CONTRACTS | ENVIRONMENTAL LAW
11-2-5316 Borough of Berlin v. Remington & Vernick Engineers, App. Div. (per curiam) (23 pp.) Plaintiff Borough of Berlin appeals from the order granting defendants Remington & Vernick Engineers, Inc. (“R&V”) and A.C. Schultes, Inc. summary judgment, and an interlocutory order denying Berlin’s cross-motion for change of venue. Defendants cross-appeal from the interlocutory denial of their motions to dismiss the complaint based upon Berlin’s alleged violation of a “standstill agreement” entered into by the parties in 2007. In 1994, Berlin retained R&V to plan and construct two wells and to obtain from New Jersey’s Department of Environmental Protection (“DEP”) a water allocation permit. In 1997, Berlin began receiving complaints from residents concerning unpleasant odors in the water supply from one of the wells. Well tests indicated significant concentrations of isopropylmethoxypyrazine in the surface water and adjoining wetlands area. The well had to be closed because the odors exceeded DEP’s safe drinking water standards. Berlin filed a complaint and several amended complaints followed. Ultimately, a third judge concluded that since Berlin had no expert proof as to damages, defendants were entitled to summary judgment. On appeal, Berlin argues that its expert professional engineer was qualified to render opinions regarding damages, and his opinions must be considered in light of those expressed by Berlin’s hydrogeologist and liability expert. Berlin contends that when taken together, the experts’ opinions were sufficient to demonstrate both liability and proximately-caused damages. Berlin added DEP as a defendant in its second post-agreement complaint. It then promptly settled the dispute with DEP. Berlin’s settlement with the DEP does not affect the defendants’ rights in the present suit, and therefore does not violate the agreement. The appellate panel reverses the grant of summary judgment to defendants, affirms the denial of the requested change of venue, and affirms the order denying defendants’ motion to dismiss Berlin’s complaint because of any alleged violation of the agreement.
