07-2-8586 Harris v. New Jersey, App. Div. (per curiam) (7 pp.) Plaintiff, convicted of numerous offenses, including aggravated assault and unlawful possession of a weapon, and sentenced to seven years’ imprisonment with an 85 percent period of parole ineligibility, filed a complaint against nearly two dozen public and private defendants, asserting various causes of action. The complaint was dismissed because she failed to serve the defendants. Plaintiff filed a motion to reinstate her complaint, contending that she had been unable to prosecute her case because the prison improperly denied her copy service, in violation of N.J.A.C. 10A:6-2.6, which required the Department of Corrections to provide photocopies of legal materials at no charge to indigent inmates. The judge denied her motion, finding that in light of the flurry of correspondence and motion practice that had occurred, plaintiff had failed to demonstrate the exceptional circumstances necessary to compel the restoration of her suit nearly two-and-a-half years after it was dismissed. On plaintiff’s appeal, the panel affirmed, finding that although the motion judge incorrectly applied the “exceptional circumstances” standard to plaintiff’s motion and should have applied the “good cause” standard, plaintiff had failed to establish good cause since she failed to provide any evidence to corroborate her claim that the prison ever refused to provide copies of legal documents for her.
09-2-8566 Court Plaza Assocs. v. Wausau Tile, Inc, App. Div. (per curiam) (10 pp.) Plaintiff Court Plaza Associates appealed from the order granting summary judgment to defendant Wausau Tile, Inc. Plaintiff owned a building and sought to replace the exterior steps. Plaintiff issued a purchase order to defendant which specified that defendant must manufacture the steps in accordance with certain plans and specifications. The plans required that the steps conform to the New Jersey Uniform Construction Code, the New Jersey Building Code, and the standards of the American Concrete Institute (ACI). On Oct. 9, 2006, plaintiff sent the plans to defendant. On Nov. 14, 2006, defendant mixed the concrete that it used to manufacture the steps. On Nov. 20, 2006, defendant signed and returned the purchase order to plaintiff. Sometime in December 2006, defendant delivered the steps and on Dec. 29, 2006, issued an invoice to plaintiff for payment. On April 18, 2007, defendant issued a one-year limited warranty for defects caused by poor workmanship in manufacturing. Plaintiff claimed that in the spring of 2010, it discovered defects in the steps. In a second amended complaint, plaintiff alleged that the steps did not conform to ACI standards and defendant manufactured the steps before signing and returning the purchase order. Plaintiff deemed Nov. 20, 2006, the date defendant returned the signed contract, as the contract date. Plaintiff alleged that defendant violated the Consumer Fraud Act by knowingly concealing that the steps were nonconforming and affirmatively misrepresenting on the contract date that the steps were conforming. In its motion for summary judgment, defendant argued that the steps conformed to ACI standards. Alternatively, defendant argued the CFA claims must be dismissed for lack of evidence that it either knew the steps were nonconforming or affirmatively misrepresented the steps were conforming. Plaintiff admitted that defendant did not knowingly conceal the nonconformance but argued that the CFA does not require knowledge to sustain a claim for misrepresentation. Plaintiff reiterated that defendant manufactured the nonconforming steps before the contract date and thus violated the CFA by affirmatively misrepresenting that the steps were conforming. The trial judge found there was no evidence of an unconscionable commercial practice or of a knowing concealment. The appellate panel concluded that defendant was entitled to summary judgment but for reasons other than those expressed by the trial judge. The contract was governed by the New Jersey Uniform Commercial Code; a contract for sale of goods under the UCC may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract, which occurred here. Defendant made the alleged misrepresentation on Nov. 20, 2006, after formation of the contract. Thus, the alleged misrepresentation did not constitute a violation under the CFA.
