SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4295-18T3

GEOVANY COTO,

Plaintiff-Appellant,

v.

CUNNINGHAM CONSTRUCTION

COMPANY, LLC, RAYS DRYWALL,

LLC, JB INSULATION AND

DRYWALL, LLC, NORTHFIELD

INSURANCE, and NORTHLAND

INSURANCE,

Defendants,

and

COSTELLO & ASSOCIATES

INSURANCE GROUP,

Defendant-Respondent.

________________________________

Submitted January 14, 2020 – Decided March 6, 2020

Before Judges Currier and Firko.

NOT FOR PUBLICATION WITHOUT THE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.
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On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Union County, 

Docket No. L-0648-17.

Ginarte Gallardo Gonzalez & Winograd, LLP, 

attorneys for appellant (John Joseph Ratkowitz, of 

counsel and on the briefs; Sean T. Payne, on the briefs).

Mc Elroy Deutsch Mulvaney & Carpenter, LLP, 

attorneys for respondent (Christopher James Carey, of 

counsel and on the brief; Daniel Albert Malet, on the 

brief).

PER CURIAM

Plaintiff Geovany Coto appeals from a March 29, 2019 order dismissing 

his complaint with prejudice against defendant Costello & Associates Insurance 

Group (Costello) and an April 26, 2019 order denying reconsideration. Because 

we conclude that plaintiff may have a potential claim against Costello,

contingent on the manner of resolution of his claims against other parties, we 

reverse and remand for the trial court to enter an order of dismissal without 

prejudice. 

In July 2016, plaintiff sustained injuries while working as a drywall 

installer on a construction site. In February 2017, plaintiff filed a complaint

against defendant Cunningham Construction Company, LLC (Cunningham) (the 

general contractor) and defendant Rays Drywall, LLC (the subcontractor). He 

alleged claims of negligence and statutory torts; violations of the Occupational 
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Safety and Health Administration Act (OSHA), 29 U.S.C. §§ 651 to 678; and 

violations of the New Jersey Construction Safety Act (CSA), N.J.S.A. 34:5-166 

to -182. 

According to plaintiff, Northfield Insurance (Northfield) or Northland 

Insurance (Northland) issued a general liability policy to Cunningham. In June 

2017, Northfield informed plaintiff's counsel that its policy did not provide 

coverage to Cunningham for plaintiff's personal injuries. Thereafter, plaintiff 

amended his complaint three times, adding Northfield, Northland, and another 

subcontractor as defendants, and adding a claim that plaintiff was an intended 

third-party beneficiary of the policy issued by Northfield to Cunningham. 

On January 25, 2019, plaintiff amended the complaint for the fourth time, 

adding Costello as a defendant and alleging a professional negligence claim 

against the insurance broker. Plaintiff claimed Costello was negligent in failing 

to advise Cunningham of the necessary and required liability insurance. The 

negligent advice resulted in Cunningham not being properly insured and failed

to protect Cunningham and third-party beneficiaries such as plaintiff.

Costello moved to dismiss the complaint, asserting that plaintiff's personal 

injury action was governed by a two-year statute of limitations, N.J.S.A. 2A:14-

2(a). Because plaintiff's amended complaint against Costello was filed more 
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than two years after the accident, Costello contended the statute of limitations 

had expired, requiring the dismissal of the complaint.

Plaintiff contended in opposition that a six-year statute of limitations1

applied to his professional negligence claims against Costello. Plaintiff also 

asserted he had standing to assert this cause of action as an intended third-party 

beneficiary of Cunningham's insurance policy.

On March 29, 2019, the court granted Costello's motion and dismissed the 

complaint with prejudice. In a written statement of reasons, the court found it 

was required to focus on the nature of the injury and not the underlying legal 

theory. Therefore, the two-year statute of limitations applied because the nature 

of the suit was for personal injuries.

In an order of the same date, as Cunningham had not answered the 

complaint, the court entered default judgment against Cunningham on the issue 

of liability.

In its denial of plaintiff's subsequent motion for reconsideration on April 

26, 2019, the trial court found plaintiff lacked standing to enforce the contract 

between Costello and Cunningham, and therefore could not assert an action 

against Costello. The court noted that because plaintiff could not establish he 

1 N.J.S.A. 2A:14-1.
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could not collect any monies from Cunningham, the issue whether 

Cunningham's coverage was adequate was "purely speculative at this point in 

time." Therefore, plaintiff's action sounded only in personal injury and was 

subject to dismissal under the two-year statute of limitations.

On appeal, plaintiff argues the trial court erred in granting the motion to 

dismiss and in denying reconsideration because the six-year statute of 

limitations applies since this case is predicated on Costello's professional 

negligence in failing to supply the appropriate insurance coverage and advice to 

Cunningham.

We review de novo a trial court's decision to grant or deny a motion to 

dismiss under Rule 4:6-2(e). Rezem Family Assocs., LP v. Borough of 

Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). 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) (citations omitted).

The trial court correctly perceived that the issue of whether Cunningham

had adequate coverage remained speculative at the time of Costello's motion. 

The issue of Cunningham's coverage only becomes relevant if a factfinder 

awards damages to plaintiff attributed to Cunningham's negligence. At that 
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time, Cunningham, its assignee, or plaintiff, if he is found to have standing, may 

have a potential claim against Costello. But that issue does not arise until 

plaintiff has an unsatisfied judgment against Cunningham.

However, the court acted prematurely in dismissing plaintiff's claims 

against Costello with prejudice. Plaintiff must be afforded the opportunity to 

litigate his claims against Cunningham and the other defendants. If plaintiff 

prevails and obtains a judgment against Cunningham, which Cunningham does 

not satisfy, plaintiff may decide to pursue his claims against Costello. 

The claims against Costello are separate from those asserted against the 

other defendants. Because plaintiff alleges professional negligence against the 

broker, those claims are subject to a six-year statute of limitations. 

For the above reasons, we reverse the court's order dismissing the 

complaint with prejudice. We remand to the trial court for entry of an order 

dismissing the complaint against Costello without prejudice. 

Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.