Akhtar v. JDN Properties at Florham Park, L.L.C.
109 A.3d 228
N.J. Super. Ct. App. Div.2015Background
- Plaintiffs (Dr. Humayun Akhtar and spouse) bought a lot from developer JDN FP where Casey & Keller engineer Michael Lanzafama prepared grading and retaining wall plans; construction deviated from the original design to increase wall height/length without municipal approval or a separate permit.
- Borough engineer requested assurance the retaining wall complied with manufacturer specs; Lanzafama inspected post-construction, reviewed crew measurements and photographs, observed geogrid and drainage, and issued a letter stating the wall was built per specifications; a temporary certificate of occupancy issued soon after.
- After closing plaintiffs discovered foundation cracking and house movement; their expert (Naughton) testified the wall’s questionable long-term stability and poorly compacted fill caused settlement; a surveyor (Grant) measured modest easterly movement of the wall.
- Defendant’s experts and contractor testified the wall was built according to manufacturer specs, showed minimal movement consistent with design flexibility, and the house damage was caused by improperly compacted fill beneath the foundation, not wall failure.
- Procedurally: an initial judge granted plaintiffs partial summary judgment on liability (no defense expert rebutting Naughton); a second judge vacated that order and sent the case to trial; a jury returned a no-breach verdict for Casey & Keller and the trial court denied a new trial or directed verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs were entitled to summary judgment on liability | Naughton’s uncontradicted expert opinion established breach as a matter of law | Credibility of Naughton and factual predicates (inspection, measurements, whether CO relied on letter) were disputed | Vacated initial partial summary judgment; summary judgment denied — factual disputes warranted trial |
| Whether trial judge should have granted directed verdict | Absence of a defense expert directly rebutting Naughton required judgment | Evidence and inferences could support differing conclusions; credibility and factual disputes for jury | Directed verdict denied; reasonable minds could differ |
| Sufficiency of expert opinion where factual predicates are contested | An expert’s opinion is controlling if unrebutted | Expert opinion has probative value only when tied to facts; disputed factual predicates undermine it | Expert’s opinion not dispositive when underlying facts are reasonably disputable |
| Whether reconsideration of interlocutory summary judgment was proper | Plaintiffs argued finality of first grant | District judge may revisit interlocutory orders and coordinate-judge rulings when justice requires | Reconsideration upheld; second judge acted within discretion under law-of-the-case and interlocutory revision principles |
Key Cases Cited
- Lombardi v. Masso, 207 N.J. 517 (recognizes interlocutory orders, including summary judgment, are revisable in interests of justice)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (summary judgment standard and view of evidence in light most favorable to nonmovant)
- Polzo v. County of Essex, 209 N.J. 51 (treatment of summary judgment standard and deference to factfinder on credibility)
- D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109 (uncorroborated testimony may still be credited but credibility is for jury)
- Cameco, Inc. v. Gedicke, 299 N.J. Super. 203 (expert testimony must be sufficiently connected to record facts to be entitled to credence)