SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A

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RIVA POINTE AT LINCOLN HARBOR CO NDOMINIUM ASSOCIATION , INC., a New Jersey Non

- Profit Corporation,
Plaintiff

- Appellant,

v. TISHMAN CONSTRUCTION CORPORATION, A Delaware Corporation , TISHMAN CONSTRUCTION CORPORATION OF NEW JERSEY, a New Jersey Corporation , NORTH EAST CONSTRUCTION , and PELLA WINDOWS AND DOORS, Commercial Division , Defendants

- Respondents , and
EVANSTON INSURANCE COMPANY 1 and SCOTTSDALE INSURANCE COMPANY,

1 Improperly pled herein as Essex Insurance Company. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Defendants.

______________________________ TISHMAN CONSTRUCTION CORPORATION, a Delaware Corporation , TISHMAN CONSTRUCTION CORPORATION OF NEW JERSEY, a New Jersey Corporation,
Third

- Party Plaintiff

Respondent ,

v. BONLAND INDUSTRIES, INC. , PFC INCORPORATED , NOVA CRETE, INC. , MEADOWLANDS FIRE PROTECTION , NORTH EAST CONSTRUCTION , DEL SALVIO MASONRY CORPORATION , SLOAN & COMPANY , ON PAR CONTRACTING CORP ORATION, PELLA WINDOWS & DOORS, Commercial Division , LUX HOMES, INC. , and RIVA POINTE DEVELOPMENT, LLC,
Third

- Party Defendants

Respondents,
and KNS BUILDING RESTORATION,
Third

- Party Defendant.

______________________________3 A

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BONLAND INDUSTRIES, INC.,
Fourth

- Party Plaintiff,

v. C

- K AIR CONDITIONING, INC.,
Fourth

- Party Defendant.

______________________________

Argued t elephonically May 13, 2020

- Decided June 15, 2020 Before Judges Fuentes, Mayer and Enright. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 4104

- 15. David J. Byrne argued the cause for appellant Riva Pointe at Lincoln Harbor Condominium Association , Inc. (Ansell Grimm & Aaron PC, attorneys; Breanne M arie De Raps and Mark M. Wiechnik, on the brief s ).
Keith R obert Hemming argued the cause for respo ndents Tishman Construction Corporation and Tishman Construction Corporation of New Jersey (McElroy, Deutsch , Mulvaney & Carpenter, LLP, attorneys; Keith R obert Hemming, of counsel; Lisa K. Minichini, on the brief). Harris B. Katz argued the cause for res pondent North East Construction (Winget Spadafora & Schwartzberg, LLP, attorneys; Harris B. Katz, on the brief).
Mark R obert Scirocco argued the cause for respondents Lux Home s , Inc

. and Pella Windows and Doors, Commercial Division ( Law Offices of Robert A.4 A

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Louis J. De Mille, Jr. argued the cause for respondent Bonland Industries, Inc. (Zirulnick, Sherlock & DeMill e , attorneys; Louis J. De Mille, Jr., of counsel and on the brief).
Joshua P atrick Locke argued the cause for respon dents C

- K Air Conditioning, Inc. and Nova Crete, Inc. ( Turner, O ' Mara, Donnelly & Petrycki, PC , attorneys, join in the briefs of respondents Tishman Construction Corporation, Tishman Construction Corporation of New Jersey, North East Construction, Sloan & Company, Lux Home s, Inc., Pella Windows and Doors Commercial Division, and Bonland Industries, Inc. ).
Eric Corey Weissman argued the cause for respondent Riva Pointe Development, LLC ( Ropers Majeski Kohn & Bentley , attorneys , join in the briefs of respon dents Tishman Construction Corporation, Tishman Construction Corporation of New Jersey, North East Construction, Sloan & Company, Lux Home s, Inc., Pella Windows and Doors Commercial Division, and Bonland Industries, Inc .).
PER CURIAM
Plaintiff Riva Pointe at Lincoln Harbor Condominium Association , Inc. appeals from a March 11, 2019 order dismissing its complaint, as well as third

party complaints and crossclaims. We affirm, substantially for the reasons set5 A

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forth in Judge Anthony V. D ' Elia ' s de tailed and thoughtful oral opinion dated March 8, 2019. To give context to our decision, we refer to our related unpublished opinion , Riva Pointe at Lincoln Harbor Condo. Ass ' n v. Riva Pointe Dev., Ltd.
Liab. Co. , No. A

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- 15 (App. Div. Feb. 27, 2018) ( F irst Action ) and highlight
the salient facts of the instant matter

. In October 2012, plaintiff commenced its First Action against a developer, general contractor/project manager, architect, and other parties , alleging the named parties were responsible for construction defects discovered during

" Phase III " of the Riva Pointe at Lincoln Harbor Condominium Project (Project).
Plaintiff alleged defective construction caused water infiltration into
condominium units and common areas, resulting in extensive damages

. After numerous extensions of the discovery deadline in the First Action , plaintiff served a " preliminary " expert report , iden tifying the alleged negligence
of each defendant during the Project ' s construction

. Plaintiff advised defense
counsel and the trial court that the preliminary expert report was its final expert report. With that understanding, Judge Christine M. Vanek allowed plaintiff to submit a supplemental expert report for the sole purpose of rebutting any defense expert reports

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Prior to trial on the First Action , plaintiff moved for another extension of
the discovery deadline, leave to file a sixth amended complaint, and postponement of the trial date. Judge Vanek denied these requests. Mo re than

a month after the court

- ordered deadline , p laintiff served a supplemental expert report , raising new issues, opinions and conclusions regarding the Project ' s construction defects and increas ing p laintiff ' s claimed damages by nearly $8
million

. On September 25, 2015 , Judge Vanek found p laintiff was time

- barred from amending its discovery responses to include an expert opinion on the Project ' s " water

- side damages " and she prohibited p laintiff from using any opinions contained in its supplemental expert report which we re not " necessary to rebut the testimony of [d]efendant ' s experts. "
O n October 2 , 2015, p laintiff filed a second complaint (Second Action) against defendant Tishman Construction Corporation (Tishman), alleging Tishman was responsible for construction defects on the Project referenced in
the First Action

. Either by amended complaint , or third

- party complaint filed by Tishman, defendants North East Construction , Lux Home s, Inc. , Pella
Windows and Doors , Commercia l Division , Bonland Industries, Inc. , K.N.S. Building Restoration (K.N.S.) , Sloan & Company, Nova Crete, Inc., Riva Pointe Development, LLC (RPD) , and others not involved in this appeal were joined in7 A

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the suit. Bonland Industries, Inc. filed a fourth

- party complaint against C

- K Air Conditioning, Inc. On October 14, 2015 , Judge Vanek heard Tishman ' s motions in limine in
the First Action. During that hearing, the judge found p laintiff knew or should
have known it had a viable cause of action for construction defects when
p laintiff ' s expert, Falcon Group, Engineering & Architecture (Falcon) issued its report in September 2008. Thus, Judge Vanek determined this was the accrual
date for p laintiff ' s cause of action.
In advance o f trial, J udge Vanek directed p laintiff ' s liability expert to appear for a deposition by October 20, 2015. When p laintiff did not comply
with this order , Judge Vanek precluded p laintiff ' s liability expert from testifying
at trial. On the first day of trial, p laintiff ' s attorney stated i t would be " fruitless and futile to continue with the case given that we don ' t have a liability expert. "
T he First Action was dismissed with prejudice b y order dated October 26, 2015

. Plaintiff appealed from Judge Vanek ' s dismissal and discovery rulings in the
First Action and we affirmed all orders on appeal

. On January 28, 2016, w hile th e appeal from the First Action remained pending, Judge Vanek dismissed the Second Action without prejudice . She8 A

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found the Second Action was duplicative of the First Action so she did not have jurisdiction to proceed

. The judge specifically determined the claims in the
Second Action were not " new , " stating :

[h] ere, it is not as if [ p laintiff ] is alleging that damages just occurred as a result of some action on the part of Tishman which took place in the last few months. The relevant transaction or occ urrence that these [c]omplaints both arise out of are the construction of Phase III of the Riva Pointe at Lincoln Harbor Condominium

. [ Plaintiff ] had ample time in the First Action to pursue the water [

- ] side damages with nearly three years of discovery and it failed to do so. [ Plaintiff ' s] attempted manipulation of Tishman ' s use of the word " new " when referring to the water [

- ] side damages runs completely afoul of [c] ounsel for [ p laintiff ' s] representations on the record on September 18, 2015 t hat these findings were not, in fact, " new " damages, but rather, a new investigation which unfolded the same or substantially similar damages as noted in the [p] reliminary [r] eport, albeit in a different location of the building.

. . . . [ T ]o allow [ p laintiff ' s] Second Action to proceed would improperly allow [ p laintiff ] an " end

- run " around the [c] ourt ' s prior rulings, while an appeal is pending. The [c] ourt noted in

. . . the First Action that allowing [ p laintiff ] to proceed with new claims for damag es asserted after over 974 days of discovery, in violation of [c] ourt [o] rders, would have required the [c] ourt to reopen discovery in its entirety, despite the extensive length of time [ p laintiff ] had to pursue its claims. The [c]ourt finds no functional difference in [ p laintiff ' s] attempt to reopen discovery in the prior action, and9 A

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- 18T2 [ p laintiff ' s] current intention to proceed with discovery on a Second Action alleging the same claims, and damages resulting from those claims. The Second Action is identical to the former , with the only difference being that it is only brought against Tishman and not the extensive list of defendants who were parties to the First Action. Allowing the Second Action to go forward could potentially result in further dup licative efforts

. . . , potentially resulting in many of the defendants from the First Action who either settled or were relieved on summary judgment to again answer for the allegations which it already compensated for by way of settlement, or in the signi ficant costs incurred refuting [ p laintiff ' s] claims and obtaining summary judgment after over [thirty] dispositive motions

. . . decided in connection with the First Action

. . . . [ A] llowing the Second Actio n to proceed through the discovery process would run afoul of the Rules of Court which divest this [c] ourt of jurisdiction while an appeal is pending, and result in potentially unnecessary cost to the parties involved and to the judicial system. Accordingly,

. . . . [ p laintiff ' s] Second Action is hereby DISMISSED without prejudice

. [Emphases added.] After we affirmed Judge Vanek ' s rulings in the First Action, p laintiff
moved to reinstate its Second Action

. Judge Mary K. Costello granted
reinstatement . Two subsequent motions for reconsideration of the reinstatement
decision were denied by Judge Costello and the matter was transferred to Judge
D ' Elia

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Judge D ' Elia conducted a case management conference on February 14,
2019 . The judge discussed K.N.S

. ' s pending motions for dismissal based on principles such as res judicata, the entire controversy doctrine, and the statute
of limitations , and counsel for K.N.S. reminded him that her " client got out on summary judgment " in the First Action before that case was dismissed with prejudice. Judge D ' Elia noted K.N.S. ' s legal posture in the First Action and
invited counsel at the conference to submit " anything further " regarding their outstanding issues prior to the return date of the motions.
Third

- party defendant RPD responded to the judge ' s invitation and
forwarded him Judge Vanek ' s October 14, 2015 decision from the First Action

. In that 2015 decision, Judge Vanek specifically found p laintiff " did not have the requisite kn owledge that it had incurred serious damages [for the Project] and that it had an action against Tishman until September 2008. " She also found :

[ T ] he unit owners did not assume control of Phase III of [the P roject] until March of 2011

. . . . As such, [ p laintiff ' s ] cause of action would n ot have accrued until [ p laintiff ] assumed control. [ P laintiff ] did not learn that the curative action [for the defects] failed until it hired [Falcon] . . . to investigate and draft a report. Falcon issued its [report] in September 2008, which revealed [the] true nature and extent of the alleged defects.11 A

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On March 8, 2019, Judge D ' Elia heard oral argument on K.N.S. ' s pending
motions for dismissal. Before he ruled , the judge extensively reviewed the factual and procedural history of the First and Second Actions , Judge Vanek ' s October 14, 2015 and J anuary 28, 2016 de cisions, and Judge Costello ' s reinstatement of the Second Action. Concluding there were " two laws of the case " based on prior rulings from Judge s Vanek and Costello, Judge D ' Elia agreed with Judge Vanek ' s finding that
p laintiff ' s allegations in the Second Action were duplicative of the First Action

. He further agreed with Judge Vanek ' s finding that p laintiff ' s cause of action
accrued as of September 2008 . Thus , Judge D ' Elia determined p laintiff ' s claims
were time barred under the statute of limitat ions, N.J.S.A. 2A:14

- 1 . Judge
D ' Elia relied on the recent holding in The Palisades At Fort Lee Condo. Ass ' n, Inc. v. 100 Old Palisade, LLC , 230 N.J. 427, 454 (2017) to reach this conclusion

. He also noted Judge Vanek did not have the benefit of the Palis ades ruling when
she decided the accrual date for p laintiff ' s cause of action was deferred until
March 2011 based on p laintiff ' s assumption of control of Phase III of the Project
at that time

. Judge D ' Elia next addressed K.N.S. ' s request for dismissal under the entire controversy doctrine. He again found p laintiff ' s claims arose in September 200812 A

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when it received Falcon ' s report . The judge added, " [t]he fact that the plaintiff was unaware of the exact extent of those damages that resulted fr om the alleged construction or design defects is not relevant . . . in deciding whether the entire controversy doctrine applies . . . because [ p laintiff ] should have

. . . proceeded as quickly as possible so that . . . the [Second Action] would not be dupl icative
of the first. " Further, Judge D ' Elia found the claims in the First and Second
Action s were not " separate and discre [ te ] , " but instead, " clearly related to the underlying transaction, the full

- blown construction problem . . . back from [P] hase [ III ] of the [Project]. Therefore, they ' re barred by the entire controversy
doctrine. " Before the hearing concluded, Judge D ' Elia also explained K.N.S. was entitled to dismissal in the Second Action based on res judicata. Given his findings, Judge D ' Elia asked p laintiff ' s counsel, " [w] ould you mind if I sua sponte dismissed . . . all complaints against all defendants based
upon [the] statute of limitations and entire controversy doctrine,

. . . so that you can get that full argument and get the notice of a ppeal filed tomorrow? "
Plaintiff ' s counsel responded, " I think that ' s okay, Your Honor. " Accordingly, Judge D ' Elia dismissed the Second Action as to all defendants

. H is March 11,
2019 order confirmed the dismissal was with prejudice.13 A

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On appeal, p laintiff argues Judge D ' Elia erred in, sua sponte, granting summary judgment to all defendants based on the statute of limitations and the entire controversy doctrine . Further, p laintiff suggests Judge D ' Elia resorted to

" shortcuts " and argues the judge e rred by sua sponte dismiss ing its complaint in
the Second Action

. Plaintiff also contends utilization of the entire controversy
doctrine was " off the table " because Judge Costello reinstated the Second Action, satisfied the claims therein were " new. " The se arguments are unavailing

. W e r eview de novo a trial court ' s decision to grant or deny a motion to dismiss pursuant to Rule 4:6

- 2(e). Rezem Family Assoc., LP v. Borough of
Millstone , 423 N.J. Super. 103, 114 (App. Div. 2011). Moreover, we analyze pure questions of law raised on a dismissal motion, such as the application of
the statute of limitations, on a de novo basis. Smith v. Datla , 451 N.J. Super. 82, 88 (2017)

. That is because a " trial court ' s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. " Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366, 378 (1995). A de novo standard also applies " [w]hen the legal
conclusions of a tria l court on a Rule 4:46 summary judgment decision are reviewed on appeal. " McDade v. Siazon , 208 N.J. 463, 473 (2011).14 A

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A court must dismiss a complaint if a plaintiff has failed to articulate a legal basis entitling that party to relief. Sickles v. Cabot Corp. , 379 N.J. Super. 100, 106 (App. Div. 2005) (citing Camden County Energy Recovery Assocs., L.P. v. New Jersey Dep ' t of Envtl. Prot. , 320 N.J. Super. 59, 64 (App. Div. 1999)). " A motion to dismiss a complaint under Rule 4:6

- 2(e) for failure to s tate a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint. " Donato v. Moldow , 374 N.J. Super. 475, 482 (App. Div. 2005)

. If a motion to dismiss brought
under subsection (e) pre sents " matters outside the pleading, " Rule 4:6

- 2 requires
that the motion be " treated as one for summary judgment. "
Under N.J.S.A. 2A:14

- 1, a construction

- defect action must be commenced within six years " after the cause of any such action shall have acc rued. " As Judge D ' Elia aptly noted, t he P a lisades Court specifically " reject[d] the approach

. . . that the six

- year statute of limitations could not accrue before plaintiff gained
full control of the [c] ondominium [a] ssociation. An owner of a building cannot convey greater property rights to a purchaser than the owner possessed. " 230
N.J. at 449. " I f the building ' s owner knew or reasonably should have known of construction defects at the time of the sale of the property, the purchaser takes title subject to the original owner ' s right

— and any limitation on that right

— to15 A

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file a claim against the archit ect and contractors. " Id. at 449

- 50 (citing O ' Keeffe v. Snyder , 83 N.J. 478, 502 (1980) )

. " Thus, a subsequent owner will stand in the shoes of a prior owner for statute

- of

- limitations purposes. " Id. at 450 (citations omitted).

" A cause of action, for purposes of N.J.S.A. 2A:14

- 1, accrues when someone in the chain of ownership first knows or reasonably should know of an actionable claim against an identifiable party. " Ibid. " A condominium plaintiff does not enjoy a preferred status exempting it from t his long

- standing rule. "
Ibid. Here, a s Judge s D ' Elia and Vanek separately observed, Falcon notified
p laintiff of construction defects in the Project when it issued its September 2008 report

. Accordingly, based on the September 2008 accrual date for p laintiff ' s action and the holding in Palisades , Judge D ' Elia deemed the Second Action barred by the statute of limitations. We perceive no basis to disturb this ruling. In light of our decision, we need not address Judge D ' Elia ' s determi nation
that dismissal of the Second Action also was appropriate under the entire controversy doctrine

. To the extent we have not addressed p laintiff ' s remaining arguments, we are satisfied they lack sufficient merit to warrant discussion in a written opin ion. R. 2:11

- 3 (e)(1)(E).
Affirmed.