LACROCE v. M. FORTUNA ROOFING, INC. et al
Filing
84
OPINION. Signed by Judge Jerome B. Simandle on 12/12/2017. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SAVERIO LACROCE,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-7329 (JBS/KMW)
v.
M. FORTUNA ROOFING, INC. AND
MICHAEL FORTUNA,
OPINION
Defendants
APPEARANCES:
Salvatore J. Siciliano, Esq.
SICILIANO & ASSOCIATES, LLC
16 South Haddon Ave., P.O. Box 25
Haddonfield, NJ 08033
Attorney for Plaintiff
John J. Delany, III, Esq.
DELANY McBRIDE
36 Euclid St.
Woodbury, NJ 08096
Attorney for Defendants M. Fortuna Roofing, Inc. and
Michael Fortuna
SIMANDLE, District Court Judge:
INTRODUCTION
Pending before the Court is a motion for summary judgment
filed Defendants M. Fortuna Roofing, Inc. (hereinafter, “Fortuna
Roofing”) and Michael Fortuna (hereinafter, “Fortuna”)
(collectively, “Defendants”).
The motions arise from a breach
of contract and negligence action in which Plaintiff Saverio
Lacroce (hereinafter, “Plaintiff”) filed suit against Defendants
after an alleged malfunctioning of a newly-installed Polyglass
roof on his commercial property.
For the following reasons,
Defendants’ motion for summary judgment is granted in part and
denied in part.
BACKGROUND1
A. Factual Background
On September 22, 2011, Defendants entered into a written
agreement with Plaintiff for the installation of an
approximately 56,000 square-foot roof system consisting of white
Polyglass “G Torch” applied surface material at Plaintiff’s
property on 815 Hylton Road, Pennsauken, New Jersey 08110. (Pl.
Br., Ex. A.) The contract price of $89,000 was paid in full by
Plaintiff. (Pl. Br., ¶ 2.) Defendant obtained the necessary
permit in October 2011, and the roof installation was reportedly
completed in January 2012.
Shortly following the conclusion of the roof installation,
it became apparent to Plaintiff that the roof was not
1
The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits
accompanying both pending motions for summary judgment. Because
Defendants failed to oppose either motion, all facts contained
within the Third-Party Defendants’ Statements of Material Facts
are deemed admitted for the purposes of this motion. See L. Civ.
R. 56.1(a)(“[A]ny material fact not disputed shall be deemed
undisputed for the purposes of the summary judgment motion.”).
2
functioning properly, as water began to intrude into the
building, causing damage and complaints from Plaintiff’s
tenants. (Id. at ¶ 4.) Immediately, in order to get a prompt
resolution, Plaintiff contacted Defendant Michael Fortuna via
telephone. From 2012 through 2014, Plaintiff called Defendant
approximately 252 times in an attempt to have Defendants fix the
roof and honor the twelve-year warranty that was provided in the
agreement. (Pl. Br., Ex. B.) During this time period, Defendants
attempted to fix the roof. (Pl. Br. at 2.) However, the
Defendants’ proposed remedies only served as short-term,
temporary fixes. (Id.)
On May 24, 2013, Plaintiff sent a letter to Defendants,
stating “Units [were] withholding rent. When will [P]olyglass2
rep be on site? I know you service the roof when I call,
however, a new point of view is necessary.” (Pl. Br., Ex. C.)
Due to Defendants’ failure to respond, Plaintiff sent the same
letter to Defendants via telefacsimile. (Pl. Br., Ex. D.)
Thereafter, in mid-July 2013, Polyglass USA was alerted of the
water intrusion, and the manufacturer sent their National
2
Polyglass USA, the manufacturer of the white polyglass “G
Torch” that Defendants installed, was previously named as a
Third-Party Defendant. However, the Court granted Polyglass
USA’s unopposed motion for summary judgment, thus dismissing the
manufacturer from the case. See Lacroce v. M. Fortuna Roofing,
Inc., Civil Action No. 14-7329 (JBS/KMW), 2017 U.S. Dist. LEXIS
12957 (D.N.J. Jan. 31, 2017).
3
Technical Services Manager to the site in order to perform an
examination of the subject roof. (Id.) On July 23, 2013,
following the site visit, Polyglass USA’s
Technical Services
Manager, wrote a letter to Defendant Michael Fortuna, advising
that their review revealed “various application related
concerns” and conditions that were “not compliant with Polyglass
and other industry published requirements.” (Pl. Br., Ex. E.) It
was further determined that “water intrusion concerns [were] a
result of product application and not related to any type of
manufacturing deficiency.” (Id.)
On February 27, 2014, Plaintiff’s counsel received an
electronic mail from Defendants stating that:
"There is no contenting (sic) that there are
issues at this property, we have been out several
time including, in the past months ... we are
glad to address any and all of Sam's issues;
however its weather conditions that are holding
us back .. .I don't want to band aid this roof, I
want it right, but to this point this winter, we
can only do temp repairs till the weather breaks,
I can put crews roof techs from [P]olyglass, to
do saturation test for area waterproofing and
correct issues."
(Pl. Br., Ex. G.)
On March 14, 2014, Plaintiff received correspondence from
Robert Sears, a tenant setting forth in detail the damages to
his rental spaces at 815 Hylton Road, and requesting that
Plaintiff reimburse him for all damages incurred, including rent
and electricity payments, estimated to total over $30,000.
4
(Pl.
Br., Ex. J.) Plaintiff’s counsel forwarded this letter to
Defendants and informed Defendant Michael Fortuna that they
would seek the Court’s intervention if all problems associated
with the roof was not cured by April 1, 2014. (Pl. Br., Ex. K.)
On March 26, 2014, Defendant Fortuna informed Plaintiff’s
counsel that the roof service work was in progress, and “as the
weather improve[d][,] [they] would be on site to continue to
resolve all issues.” (Pl. Br., Ex. L.) On April 10, 2014,
Plaintiff’s counsel sent correspondence to Defendant Michael
Fortuna regarding his request for an HVAC inspection and further
advising and placing on notice that another tenant at the
subject property had suffered water damage due to the leaky
roof. (Pl. Br., Ex. M.) The tenant also indicated that he had
sustained damages of approximately ten thousand dollars
($10,000) for a copier machine. (Id.)
From May 2014 forward, Defendants never returned to the
subject property, as instructed by their insurance company
(Travelers Insurance). (Pl. Br., Ex. W 79:6-23.)
During Mr.
Fortuna's second deposition on January 29, 2016, he stated that
he would have continued attempting to fix the roof and would
have still been there, pursuant to his warranty, but he was
notified to cease doing so by his insurance company. (Id.) From
May 2014 to November 2014, Plaintiff attempted to resolve this
situation through Defendant’s insurance company, but, due to a
5
settlement offer that was “well under the cost of a replacement
roof”, that effort was unsuccessful.
(Pl. Br., ¶¶ 21-29, Ex.’s
N, O, P & R.)
During his first deposition in connection with this
litigation, Defendant Michael Fortuna testified that “[a]s the
contractor on record, [he] would be at fault.” (Pl. Br., Ex. T
250-51:18-3.) Fortuna made similar concessions during his second
deposition. (Pl. Br., Ex. W 79:10-23.)
On December 29, 2015,
Mark Lichter, President and Owner of Third-Party Defendant APlus Roofing3 was deposed. During his deposition, Mr. Lichter
stated that Defendant Michael Fortuna “has never paid [him]
and/or [his] company, not one penny.” (A-Plus Dep. 33:11-16.)
Regarding the cash receipts produced by Defendant, purporting to
show cash payments to A-Plus for their work on Plaintiff’s roof,
Mr. Lichter stated that he did not recognize the dates or
amounts “at all.” (Id. at 33:20-24.)
In May 2016, Plaintiff’s Expert, Joseph R. Heidt, RRC, CDT
of Roof Management Services, Inc., prepared a "Roof System
3
The Court granted Third-Party Defendant A-Plus’s unopposed
motion for summary judgment, reasoning that there was “no
evidence in the record of the terms of any written or oral
contract between the parties involving the installation of the
roof,” and there was no evidence that “A Plus failed to exercise
reasonable care normally possessed by members of the roofing
profession.” Lacroce v. M. Fortuna Roofing, Inc., Civil Action
No. 14-7329 (JBS/KMW), 2017 U.S. Dist. LEXIS 12957, at *12-15
(D.N.J. Jan. 31, 2017).
6
Evaluation Support" report addressing causation and liability.
(Pl. Br., Ex. X.) This report addressed the status of the
existing roof at 815 Hylton Road, Pennsauken, NJ. Mr. Heidt
concluded that Defendants were deficient in both the application
of asphalt roof cement and the overall condition of the roof
system, which demonstrated a “lack of care, training or
understanding of accepted standards . . ..” (Id.) Mr. Heidt
further opined that “the Owner and his Tenants have experienced
water penetration and related consequential damages” resulting
from Defendant's deficiencies in installation. (Id.)
Additionally, Mr. Heidt's report cited directly to the
International Building Code ("IBC"), New Jersey Edition, and
details nine instances where Defendants committed a “Breach of
Duty or Deviation from Accepted Standards” in relation to the
work on Plaintiff’s roof. (Id.) These include Defendant's
“improper torching of the Polyflex G membrane” or “application
of asphalt roof cement on membrane laps.” (Id.) Mr. Heidt
carefully details the “lack of care, training, or experience”
indicated by Defendant's work. (Id.)
B. Procedural History
Plaintiff filed a Complaint against Defendants, asserting
breach of contract and negligence claims. [Docket Item 1.]
In
addition to filing their Answer to Plaintiff’s Complaint,
Defendants brought a Third-Party Complaint against Third-Party
7
Defendants Polyglass and A Plus. [Docket Item 8.]
Both Third-
Party Defendants filed Motions for Summary Judgment [Docket
Items 56, 57.], which Defendants/Third-Party Plaintiffs did not
oppose. These motions were ultimately granted, thus dismissing
the Third-Party Defendants from this action. See Lacroce v. M.
Fortuna Roofing, Inc., Civil Action No. 14-7329 (JBS/KMW), 2017
U.S. Dist. LEXIS 12957 (D.N.J. Jan. 31, 2017). Subsequently,
Defendants filed the present motion for summary judgment, which
Plaintiff opposed. [Docket Items 73, 79, 80, 81, 82.]
STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating 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); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Hunt v. Cromartie,
526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007). Credibility determinations are not appropriate
8
for the court to make at the summary judgment stage. Davis v.
Portline Transportes Maritime Internacional, 16 F.3d 532, 536
n.3 (3d Cir. 1994).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “’need not match, item for item, each piece of
evidence proffered by the movant,’” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)(quoting
Anderson, 477 U.S. at 252).
DISCUSSION
Defendants argue that their motion for summary judgment
should be granted because (1) “Plaintiff’s cause of action for
Negligence is barred by the Economic Loss Doctrine; (2)
“Plaintiff cannot prove the necessary causation link between
breach and damages”; (3) “Plaintiff’s claims against Defendant
Michael Fortuna must be dismissed as a matter of law, as
Defendant cannot be held personally liable for any alleged
damages arising out of performance of the contract between
Plaintiff and Defendant M. Fortuna Roofing, Inc.” (Def. Br. at
5.) The Court will address these arguments below individually.
9
A. The Economic Loss Doctrine does not bar Plaintiff’s
Negligence claim
Defendants argue that Plaintiff’s negligence claim is
barred by the economic loss doctrine because “[Plaintiff’s
negligence claim] is nothing more than a contract claim “in tort
claim clothing.” (Def. Br. at 11.) Although the Court recognizes
that New Jersey state courts rarely find a tort remedy to arise
from a contractual relationship, the Court finds that this case
presents one of the exceptional circumstances where such a
finding would be appropriate.
Under New Jersey law, “[a] tort remedy does not arise from
a contractual relationship unless the breaching party owes an
independent duty imposed by law.” Saltiel v. GSI Consultants,
Inc., 170 N.J. 297 (N.J. 2002); The doctrine strives to
delineate the boundary separating contract and tort by barring
tort theories when the relationship between parties is
contractual. See Dean v. Barrett Homes, Inc., 204 N.J. 286, 295,
(2010). Indeed, the New Jersey Supreme Court has declared “that
the purpose of a tort duty of care is to protect society's
interest in freedom from harm, i.e., the duty arises from policy
considerations formed without reference to any agreement between
the parties[] whereas [a] contractual duty, by comparison,
arises from society's interest in the performance of promises.”
Spectraserv, Inc. v. Middlesex Cnty. Util. Auth., 2013 N.J.
10
Super. Unpub. LEXIS 2173, 2013 WL 4764514, at *6 (N.J. Super.
App. Div. July 25, 2013) (internal quotations omitted). Thus,
“it has long been the law that remedies in tort relating to a
breach of contract may not be maintained in addition to those
established under the contract itself in the absence of any
independent duty owed by the breaching party to the plaintiff.”
Int'l Minerals & Mining Corp. v. Citicorp N. America, Inc., 736
F. Supp. 587, 597 (D.N.J. 1990).
The Court finds the facts of this case to be comparable to
another case heard in this District Court. See McRory v.
Zappolo, Civil Action No. 06-3251, 2007 U.S. Dist. LEXIS 80137
(D.N.J. Oct. 29, 2007). In McRory, the plaintiff entered into a
contract with the defendant, a contractor, under which the
defendant was to perform renovations to the plaintiff’s vacation
home in exchange for $100,845. Id. at *2. Unfortunately, due to
the defendant contractor’s failure to complete the renovations
before the winter season and failure to properly protect the
property from the winter’s weather elements, the plaintiff’s
property sustained serious water damage. Id. The plaintiff
sought to hold the defendant contractor liable for breach of
contract and negligence. Id. at *3. The defendant contractor
argued that plaintiff’s negligence claim was impermissible
because he owed the plaintiff no duty independent of those
11
imposed by the contact itself. Id. at *9. However, the court
rejected this argument.
In reaching its decision, the court applied the guidelines
provided in Mea Constr. Corp. v. Harper, 203 N.J. Super. 486,
(N.J. Super. Ct. App. Div. 1985)(providing guidelines to assist
in distinguishing between tort and contract claims). The
guidelines consisted of the following:
(1) Obligations imposed by law are tort obligations;
(2) Tort obligations may not be disclaimable;
(3) Misfeasance or negligent affirmative conduct in
the performance of a promise generally subjects
an actor to tort liability as well as contract
liability for physical harm to persons and
tangible things;
(4) Recovery of intangible economic loss is generally
determined by contract;
(5) There is no tort liability for nonfeasance, i.e.,
for failing to do what one has promised to do in
the absence of a duty to act apart from the
promise made;
(6) Duties of affirmative action are often imposed by
law apart from the promises made;
(7) Damages for a loss suffered by a promisee in
reliance on a promisor to carry out a promise may
be recoverable on a tort negligence theory.
Id. at 276 (citing W. PAGE KEETON ET AL., PROSSER & KEETON ON
THE LAW OF TORTS, § 92, at 655 (5th ed. 1984)).
In New Mea Construction Corporation v. Harper, a case where
the crux of a negligence counterclaim was that the builder
12
failed to properly supervise construction, which resulted in the
use of lesser quality material than specified by the contract,
the Appellate Division held that homeowner’s negligence
counterclaim could not be maintained because, pursuant to the
first guideline, “the obligation to use materials specified by a
contract was not an independent duty imposed by law.” Id. at
494. Also, the Appellate Division applied the fourth guideline
and explained that the injury suffered was not the type
ordinarily alleged in a tort case because "there was no personal
injury or consequential property damage arising from a traumatic
event." Id.
The McRory court distinguished its case from New Mea
Construction Corporation v. Harper on the grounds that the
defendant contractor in McRory did, in fact, owe a legal duty to
the plaintiffs – the general legal duty to avoid damaging
another person’s property. McRory, supra, at *12. Additionally,
the court found that “the nature of the injuries sustained by
the plaintiff homeowner sounded in tort”, as the plaintiff
alleged severe water damage to her home.
Applying these same guidelines to the present case, the
Court finds that Defendants owed Plaintiff Saverio Lacroce an
independent legal duty to refrain from damaging his property.
Moreover, the Court finds that Plaintiff alleged injuries
commonly associated with tort cases. Particularly, Plaintiff
13
alleges that Defendants’ negligence caused “severe repeated
water intrusion damage” to his property. (Compl. at 7, ¶ 10.)
Therefore, the Court finds that the economic loss doctrine does
not bar Plaintiff’s negligence claim.
B. Plaintiff produced sufficient evidence to establish a
genuine dispute as to the causation element of
Plaintiff’s Breach of Contract and Negligence claims
Defendants aver that their motion for summary judgment
should be granted because “Plaintiff cannot prove the necessary
causation link between breach and damages” in order to sustain
its breach of contract and negligence claims, “as there is not a
single piece of evidence that conclusively links any purported
defective workmanship on the part of Defendants to the damage
alleged by Plaintiff.” (Def. Br. at 5.) The Court is not
persuaded by this argument.
To sustain a negligence claim, the following elements must
be proven: (1) a duty of care, (2) a breach of that duty, (3)
proximate cause, and (4) actual damages. Townsend v. Pierre, 221
N.J. 36 (N.J. 2015)(internal citations omitted). Proximate cause
is defined as “’any cause which in the natural and continuous
sequence, unbroken by an efficient intervening cause, produces
the result complained of and without which the result would not
have occurred.’” Conklin v. Hannoch Weisman, 145 N.J. 395, 418,
(N.J. 1996) (internal citations omitted).
14
To sustain a breach of contract claim, plaintiffs must
satisfy the following elements: (1) a contract; (2) a breach of
that contract; (3) damages flowing therefrom; and (4) that the
party performed its own contractual duties. See Pub. Serv.
Enter. Group, Inc. v. Phila. Elec. Co., 722 F.Supp. 184, 219
(D.N.J. 1989) (internal citation omitted); Nat'l Util. Serv.,
Inc. v. Chesapeake Corp., 45 F. Supp. 2d 438, 448 (D.N.J. 1999).
The essential elements of a prima facie claim for breach of
contract are: (i) a valid contract, (ii) defective performance
by the defendant, and (iii) resulting damages. Coyle v.
Alexander's, 199 N.J. Super. 212, 223 (App. Div. 1985).
In its moving papers, Defendants only challenge Plaintiff’s
production of evidence as to the element of causation, which, as
indicated above, is necessary for both of Plaintiff’s causes of
action. Thus, the Court will only address evidence of causation.
Accordingly, the Court notes that Plaintiff has produced the
expert report of Joseph R. Heidt, RRC, CDT of Roof Management
Services, Inc., which addresses causation and liability. (Pl.
Br., Ex. X.) Specifically, after noting the various
“construction (workmanship) deficiencies4” attributed to
Defendants’ “lack of care, training or understanding of accepted
4
The expert opined that his examination of the subject roof
revealed significant non-conformance to the requirements of the
Building Code and Polyglass installation criteria. (Pl. Br., Ex.
X at 17.)
15
standards . . . as it relates to the installation of torch fused
modified bitumen membrane roofing on non-residential
structures”, Mr. Heidt concluded that the “water penetration and
related consequential damages” were a result of said
deficiencies. (Id. at 15-17.) Though Defendant attempts to
undermine the expert report by arguing that “[n]owhere in Mr.
Heidt’s report is there any explanation of how this alleged
deviation caused or contributed to his conclusion/opinion that
the alleged deficiencies caused water penetrations(Def. Br. at
13).” the Court finds that, giving all reasonable inferences to
Plaintiff as the non-moving party to this motion for summary
judgment, a reasonable fact-finder could find that Defendants’
alleged failure to adhere to the accepted standards related to
the installation of Plaintiff’s roof to be the cause of water
damage to the Plaintiff’s property. Therefore, the Court finds
that Plaintiff has presented sufficient evidence to establish a
material factual dispute as to the requisite causation element
to both of Plaintiff’s causes of action.
C. Defendant Michael Fortuna can be held personally liable
for Negligence under the Participation Theory
In rare instances, New Jersey courts have applied the
"participation theory" to hold corporate officers personally
liable for tortious conduct. See Saltiel, supra, 170 N.J. at
315. "[T]he essence of the participation theory is that a
16
corporate officer can be held personally liable for a tort
committed by the corporation when he or she is sufficiently
involved in the commission of the tort." Id. at 303. However, as
aforementioned, “a tort remedy does not rise from a contractual
relationship unless the breaching party owes an independent duty
imposed by law." Int'l Minerals & Mining Corp. v. Citicorp N.
America, Inc., 736 F. Supp. 587, 597 (D.N.J. 1990).
Here, there does not seem to be any dispute that Defendant
Michael Fortuna was substantially involved in the installation
of the Polyglass roof and the failed or delayed efforts to
remedy the alleged deficient installation which led to further
water damage. Rather, Defendant simply argues that “Plaintiff
has failed to identify any outside, independent duty that
Defendant Michael Fortuna owed to Plaintiff that is separate and
apart from those owed by M. Fortuna Roofing, Inc. under the
contract.” (Def. Br. at 10.) However, as stated above, the Court
finds that Defendant Michael Fortuna did owe Plaintiff a duty
independent of the contract between Defendant Fortuna Roofing
and Plaintiff – a duty to refrain from damaging Plaintiff’s
property through neglect. For this reason, the Court finds that,
at the very least, Plaintiff has produced sufficient evidence to
establish a material factual dispute as to whether Defendant
Michael Fortuna can be held personally liable for negligence.
17
However, as discussed below, this does not save Plaintiff’s
breach of contract claim seeking to hold Defendant Michael
Fortuna personally liable, as next discussed.
D. Defendant Michael Fortuna cannot be held personally
liable for Breach of Contract
Plaintiff seeks to hold Defendant Michael Fortuna
personally liable for Breach of Contract (First Count) and in
connection with the aforementioned installation and subsequent
repairs of the Polyglass roof on Plaintiff’s property. (Compl.
at 5.) Defendant Michael Fortuna, however, avers that no
personal liability can be imposed on him for breach of contract
because he signed the contract with Plaintiff only on behalf of
the company, Defendant M. Fortuna Roofing, Inc., and “Plaintiff
cannot, and has not, pointed to any clear and explicit evidence
in the record that indicates an agreement in which Defendant
Fortuna intended to take on any personal liability in this
matter.” (Def. Br, at 5.) The Court agrees.
"Unless the corporate officer extends promises in his
individual capacity, the participation theory does not apply in
the context of an action for breach of contract." Walsh v. Alarm
Sec. Grp., Inc., 95 F. App'x 399, 402 (3d Cir. 2004) (citing A &
F Corp. v. Bown, 1996 U.S. Dist. LEXIS 12066, No. 94-CV-4709,
1996 WL 466909, at *5 (E. D. Pa. Aug. 15, 1996)(internal
citations omitted).
18
The Court finds that there is simply nothing in the record
to support an argument that Defendant Michael Fortuna made any
promises in his individual capacity. In fact, a review of the
record indicates that it is clear that Defendant Michael
Fortuna, owner of Defendant M. Fortuna Roofing, Inc., signed the
contract with Plaintiff on behalf of M. Fortuna Roofing, Inc.,
as the company name was clearly disclosed on the contracts, work
orders, and communications related to this project. (See Def.
Br., Ex. B.) Moreover, the Court notes that Plaintiff’s
mischaracterization of excerpts from Defendant’s deposition
testimony as admissions of personal liability are without merit,
as a review of the complete deposition testimony clearly
suggests otherwise. (See Def. Br., Ex. C, 117:23118:5)(Plaintiff’s attorney indeed clarified that when he
referred to “you”, he was “not referring to [Michael Fortuna]
individually”, but referring to Fortuna Roofing)). For this
reason, the Court finds that Plaintiff’s breach of contract
claim against Defendant Michael Fortuna, in his individual
capacity, will be dismissed.
CONCLUSION
Defendants’ motion for summary judgment is granted in part
and denied in part. Specifically, Defendants’ motion for summary
judgment is granted with respect to Plaintiff’s breach of
19
contract claim against Defendant Michael Fortuna. However,
Plaintiff’s remaining claims shall proceed consisting of
negligence claims against both Defendants and the breach of
contract claim against M. Fortuna Roofing, Inc. An accompanying
Order will be entered.
December 12, 2017
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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