NOT FOR PUBLICATION [Docket Nos. 82, 83, 84 and 85]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY 

________________________________

:

LYNNE S. MUSULIN, et al., :

 :Civil Action No. 11-770(RMB/KMW)

Plaintiffs, :

:

 v. : MEMORANDUM ORDER

:

GARDNER FOX ASSOCIATES, et al., :

:

Defendants. :

_______________________________________ :

THIS MATTER comes before the Court upon several motions for

summary judgment. For the reasons that follow, the Court shall

deny or dismiss each motion.

In April 2008, Nicholas and Lynne Musulin contracted with

the defendant Gardner Fox Associates, Inc. (“Gardner Fox”) to

remodel their residence in Marlton Township, New Jersey. Gardner

Fox subcontracted with the defendant Pearse Construction, Inc.

(“Pearse Construction”) for the framing and cabinetry, which, in

turn, subcontracted with Cahal O’Kane Custom Carpentry for the

carpentry work.

On December 20, 2008, as Nicholas Musulin was walking up a

set of temporary stairs, one of the treads came loose. He fell,

severely injuring his back. Mr. Musulin underwent various

medical procedures and suffered several medical complications and

infections. On June 29, 2009, Nicholas Musulin tragically passed

away.
On December 28, 2010, Plaintiff Lynne S. Musulin brought

this Wrongful Death and Survival Action on behalf of herself, her

heirs, and the estate of Nicholas Musulin. The matter was

removed to this Court on February 10, 2011, pursuant to 28 U.S.C.

§§ 1332 and 1141 (diversity of citizenship.)

The Court now addresses each of the pending motions for

summary judgment.

Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A fact is “material” if it will “affect the outcome of

the suit under the governing law . . . .” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if

it could lead a “reasonable jury [to] return a verdict for the

nonmoving party.” Id. When deciding the existence of a genuine

dispute of material fact, a court’s role is not to weigh the

evidence: all reasonable “inferences, doubts, and issues of

credibility should be resolved against the moving party.” Meyer

v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). 

However, a mere “scintilla of evidence,” without more, will not

give rise to a genuine dispute for trial. Anderson, 477 U.S. at

252. 

2
Plaintiff’s Motion for Summary Judgment as to Liability

Against Gardner Fox. [Docket No. 82]. 

Plaintiff seeks summary judgment against Gardner Fox,

arguing that the defendant was negligent at the work site. 

Gardner Fox concedes that it owed a duty of care to Plaintiff’s

decedent, but that issues of fact remain as to (1) how the

accident occurred, (2) whether Gardner Fox broached its duty of

care, and (3) whether or not the condition was unreasonably

dangerous. After having read through the parties’ lengthy

submissions, the Court agrees with Gardner Fox. (The Court

hastens to note, however, that the Court does not deny summary

judgment solely on the basis that counsel inadvertently failed to

file a proposed order). Summary judgment is therefore DENIED. 

Gardner Fox’s Motion for Partial Summary Judgment on

Liability Against Pearse Construction [Docket No. 84].

Gardner Fox brings a motion for partial summary judgment as

to liability on its breach of contract count, Count IV of the

Cross Claim. Specifically, Gardner Fox argues that per the terms

of its contract with Pearse Construction, the defendant had an

obligation to obtain insurance naming Gardner Fox as an

additional insured. Pearse Construction opposes the motion,

arguing, inter alia, that there is a genuine material dispute as

to whether or not a contract exists. The Court finds, giving all

favorable and reasonable inferences to the non-moving party, that

there is a genuine dispute regarding whether the contract was

3
signed by Gardner Fox with authorization of Pearse McAleese or

anyone at Pearse Construction. This motion is therefore DENIED. 

Remaining Motions [Docket Nos. 83 and 85].

Gardner Fox brings two additional motions: (1) a motion for

an order granting partial summary judgment on Plaintiff’s claims

arising out of a loss of companionship [Docket No. 83]; and (2) a

motion for an order granting partial summary judgment on

Plaintiff’s claim relative to the purported loss value of Coward

Environmental Services, Inc. [Docket No. 85]. Plaintiff has

filed an opposition to both motions. The Court DISMISSES both

motions as premature. Such motions are more properly the subject

of motions in limine to be decided by the Court at the time of

trial, if necessary. Accordingly, these motions are

administratively terminated, and Gardner Fox may seek to

reinstate them at the time set by the Court for the filing of in

limine motions.

Accordingly, it is on this 4th day of February 2014, ORDERED

as follows:

(1) Plaintiff’s motion for summary judgement be and is

hereby DENIED, [Docket No. 82];

(2) Defendant Gardner Fox’s motion for partial summary

judgment be and is hereby DENIED, [Docket No. 83]; and

4
(3) Defendant Gardner Fox’s motions for partial summary

judgment are hereby ADMINISTRATIVELY TERMINATED, [Docket Nos. 84

and 85].

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

5