competent record evidence, that Oz 

LLC and Metro Homes unilaterally entered into a contract with Waterfront for 

administration and management of the Association and that service contract 

continued without ratification from an independent board for more than eight 

years in violation of the New Jersey Condominium Act, N.J.S.A. 46:8B-12.2. 

These asserted facts were not presented to the motion court in plaintiff's counter 

statement of material facts or its response to Oz LLC and Metro Homes' 

statements of material fact in accordance with Rule 4:46-2. We will not consider 

or rely on these purported facts because plaintiff failed to present these 

allegations to its adversary and the motion court in accordance with the Rule. 

See Kenney, 308 N.J. Super. at 573.