NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1144-13T2

GARDEN HOWE URBAN RENEWAL APPROVED FOR PUBLICATION ASSOCIATES, L.L.C., February 26, 2015 Plaintiff-Appellant, APPELLATE DIVISION v.

HACBM ARCHITECTS ENGINEERS PLANNERS, L.L.C.,

Defendant/Third-Party Plaintiff-Respondent,

and

DEL-SANO CONTRACTING CORP.,

Third-Party Defendant.

__________________________________________

Argued January 6, 2015 – Decided February 26, 2015

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L- 1126-11.

Robert C. Scrivo argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo, of counsel; Lawrence S. Cutalo and Andrew Gimigliano, on the briefs). Thomas M. Madden argued the cause for respondent (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, P.A., attorneys; Mr. Madden, of counsel; Mr. Madden and Christine McCarthy on the brief).

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

Plaintiff Garden Howe Urban Renewal Associates, L.L.C.

appeals from an order dated July 2, 2013, barring its expert

report; an order dated July 12, 2013, denying its motion to

adjourn the trial date and extend the time for discovery; and an

order dated September 24, 2013, dismissing its remaining claim

with prejudice. We reverse.

I.

In November 2004, HACBM Architects, Engineers, Planners

L.L.C. ("HACBM") submitted a proposal to plaintiff for

architectural and engineering services to "design and document"

a roof-level addition and various alterations to an existing

four-story building in Passaic (the "Project"). According to the

proposal, the services required included "architecture,

structural engineering, and mechanical, electrical, plumbing,

and fire protection engineering."

The proposal indicated that the services would be provided

in three phases. In the first phase, HACBM would analyze

structural and building codes, review schematic design plans and

2 A-1144-13T2 elevations, and develop preliminary plans, details and

specifications. In the second phase, HACBM would develop the

required "architectural, structural, mechanical, electrical,

plumbing, and fire protection systems in sufficient detail to

set forth the requirements for construction of th[e] project,"

and provide plaintiff with detailed plans and specifications

"for the architectural and engineering systems described." In

the third phase, HACBM would periodically observe and evaluate

the construction progress, and visit the site on a semi-monthly

basis during an eight-month construction period.

On November 19, 2004, James Robbins ("Robbins"),

plaintiff's President, signed the agreement, accepting the

proposal. The parties also executed a "Standard Form of

Agreement Between Owner and Architect for a Small Project" of

the American Institute of Architects ("AIA"), which set forth

the architect's responsibilities (the "Agreement"). The

Agreement stated that "[t]he Architect shall provide

architectural services for the project, including normal

structural, mechanical, and electrical design services. Services

shall be performed in a manner consistent with professional

skill and care."

In October 2008, plaintiff filed a complaint in the Law

Division against HACBM, asserting professional malpractice

3 A-1144-13T2 claims. In January 2009, HACBM filed an answer and counterclaim

against plaintiff. In February 2009, plaintiff served an

Affidavit of Merit (the "AOM") from David V. Abramson

("Abramson"), an architect licensed in New Jersey and New York.

In January 2009, Abramson provided a letter report

concerning certain deficiencies in the construction documents.

Abramson also provided a letter report, dated March 12, 2010,

which addressed the replacement of "an existing means of egress

stair" which was part of the Project ("Stairway No. 2").

Abramson analyzed certain provisions of the "Rehabilitation

Subcode" in the State's Uniform Construction Code ("UCC"),

N.J.A.C. 5:23-6.1 to -6.33. Based on that review, Abramson

concluded that replacement of Stairway No. 2 and a related

structure had not been necessary.

Plaintiff also served a report from Project Control

Associates ("PCA"), dated April 15, 2010, which resulted from

its investigation of the professional design and construction

phase services that HACBM had provided for the Project.

According to the report, the investigation was conducted and the

report prepared by Harold M. Tepper ("Tepper"), a professional

engineer; John Lyssikatos ("Lyssikatos"), a professional

engineer; and Frank M. Graczyk ("Graczyk"), a licensed building

code, fire protection code and mechanical code inspector. The

4 A-1144-13T2 report stated that it had been prepared with Abramson's

assistance.

Robbins was deposed in October 2010. During his deposition,

Robbins indicated that, in addition to other claims against

HACBM, plaintiff was asserting a claim for an alleged

overpayment of approximately $900,000 to the general contractor

on the Project, Del-Sano Contracting Corp. ("Del-Sano"). In

addition, Robbins had authored a report detailing plaintiff's

business-loss claim of about $1,150,000.

Based on Robbins's deposition testimony, HACBM filed a

motion seeking: (1) leave to file a third-party claim against

Del-Sano; (2) to bar PCA's "agents" and Abramson from being

qualified as experts due to concerns that they were acting as

advocates for plaintiff, rather than providing objective expert

opinions; (3) to preclude Robbins from testifying as an expert

as to plaintiff's business losses since he did not have the

qualifications to do so; and (4) to limit Abramson's testimony

to the replacement of Stairway No. 2.

It appears that the trial court did not rule on the motion.

Rather, the parties agreed to the dismissal of the complaint

without prejudice. On March 3, 2011, plaintiff filed a new

complaint against HACBM. On April 12, 2011, HACBM filed an

answer, counterclaim and third-party complaint against Del-Sano.

5 A-1144-13T2 On May 13, 2011, Del-Sano filed an answer to the third-party

complaint, and on May 23, 2011, plaintiff filed an answer to the

counterclaim.

On June 22, 2011, HACBM filed a petition in the United

States Bankruptcy Court under Chapter 7 of the Bankruptcy Act,

, and proceedings in this case were

stayed. The bankruptcy proceedings were completed on March 2,

2012.

On September 13, 2012, plaintiff filed an amended, four-

count complaint against HACBM, which included a claim against

Del-Sano. In count one, plaintiff alleged that HACBM breached

the Agreement by, among other things, failing to address

construction issues as they arose, provide adequate plans to

construct the Project, undertake adequate job supervision,

ensure proper implementation of the plans, and submit complete

plans or revisions when required.

Furthermore, in count two, plaintiff alleged that HACBM was

comprised of licensed architects and that it was negligent since

it failed to meet the minimum standard of care "as set by the

industry" with regard to the services provided for the Project.

In addition, in count three, plaintiff claimed that HACBM

breached a duty to provide architectural services in a non-

negligent manner.

6 A-1144-13T2 Moreover, in count four, plaintiff alleged that HACBM had

contracted with Del-Sano to perform certain services for the

Project. Plaintiff claimed that Del-Sano was obligated to carry

out and implement the plans for construction that HACBM had

prepared. Plaintiff stated that Del-Sano had not done so.

Plaintiff alleged that, if HACBM is not found liable on these

claims, Del-Sano should be held "accountable" for HACBM's

"breaches."

Subsequently, the trial was scheduled for June 24, 2013,

and later rescheduled for July 15, 2013. On April 25, 2013,

HACBM filed a motion to bar PCA and its "agents" from testifying

at trial. Among other things, HACBM argued that PCA's report

should be barred because it was prepared by two professional

engineers and a code official, rather than an architect. HACBM

maintained that these individuals were not qualified to offer

opinions in a case involving claims of architectural

malpractice.

Plaintiff opposed the motion. Plaintiff argued that an

architect had participated in the preparation of the report and

the architect was prepared to testify on all issues. Plaintiff's

counsel acknowledged that the report detailed various claims,

and did not specify which of the authors would address each

claim, but counsel said this could be clarified.

7 A-1144-13T2 The judge considered HACBM's motion on June 21, 2013, and

placed his decision on the record. The judge ruled that

plaintiff's expert report was "inappropriate." The judge pointed

out that this case involved claims of alleged architectural

malpractice and that the report had not been prepared by an

architect. The judge noted that an architect had contributed to

the report, but said that was insufficient. The judge decided

that the report should be barred except for the supplement

pertaining to the replacement of Stairway No. 2. The judge

stated, however, that the authors of the report could testify as

to factual issues.

The judge noted that the case was scheduled for trial in

July of 2013 and suggested that an application be made to

adjourn the trial so that plaintiff could obtain another expert

report, which would be "the fairest way to handle the matter."

The judge entered an order dated July 2, 2013, which

provided in part that: (1) substantially all of the PCA report

is barred; (2) Tepper, Lyssikatos and Graczyk could testify as

to "factual issues"; and (3) Abramson's testimony would be

limited to the replacement of Stairway No. 2.

Plaintiff thereafter made a motion to adjourn the trial

date and to extend the time for discovery. Another judge entered

an order dated July 12, 2013, denying the motion. On the order,

8 A-1144-13T2 the judge noted that the case already had 802 days of discovery,

with five discovery extensions, and that the case had previously

been dismissed without prejudice. The judge concluded that

plaintiff had failed to show exceptional circumstances for a

discovery extension, which was required by the court rules.

The case was called for trial on July 15, 2013, but it was

later rescheduled for trial on September 24, 2013. HACBM

thereafter filed a motion to bar Abramson from testifying that

it had deviated from the applicable standard of care because he

did not include that opinion in his report. The trial judge

noted that Abramson did not set forth an opinion that HACBM had

deviated from the standard of care in his report. The judge

ruled that, because Abramson was limited to the opinions in his

report, he could not testify as to the standard of care and

whether HACBM was negligent.

HACBM then moved for a directed verdict, arguing that

plaintiff could not sustain its burden of proof on the sole

remaining claim in the case, which was the claim regarding

Stairway No. 2. The judge granted the motion and entered an

order dated September 24, 2013, dismissing the complaint with

prejudice. This appeal followed.

On appeal, plaintiff argues: (1) the motion judge abused

his discretion by barring substantially all of the PCA report;

9 A-1144-13T2 (2) the trial court erred by refusing to extend the time for

discovery because plaintiff established exceptional

circumstances for the extension; and (3) the trial judge erred

by entering a directed verdict against plaintiff on the claim

regarding Stairway No. 2.

II.

We first consider plaintiff's contention that the motion

judge mistakenly exercised his discretion by barring

substantially all of PCA's expert report. Plaintiff contends

that the judge erroneously determined that only an architect

could testify as an expert in a case involving claims of

architectural malpractice. Plaintiff further argues that the

judge failed to conduct a "proper" inquiry into the

qualifications of the proposed expert witnesses.

Expert testimony may be offered "[i]f scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in

issue." N.J.R.E. 702. If so, "a witness qualified as an expert

by knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise."

Thus, there are

three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2)

10 A-1144-13T2 the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Kelly,

(citation omitted) (1984).]

In an action involving a claim of professional malpractice,

"[t]he test of an expert witness's competency . . . is whether

[that witness] has sufficient knowledge of professional

standards to justify the expression of an opinion." Carey v.

Lovett,

(1993) (citing Sanzari v. Rosenfeld,

(1961)). The determination of whether a

proposed expert witness has sufficient knowledge of professional

standards is committed to "the sound discretion of the trial

court." Id. at 64. The trial court's decision may not be

reversed unless "clearly shown to be erroneous as a matter of

law." State v. Campisi,

(App. Div. 1956)

(citing Rempfer v. Deerfield Packing Corp.,

(1950)), rev'd on other grounds,

(1957).

Our opinion in Alliance for Disabled in Action, Inc. v.

Continental Props.,

(App. Div. 2004),

aff'd

(2005), is instructive. There, the plaintiff

brought suit against the developers and architect of a

residential housing complex alleging, among other things, that

the developers failed to comply with New Jersey's Barrier Free

11 A-1144-13T2 Subcode (the "Barrier Free Subcode"), N.J.A.C. 5:23-7.1 to -

7.31. In support of its claims, the plaintiff served three

reports from its expert, a person who dealt with handicapped-

accessibility matters for New Jersey Transit, and held a

certificate issued by the State Department of Community Affairs,

evidencing his completion of a course in the requirements of the

Barrier Free Subcode.

.

The trial court dismissed the plaintiff's claims against

the architect, finding that the claims against this defendant

were essentially a claim of architectural malpractice, and the

claims could not proceed without the opinion of a licensed

architect.

. We noted, however, that not all experts

must possess a professional license.

(citing Landrigan v.

Celotex Corp.,

(1992); State v. One Marlin

Rifle,

(App. Div. 1999)).

We concluded that the trial court erred by characterizing

the case as involving a claim of architectural malpractice.

We observed that the plaintiff had not alleged that the

defendant architect had "deviated from the standard of care

governing architects charged with the responsibility for

designing such a project."

We stated that the plaintiff's

"claim was restricted to its allegation that the design of the

project did not comply with the [S]ubcode."

We determined

12 A-1144-13T2 that the plaintiff's expert was qualified to testify as to

whether the complex was built in compliance with the Subcode.

We are convinced that the motion judge in this case

mistakenly barred substantially all of the PCA report merely

because it was not signed by an architect. As we indicated in

Continental Properties, not all experts must possess a

professional license, and whether an expert witness may testify

in a case involving a claim of architectural malpractice will

depend on the claim involved, the specific allegations made, and

the opinions that the expert proposes to offer at trial.

Here, plaintiff is pursuing claims of architectural

malpractice. The PCA report details the standards of care for

each claim being made. The standards of care are based in large

part upon HACBM's alleged failure to comply with the UCC and

several of its subcodes. The standards of care are also based

on, among other things, the rules of professional conduct for

architects, the AIA's Handbook of Professional Practice, and the

Manual of Steel Construction of the American Institute of Steel

(the "Steel Construction Manual").

The motion judge mistakenly failed to consider whether

Tepper and Lyssikatos had sufficient knowledge and experience as

professional engineers to opine as to the requirements of the

13 A-1144-13T2 UCC, the UCC's subcodes, the Steel Construction Manual, and

other structural requirements cited in the PCA report. Moreover,

Graczyk is listed as one of the persons who prepared the report.

According to the report, Graczyk is licensed as a building, fire

protection, and mechanical code inspector. The motion judge

mistakenly failed to consider whether Graczyk had the requisite

qualifications to testify as to the code requirements referenced

in the report and HACBM's alleged failure to meet those

requirements.

In addition, the report states that it was prepared with

Abramson's assistance. While Abramson authored a supplemental

report concerning Stairway No. 2, there is no indication that

his involvement was limited to preparing that supplement. The

motion judge mistakenly failed to consider whether Abramson

assisted with other sections of the report which cited standards

pertaining to architects, and whether he was prepared to testify

as to the opinions set forth in those sections of the report.

Furthermore, we note that the judge's ruling that a

licensed professional engineer may not testify as an expert in a

case involving alleged architectural malpractice is not

supported by the statutes that govern the practice of

architecture and engineering in this state. These statutes

indicate that there is no clear demarcation of the line between

14 A-1144-13T2 services that can be provided by licensed architects and by

licensed engineers.

Architectural practice is regulated in New Jersey pursuant

to N.J.S.A. 45:3-1 to -46. Under this statutory scheme, the term

"architecture" is defined in part as "the art and science of

building design and particularly the design of any structure for

human use or habitation." N.J.S.A. 45:3-1.1c. The licensing

statutes for architects also provide that the practice of

architecture includes

the rendering of services in connection with the design, construction, enlargement, or alteration of a building or a group of buildings and the space within or surrounding those buildings, which have as their principal purpose human use or habitation. These services include site planning, providing preliminary studies, architectural designs, drawings, specifications, other technical documentation, and administration of construction for the purpose of determining compliance with drawings and specifications.

[N.J.S.A. 45:3-1.1k.]

Furthermore, the practice of engineering is subject to

regulation in New Jersey under N.J.S.A. 45:8-27 to -60. The

practice of engineering is defined to include

any service or creative work the adequate performance of which requires engineering education, training, and experience and the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work

15 A-1144-13T2 as consultation, investigation, evaluation, planning and design of engineering works and systems, planning the use of land and water, engineering studies, and the administration of construction for the purpose of determining compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any engineering project including: utilities, structures, buildings, machines, equipment, processes, work systems, projects, telecommunications, or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. The design of buildings by professional engineers shall be consistent with section 7 of the "Building Design Services Act." [N.J.S.A. 45:4B-7].

[N.J.S.A. 45:8-28(b).]

Moreover, the Building Design Services Act (the "BDSA"),

N.J.S.A. 45:4B-1 to -14, recognizes that there is "an area of

concurrent practice between the practice of architecture and the

practice of engineering, specifically in the area of building

design." N.J.S.A. 45:4B-2. Indeed, the BDSA provides that

engineers may design certain kinds of buildings and structures.

See N.J.S.A. 45:4B-7. The BDSA also provides that both

architects and engineers may administer construction "for the

purpose of determining compliance with drawings and

specifications." N.J.S.A. 45:4B-3h to -3i.

16 A-1144-13T2 Thus, the statutes governing the practice of architecture

and engineering in New Jersey recognize that architects and

engineers may both engage in practice that affects building

design. These statutes also allow both architects and engineers

to engage in construction administration, which is the basis for

one of the claims asserted in this case. In addition, some of

the claims asserted by plaintiff relate to design elements that

may implicate "engineering education."

Therefore, the motion judge should have considered whether

some or all of the claims asserted in this case fall within

those areas where the practices of architecture and engineering

overlap, and whether Tepper and Lyssikatos have the requisite

knowledge and experience to offer opinions as to the standards

of care that apply to architects in the performance of any such

services.

We further note that recently, a panel of this court

determined that when a suit claiming malpractice or negligence

is brought against a professional listed in N.J.S.A. 2A:53A-26,

an affidavit of merit ("AOM") is required from a "like-licensed"

professional, except when the claim involves (1) matters of

common knowledge; (2) conduct outside the scope of the

defendant's professional duties; (3) intentional wrongdoing; or

(4) theories of vicarious liability or agency exclusively. Hill

17 A-1144-13T2 Int'l, Inc. v. Atlantic City Bd. of Educ., N.J. Super. __, __

(App. Div. 2014) (slip op. at 35-41).

However, the Hill Int'l case does not apply here because

the issue raised in this appeal does not concern the

requirements of the AOM statute.1 Rather, the issue presented

concerns the qualifications of witnesses to testify as experts

at the trial of a case in which claims of architectural

malpractice are asserted. The admissibility of a proposed

expert's trial testimony is governed by the standards in

N.J.R.E. 702, not the AOM statute.

We therefore reverse the trial court's order barring

substantially all of the PCA report. We remand the matter to the

trial court for reconsideration of HACBM's motion to strike. On

remand, the court should review the specific claims asserted and

the standards of care cited in the PCA report for those claims.

The court should determine whether Tepper, Lyssikatos, Graczyk,

and/or Abramson are qualified to testify at trial as to some or

all of the opinions set forth in the report. The court should

conduct a N.J.R.E. 104 hearing if the parties' written

submissions are insufficient to allow a decision to be made on

these issues.

1 As stated previously, plaintiff served an AOM from Abramson, a licensed architect.

18 A-1144-13T2 III.

We next consider whether the trial court erred by refusing

to extend the time for discovery after the motion judge barred

substantially all of the PCA report.

Here, the motion to extend discovery was subject to Rule

4:24-1(c), which provides in pertinent part that "[n]o extension

of the discovery period may be permitted after . . . [a] trial

date is fixed, unless exceptional circumstances are shown."

In order to extend discovery based upon "exceptional circumstances," the moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Rivers v. LSC Partnership,

(App. Div.) (quoting Vitti v. Brown,

(Law Div. 2003)), certif. denied,

(2005).]

In our view, the trial court mistakenly exercised its

discretion by refusing to extend the time for discovery.

Plaintiff was diligent in pursuing discovery, and served the PCA

report in April 2010. HACBM filed a motion to bar that report in

November 2010, but did not specifically argue that the report

19 A-1144-13T2 should be barred because it was not authored by an architect. As

noted, the court did not rule on the motion at that time because

the parties agreed to the dismissal of the complaint without

prejudice.

The matter was reinstated and plaintiff filed a new

complaint in March 2011. The discovery end date was adjourned

several times. Eventually, the court scheduled the matter for

trial. HACBM did not move to strike the PCA report until after

discovery ended, and for the first time claimed the report

should be barred because it had not been written by an

architect. As we have determined, the motion judge erred in

doing so.

However, even if the judge had correctly decided that most

of the PCA report should be barred, the judge's decision, coming

literally on the eve of trial, presented an exceptional

circumstance that warranted the extension of time for discovery,

particularly since HACBM did not move to bar the report and its

authors' testimony until after discovery had ended. We conclude

that, under the circumstances, the discovery extension should

have been granted.

Therefore, on remand, if the court determines that some or

all of plaintiff's claims require the report and testimony of a

20 A-1144-13T2 licensed architect, it should extend the time for discovery to

allow plaintiff to serve a new report.

IV.

Plaintiff also argues that the trial judge erred by

entering a directed verdict on the claim regarding Stairway No.

2. The trial judge ruled that Abramson could testify as to the

analysis in his report, but could not offer an opinion on the

standard of care because that opinion was not expressly set

forth in the report.

As we have explained, the PCA report states that it was

prepared with Abramson's assistance. The report sets forth the

basis for plaintiff's claim regarding Stairway No. 2. In

essence, plaintiff alleges that HACBM misinterpreted the

Rehabilitation Subcode as requiring the reconstruction of the

stairway and related structure. The PCA report sets forth the

standard of care for the claim, citing several provisions of the

Architect's Handbook of Professional Practice, as well as an

architect's obligation to comply with applicable building codes.

In his separate report, Abramson detailed the provisions of

the Rehabilitation Subcode which he believed applied to the

Project. Abramson stated that an analysis of the relevant

sections of that Rehabilitation Subcode should have been used to

determine whether the existing stairway was adequate. Abramson

21 A-1144-13T2 opined that, based on this analysis, the demolition and new work

on Stairway No. 2 was not necessary. He further opined that the

delays and costs associated with that work were unnecessarily

incurred.

We are convinced that the trial judge mistakenly failed to

consider the relevant section of the PCA report in determining

whether Abramson should be permitted to testify as to the

standard of care applicable to the claim regarding Stairway No.

2. In our view, the judge should have determined whether

Abramson assisted in the preparation of the section of the PCA

report pertaining to the Stairway No. 2 claim, and whether the

opinions stated therein regarding the standard of care were his

opinions.

Moreover, Abramson's separate report concerning Stairway

No. 2 provided a sufficient basis to allow him to testify as to

the standard of care applicable to this claim. In his report,

Abramson stated that HACBM failed to apply the Rehabilitation

Subcode correctly, thereby causing the unnecessary demolition

and additional work on the stairway. Implicit in that report is

the opinion that, by doing so, HACBM deviated from the

applicable standard of care for architects. Abramson should not

have been precluded from so testifying at trial.

22 A-1144-13T2 Reversed and remanded for further proceedings in conformity

with this opinion. We do not retain jurisdiction.

23 A-1144-13T2