NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3434-23
SHORE STAR PROPERTIES, LLC,
Plaintiff-Appellant,
v.
KOLBE & KOLBE MILLWORK CO., INC.,
Defendant-Respondent,
and
NORTH AMERICAN WINDOW & DOOR CO., INC.,
Defendant. _____________________________
Argued September 9, 2025 – Decided September 22, 2025
Before Judges Gilson, Firko, and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0125-20. Katrina M. Register argued the cause for appellant (Trimble & Register, attorneys; Katrina M. Register and John W. Trimble, Jr., on the briefs).
Francis X. Donnelly argued the cause for respondent (Donnelly, Petrycki & Sansone, PC, attorneys; Francis X. Donnelly, on the brief).
PER CURIAM
Plaintiff Shore Star Properties, LLC (Shore Star) appeals from a May 31,
2024 order granting summary judgment in favor of defendant Kolbe & Kolbe
Millwork Co., Inc. (Kolbe). Having considered the record and applicable
principles of law, we affirm.
I.
This case arises out of the sale of custom-made windows and doors
manufactured by Kolbe and sold through a distributor, defendant North
American Window & Door Co., Inc. (NAWD),1 to Correlation Real Estate
Venture, LLC. (CREV). The Kolbe windows and doors were installed in a new
home owned by Shore Star in Avalon (the Project). Robert Corrato is the sole
member of CREV and Shore Star. Christopher D'Angelo was Shore Star's
representative on the Project.
1 Plaintiff's claims against NAWD were previously settled and dismissed. NAWD is not participating in this appeal. A-3434-23 2 In October 2014, Corrato, on behalf of Shore Star, met with NAWD to
review Kolbe's products. Corrato discussed with NAWD "negative comments
about Kolbe products in [a shore] environment." NAWD assured Corrato
"Kolbe['s] products were re-designed, . . . would be functional and defect[ ]free
in [a shore] environment[,] and were . . . quality product[s]." Corrato also
reviewed materials in which Kolbe advertised its products as being "high[-] end
windows and doors" made with the "finest materials" and "crafted with attention
to detail and thoughtful engineering . . . ." Kolbe advertised its "products are
rigorously tested to exceed industry standards for energy[,] efficiency[,] and
performance" and it focuses "on the details, crafting one window or door at a
time, precisely to your specifications."
On March 3, 2015, CREV purchased sixty-four Kolbe windows and eight
Kolbe doors from NAWD. The windows and doors were delivered to CREV in
November 2015, subject to an Express Limited Warranty for Window and Door
Products (the warranty) that provides, in relevant part:
Kolbe . . . warrants that, if installed, finished, maintained[,] and operated in accordance with Kolbe's instructions, non-vinyl WINDOW and DOOR products manufactured by Kolbe . . . shall be free from defects in material and workmanship that would render them unserviceable or unfit for the ordinary use for which each window or door is manufactured, for a period of TEN . . . YEARS from the date of shipment by Kolbe.
A-3434-23 3 ....
In the event of a defect in material or workmanship, which is covered by this [e]xpress [l]imited [w]arranty, Kolbe reserves the right, at its option, to determine the best method needed to correct the situation as follows: (1) provide part/product to repair or replace any window/door in whatever stage of fitting and/or finishing it was in when originally supplied by Kolbe (all replacement parts will be pursuant to the standards and/or specifications in effect at the time of claim and not at the time of original manufacture), or (2) refund the price received by Kolbe for any window/door.
....
THIS EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUPOSE, OR ANY OTHER WARRANTIES THAT EXTEND BEYOND THE EXPRESS LIMITED WARRANTY. . . . THE REMEDIES PROVIDED UNDER THIS EXPRESS LIMITED WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES AT LAW OR EQUITY.
CREV retained Stonewood Builders (Stonewood) to install the Kolbe
windows and doors. James Card is the owner of Stonewood. The windows and
doors were installed by the end of December 2015.
In January and February 2016, Shore Star communicated with NAWD
"regarding trivial defects," including problems with retractable screens,
A-3434-23 4 "internal latches installed backwards[,]" and "weather stripping . . . cut too
short." Kolbe corrected the defects.
In June 2016, a painting contractor began priming the interior wood of the
windows, including the window sashes. The painter observed what he believed
was water "coming out from behind the aluminum that the wood was attached
to" on seven window sashes. Card took videos of the sashes and notified
D'Angelo who, in turn, reported the condition to NAWD. In response, Kolbe
manufactured seven new window sashes, which NAWD delivered to the Project.
Shore Star also identified three Kolbe doors that appeared to have some
separation of the seams of the aluminum cladding. In response, NAWD offered
to provide CREV with three new doors. Shore Star never observed water
infiltrating through the windows or doors into the interior of the Project.
Shore Star rejected NAWD's offer to replace the three doors and never
installed most of the seven replacement sashes that were delivered. According
to Corrato, "Kolbe did not correct the defects and mistakes but rather sent some
replacement sashes with the same defects." Corrato also testified at his
deposition:
[Counsel]. [G]enerally speaking, did you know whether it could have been a very minor repair to seal up a seam in the aluminum cladding?
A-3434-23 5 [Coratto]. Yeah. I . . . do recall some conversation about placing a bead of caulk. And my response to that was, [a]re we going to have to caulk this window every year? Is this what a quality product involves? So[,] I specifically remember some conversation to that end. It's like, [y]eah, you can put some caulk in here. And I[ am] like … that[ is] not a solution that[ is] a long-lasting solution. And nowhere in the documentation did I recall reading that you would have to caulk your windows every year.
[Counsel]. Did somebody tell you -- whoever talked to you about a piece of caulk, that was respect to the window sashes or the doors?
[Corrato]. I do[ not] remember the specifics in terms of windows or doors. I believe it was in reference to the windows, but I can[not] be certain, but that was my conversation with . . . D'Angelo.
[Counsel]. And in those conversations, is it your recollection that … D'Angelo or you were told that you would have to caulk . . . those seams in the aluminum cladding on an annual basis?
[Corrato]. Maybe that[ was] my assumption, but I have[ not] seen any caulk that lasts for more than a year down the shore.
According to D'Angelo, however, "whenever [Shore Star] raised an issue
with a sash or a door or whatever, it was always the same answer, which was to
provide a replacement component. But [in Shore Star's]
experience . . . replacing [those] components was starting to look like an
ongoing maintenance issue."
A-3434-23 6 D'Angelo testified Kolbe "was not provided with the opportunity to repair
or replace those three doors or any of the other windows in the house with the
exception of the seven sashes" because Shore Star "[was not] going to replace
substandard materials with substandard materials." At the time Shore Star made
that decision "the only issues [D'Angelo was] aware of . . . involved the seven
sashes that had been replaced, retractable screens that had been fixed[,] and three
third floor doors that Kolbe had offered to replace."
Shore Star contends its "experience was such that [it] ultimately
determined that using the Kolbe products in the [Project] would result in a
constant and perpetual series of component failures and replacements." As a
result, Shore Star decided to replace the Kolbe products with windows and doors
manufactured by Anderson Windows (Anderson).
D'Angelo instructed Stonewood to obtain a quote for replacement
windows and doors, which Stonewood received on August 2, 2016. On August
16, CREV obtained a proposal from O.C.F. Construction, LLC (O.C.F.
Construction) to replace the windows and doors. On August 17, Shore Star's
professional engineering expert, Marur Dev of Dev Engineering, LLC, inspected
the Kolbe products as installed. According to Dev, "[a]t that time, based on the
presence of water in the sashes and the unacceptable recommendation to caulk
A-3434-23 7 all windows, [Shore Star] decided to remove all the Kolbe products to mitigate
the expense of having to remove the products post-completion of construction."
Dev conducted a subsequent site inspection on October 12, and returned on
December 1 and January 9, 2017, to inspect the removal and inspection of
certain windows on the third floor of the home.
On November 1, 2016, counsel for Shore Star, John W. Trimble, Jr., Esq.,
wrote to Kolbe's general counsel, Shannon Berens, Esq., that Shore Star was
"giving [it] the opportunity to inspect [the] windows currently installed at" the
Project. Trimble advised Berens "if [he] did not hear from [her] by November
14, 2016, it [wa]s [Shore Star's] intent to remove said windows from the
property."
On November 14, Trimble wrote to Berens "the windows at the property
have been inspected by an engineer" who noted "[m]oisture has seeped in and/or
condensed behind the cladding and sash frame after the installation of the
window." "The moisture . . . is [a] result of the following conditions, singularly
or in combination: 1. [c]ondensation of air trapped between the cladding and
wood frame of the sash at the time of high humidity in summer time[;] 2. [a]ctual
water leak at the seam between the glazing and aluminum cladding." Trimble
also asserted "[e]vidence of movement in the vertical sash frames due to thermal
A-3434-23 8 expansion and contraction was observed" and "is contributing to breach in the
seams of the aluminum clad."
Trimble stated "[a] more comprehensive expert report detailing all defects
with specificity will be supplied in the future." He advised Berens, Shore Star
"is removing and replacing the Kolbe windows with Anderson
Windows . . . scheduled to be delivered on November 22, 2016." In response,
Berens requested a copy of Shore Star's engineering report. On November 15,
Trimble responded that Shore Star would "not be supplying any engineering
report . . . at this time."
On December 2, 2016, D'Angelo returned the executed August 16, 2016
proposal to O.C.F. Construction. In January 2017, the Kolbe products were
removed and placed in storage. In August 2019, they were transported to
Stonewood where they were subjected to destructive testing or "autopsy" by
Shore Star's fenestration expert, Matthew Roetter of Roetter Window and Door
Company, Inc. Roetter sent wood samples to a laboratory to determine if the
wood was properly treated with wood preservative. The laboratory results were
reviewed by Shore Star's wood preservative expert, Glenn M. Larkin of
LarChem LLC.
A-3434-23 9 On April 14, 2020, Shore Star filed its complaint in this action against
Kolbe and NAWD, asserting causes of action against Kolbe alleging: (1)
violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -
228; (2) breach of implied warranty; (3) negligent misrepresentation; (4)
negligence; and (5) common law fraud. 2
Shore Star specifically alleged:
36. In June 2016, [it] discovered evidence that rainwater exited from the aluminum clad and sashes.
37. In June 2016, Kolbe was notified that its windows and doors were defective and notified of the rainwater exiting from the aluminum clad and sashes.
38. After inspection in or about July 2016 by . . . Kolbe [and NAWD] representatives, the representatives recommended that the leaking sashes be replaced.
39. Despite the evident defects, Kolbe has refused to replace the windows and doors at [Shore Star's] property.
In an expert report dated May 12, 2023, Roetter opined "[w]ater
infiltration into [Shore Star's] sash[es] was caused by manufacturing defects."
2 Shore Star asserted a cause of action for breach of contract solely against NAWD. It did not assert a breach of contract claim against Kolbe. In addition, at oral argument Shore Star stated it was not appealing the dismissal of its causes of action for negligence, negligent misrepresentation, and common law fraud. A-3434-23 10 The manufacturing defects [he] observed in the autopsied windows and doors contained improper application of glazing sealants, mortise and tenon gaps, gaps in the sash weather stripping, gaps in the clad door panel interface with stash stile and rail, lack of sealant in the sash stile and rail interface. The above defects caused rainwater infiltration into the sash[es].
Roetter's "autopsy of . . . [the] windows did not reveal any properly glued
mortise and tenon joints. Every mortise and tenon joint [he] opened either had
no glue or a small amount of glue on the tenon which is considered a
weakened . . . joint." As a result, he opined the products failed to meet Kolbe's
Construction Specifications Institute (CSI) specifications and engineering
drawings that provided all mortise and tenon joints would be glued.
Roetter explained the Window and Door Manufacturer's Association
(WDMA) Hallmark Certification Program "is a third-party certification program
that manufacturers and suppliers of windows, doors, and skylights voluntarily
participate in for added credibility." "The [p]rogram consists of a series of plant
inspections and testing by third parties to demonstrate that the products are
manufactured in the same manner as the prototype product tested." "Once
manufacturers demonstrate compliance with all applicable standards and
building codes, they are permitted to use trademarked WDMA Hallmark
Certification labels on [their] products."
A-3434-23 11 According to Roetter, as determined by Larkin in his expert report dated
May 12, 2023, the Kolbe products tested "did not meet the [wood preservative]
retention specifications . . . WDMA Hallmark Certification
requires. . . . Therefore, the millwork did not comply with the requirements of
WDMA Hallmark Certification." In addition, as determined by Larkin, the
millwork was not "sufficiently treated with [an adequate concentration of wood
preservative] to provide long-term protection against wood decay fungi."
Roetter also opined, "the windows and doors sold to [Shore Star] should
not have been identified as WDMA Hallmark certified" because they "were not
manufactured as the windows and doors that were identified in the CSI
specifications, Kolbe engineering drawings[,] and those identified by Kolbe to
have been tested by third[ ]parties for quality and performance."
In an expert report also dated May 12, 2023, Dev opined, based on his site
inspections and review of the autopsied windows and doors, the Kolbe products
did not comply with minimum applicable standards and Kolbe's own
manufacturing specifications. He determined
The water leak [he] observed from a window sash in a video recording by . . . Card . . . was caused by . . . improper application of glazing sealant . . . during the manufacturing process . . . [,]failure of Kolbe to install plastic spacer in some window sashes during the manufacturing
A-3434-23 12 process . . . [,]improper application of glue pursuant to CSI [specifications] . . . [,][and] non- compliant/substandard application of wood glue by Kolbe at the mortise and tenon joints . . . during the manufacturing process.
Dev also opined "the following material defects were observed in the
window sashes . . . [i]nsufficient application of wood preservative . . . [and]
[r]usting of fasteners in the mortise and tenon joints due to water intrusion."
II.
After the close of discovery, Kolbe moved for summary judgment. On
March 19, 2024, the court heard oral argument. On May 31, 2024, the court
entered an order granting Kolbe's motion supported by a written opinion.
The court determined Shore Star's breach of implied warranty claim is
precluded because Kolbe's warranty provides it is "exclusive and in lieu of all
other remedies at law or equity." It rejected Shore Star's claim the exclusive
remedy failed in its essential purpose because Shore Star did not give Kolbe the
opportunity to fulfill its obligations under the warranty. The court rejected
Shore Star's claim it had the right to revoke acceptance of the goods under the
New Jersey Uniform Commercial Code (UCC), N.J.S.A. 12A:2-608, because
the warranty provides it is Shore Star's exclusive remedy.
A-3434-23 13 The court dismissed Shore Star's CFA claim because it failed to establish
Kolbe made material misrepresentations of fact that caused its alleged loss. The
court found Kolbe's statement that it "craft[s] one window or door at a time"
could not reasonably be understood to mean "Kolbe makes one window from
scratch, finishes that window, and only then moves on to building another
window. Alternatively, no reasonable person could believe that phrase means
that one Kolbe employee builds one entire window, and then upon completion
moves on to build another window." The court found this statement was nothing
more than "sales talk or puffery," which "cannot be the basis for a consumer
fraud claim." The court rejected Shore Star's claims based on Kolbe's marketing
statements that its products are "high[-]end windows and doors" made with the
"finest materials" and "crafted with attention to detail and thoughtful
engineering" for the same reasons.
The court determined Shore Star's remaining misrepresentation
allegations are nothing more than claims of manufacturing defects. For
example, the court reasoned Shore Star's claim Kolbe misrepresented its
products are WDMA Hallmark certified "is based primarily on a finding by [its]
lab and expert that wood preservative was not present at a sufficient
depth . . . This is not a misrepresentation. Even if Shore Star's expert is correct[]
A-3434-23 14 that the product did not meet the design criteria, that is not an unconscionable
act. It is a manufacturing defect. . . . Typically, a manufacturing defect cannot
be the basis for a" CFA claim.
The court rejected Shore Star's claim Kolbe violated the CFA by
concealing the alleged manufacturing defects with aluminum cladding.
"Aluminum cladding was a feature of the product ordered by Shore Star; it was
not put on the windows with the purpose of concealing any defect" and "there is
not any evidence that Kolbe intentionally hid any known defects." This appeal
followed.
III.
On appeal, Shore Star contends the court erred in dismissing its CFA
claim. It contends "Kolbe made misrepresentations of fact regarding the quality
and specifications of the windows and doors sold to [Shore Star]." Specifically,
it argues Kolbe does not "craft one door at a time" as advertised, "but rather uses
an assembly line manufacturing process . . . where there are 700 to 900
employees on the manufacturing floor."
It also argues Kolbe made "misrepresentations about being a member of
the WDMA and products meeting heightened manufacturing standard" because
"forensic testing revealed Kolbe's products did not meet" the "WDMA [i]ndustry
A-3434-23 15 [s]tandard for [w]ood [p]reservative [t]reatment." Rather, "the tested products
are prototypes. . . . None of [Shore Star's] windows and doors were tested by
Kolbe, and therefore, no actual products sold to customers are tested."
Shore Star additionally claims: (1) NAWD misrepresented to Corrato "the
Kolbe products were re-designed, would be functional and defect-free in the
shore environment, and were quality products;" (2) Kolbe's advertising
misrepresented it "submits its windows and doors to independent organizations
which test them to rigorous protocols," its products are "high[-]end windows
and doors" made with the "finest materials" "crafted with attention to detail and
thoughtful engineering;" and (3) Kolbe misrepresented its "aluminum clad
windows . . . were water-tight, and not windows that hold water."
Shore Star argues it "did not receive the Kolbe products it intended to
purchase" because "the actual products provided did not meet the applicable
specifications and WDMA Hallmark Certification requirements as represented
and advertised." "Kolbe's act of providing [Shore Star] with an entirely different
product than what was represented . . . constitutes a violation of the CFA."
A-3434-23 16 Finally, Shore Star contends Kolbe violated the CFA by concealing the alleged
defects by applying aluminum cladding. 3
Shore Star contends the court improperly dismissed its implied warranty
claim because the exclusive remedy afforded by the express warranty failed in
its essential purpose and it had the right to revoke acceptance of the goods
pursuant to N.J.S.A. 12A:2-608(1). It argues "questions of fact exist whether
[Shore Star] provided Kolbe with an opportunity to repair or replace the
defective windows and doors."
IV.
We affirm substantially for the reasons set forth in the trial court's
thorough and well-reasoned opinion. We add the following comments.
Our review of a trial court's grant or denial of a motion for summary
judgment is de novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Like the trial
court, we consider "whether the competent evidential materials presented, when
3 In its reply brief and oral argument, Shore Star also argued Kolbe violated the CFA because "four of the Kolbe doors . . . were not tested by a third party . . . and had no design pressure ("DP") rating." This legal argument was not presented in Shore Star's initial brief, and we decline to consider arguments raised for the first time in a reply brief or at oral argument. See Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 527 n.5 (App. Div. 2009); see also Bouie v. N.J. Dep't of Cmty. Affairs, 407 N.J. Super. 518, 525 n.1 (App. Div. 2009).
A-3434-23 17 viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Our review of a trial court's interpretation of the law is also de novo.
See Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div.
2008).
Rule 4:46-2(c) provides a motion for summary judgment must be granted
"if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." "By its plain language, R. 4:46-2 dictates that a court
should deny a summary judgment motion only where a party opposing the
motion has come forward with evidence that creates a 'genuine issue as to any
material fact challenged.'" Brill, 142 N.J. at 529. Insubstantial arguments based
on assumptions or speculation are not enough to overcome summary judgment.
Ibid. Likewise, "'conclusory and self-serving assertions . . . are insufficient to
overcome' a motion for summary judgment." Dickson v. Cmty. Bus Lines, Inc.,
458 N.J. Super. 522, 533 (App. Div. 2019) (quoting Puder v. Buechel, 183 N.J.
428, 440-41 (2005)).
A-3434-23 18 A.
The court correctly granted summary judgment dismissing Shore Star's
CFA claim. The CFA provides, in relevant part,
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate … whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice . . . .
[N.J.S.A. 56:8-2.]
"The CFA requires a plaintiff to prove three elements: '[(]1) unlawful
conduct by [the] defendant; [(]2) an ascertainable loss by [the] plaintiff; and
[(]3) a causal relationship between the unlawful conduct and the ascertainable
loss.'" D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013) (quoting Bosland v.
Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)).
Violations of the CFA may be established through: (1) an affirmative
misrepresentation by the defendant; (2) the defendant's knowing and intentional
omission or failure to disclose a material fact; or (3) "violations of specific
regulations promulgated under the [CFA]." Monogram Credit Card Bank of Ga.
v. Tennesen, 390 N.J. Super. 123, 133 (App. Div. 2007) (quoting Cox v. Sears
A-3434-23 19 Roebuck & Co., 138 N.J. 2, 18 (1994)). The purpose of the CFA is "to prevent
deception, fraud or falsity, whether by acts of commission or omission, in
connection with the sale and advertisement of merchandise and real estate."
Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 376-77 (1977); see also New Mea
Constr. Corp. v. Harper, 203 N.J. Super. 486, 500 (App. Div. 1985).
"[A]n affirmative misrepresentation is 'one which is material to the
transaction and which is a statement of fact, found to be false, made to induce
the buyer to make the purchase.'" Mango v. Pierce-Coombs, 370 N.J. Super.
239, 251 (App. Div. 2004) (quoting Ji v. Palmer, 333 N.J. Super. 451, 462 (App.
Div. 2000)).
A statement is material if:
(a) a reasonable person would attach importance to its existence in determining a choice of action . . . ; or (b) the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable [person] would not so regard it.
[Palmer, 333 N.J. Super. at 462 (quoting Restatement (Second) of Torts § 538(2) (Am. Law Inst. 1977)).]
Courts have recognized "a distinction between misrepresentations of fact
actionable under the CFA and mere puffing about a product or a company that
will not support relief." N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.
A-3434-23 20 Super. 8, 13 (App. Div. 2003). "Exaggerated claims of quality" are considered
mere "puffery." Lingar v. Live-in-Companions, Inc., 300 N.J. Super. 22, 28
(App. Div. 1997). "It is the capacity to mislead that is the 'prime ingredient of
all types of consumer fraud' under the CFA." Suarez v. E. Intern. Coll., 428 N.J.
Super. 10, 32 (App. Div. 2012) (quoting Cox, 138 N.J. at 16-17).
We are satisfied the court properly determined Kolbe's advertising
statements that its products are "high[-]end windows and doors" made with the
"finest materials" and "crafted with attention to detail and thoughtful
engineering," and that its products are "water-tight" are nothing more than
puffery or exaggerated claims of product quality that will not support relief
under the CFA. These types of general advertising claims do not represent
misrepresentations of any material fact with the capacity to mislead a consumer.
Likewise, the court correctly determined Kolbe's statement that it "craft[s]
one door at a time" is a form of advertising puffery meant to convey Kolbe's
products are built to the customer's specifications. As the court recognized, "no
reasonable person could believe that phrase means . . . one Kolbe employee
builds one entire window, and then upon completion moves on to build another
window."
A-3434-23 21 Shore Star's claim NAWD misrepresented to Corrato "the Kolbe products
were re-designed . . . would be functional and defect-free in the shore
environment, and were . . . quality product[s]" fails for the same reasons.
Moreover, Shore Star does not point to any evidence establishing NAWD's
representations were false.
Shore Star's claim Kolbe misrepresented it sends every window and door
it produces for testing finds no support in the record. Rather, Kolbe advertises
"product samples and components are tested periodically by third[-]party testing
laboratories." Consistent with this claim, Shore Star's expert, Roetter, noted in
his report the WDMA Hallmark Certification program "consists of a series of
plant inspections and testing by third parties to demonstrate that the products
are manufactured in the same manner as the prototype product tested." Kolbe
did not misrepresent that it sends every one of its products to independent
organizations for testing.
The court appropriately found Shore Star's claim Kolbe misrepresented
its products are WDMA Hallmark Certified because "forensic testing revealed
Kolbe's products did not meet" the "WDMA [i]ndustry [s]tandard for [w]ood
[p]reservative [t]reatment" represents an allegation of manufacturing defect, not
a misrepresentation. In fact, Shore Star, does not and cannot allege Kolbe
A-3434-23 22 falsely states it is a member of WDMA or that prototypes of its products are
tested by WDMA. Rather, it contends the products it received fell short of the
WDMA Hallmark Certification requirements as a result of alleged
manufacturing defects. Kolbe did not misrepresent that its products are WDMA
Hallmark Certified.
Shore Star's reliance on New Mea is not persuasive. In New Mea, a
contractor entered into a "contract to build a one-family residence . . . in
accordance with the plans." 203 N.J. Super. at 498. The property owner alleged
"ungraded Hem-Fir (hemlock) was used in the framing, contrary to the
specifications which called for Graded #1 Douglas Fir." Ibid. The trial court
found the contractor "attempted to shortchange the property owner by
substituting cheaper materials" and "the blatant substitution of substandard
lumber for framing [was] abominable." Id. at 501. "Against the backdrop of
these findings" we concluded "the [CFA] is applicable to a custom builder who
uses substandard material." Ibid.
Unlike the contractor in New Mea, Shore Star does not point to any
evidence Kolbe substituted cheaper materials or that Kolbe delivered products
other than those Shore Star ordered. Rather, Shore Star alleges certain
manufacturing defects existed in the Kolbe products it received. The existence
A-3434-23 23 of manufacturing defects, without more, is not a basis to find a violation of the
CFA.
We are unconvinced by Shore Star's claim Kolbe intentionally concealed
known manufacturing defects. As the court aptly noted, "[a]luminum cladding
was a feature of the product ordered by Shore Star; it was not put on the windows
with the purpose of concealing any defect" and "there is not any evidence that
Kolbe intentionally hid any known defects." Therefore, we conclude summary
judgment was properly granted.
B.
The court also properly dismissed Shore Star's claim for breach of implied
warranty. "[P]arties to a contract may establish an exclusive remedy, which, if
so labeled, 'is the sole remedy' available to them under the terms of the contract."
BOC Grp., Inc. v. Chevron Chem. Co., LLC, 359 N.J. Super. 135, 146 (App.
Div. 2003) (citing N.J.S.A. 12A:2-719(1)(b)). The "complete exclusion of
implied warranties . . . is specifically permitted under the [UCC]." Gladden v.
Cadillac Motor Car, 83 N.J. 320, 330-31 (1980).
Here, there is no reasonable dispute the warranty establishes an exclusive
remedy and completely excludes any implied warranties. Shore Star does not
contend otherwise. Rather, Shore Star argues it should not be bound by the
A-3434-23 24 exclusive remedy provided in the warranty because the warranty failed in its
essential purpose or, at a minimum, there exist material questions of fact
precluding summary judgment on that claim. The record does not support that
argument.
When a breach of warranty provision limits a seller's obligation to repair
or replace defective equipment, "before the exclusive remedy is considered to
have failed in its essential purpose, the seller must be given an opportunity to
repair or replace the product." BOC Grp., Inc., 359 N.J. Super. at 147. A
remedy may fail in its essential purpose if the product does not operate free of
defects after several attempts to repair, "or repair or replacement take an
unreasonable time to complete." Id. at 148. "In other words, the exclusive
remedy of repair and replacement . . . fails of its essential purpose if, after
numerous attempts to repair, the [product does] not operate as a new [product]
should[,] free of defects." Gen. Motors Acceptance Corp. v. Jankowitz, 216
N.J. Super. 313, 329 (App. Div. 1987). "Where circumstances cause an
exclusive or limited remedy to fail of its essential purpose, remedy may be had
as provided in [the UCC]." N.J.S.A. 12A:2-719(2).
Shore Star's contention it permitted Kolbe an opportunity to repair or
replace the windows and doors is not supported by competent evidential
A-3434-23 25 materials in the record. The record establishes Kolbe manufactured and
delivered new sashes to replace the seven sashes that were identified by Shore
Star as allegedly defective, and, through NAWD, offered to replace the three
doors Shore Star contended were defective. Kolbe was not given the opportunity
to repair or replace any other windows and doors, nor was it given the
opportunity to address the defects alleged in plaintiff's expert reports that were
first identified to Kolbe years after the products were removed.
Instead, no later than August 2, 2016, Shore Star obtained a quote from
Anderson for replacement windows, and no later than August 16, obtained a
quote from O.C.F. Construction to remove the Kolbe products and replace them.
By the time Dev arrived for his inspection on August 17, Shore Star already
decided to "remove all the Kolbe products." On November 1, Trimble wrote to
Berens it was Shore Star's "intent to remove said windows from the property."
On November 14, Trimble advised Berens the replacement windows were
scheduled for delivery on November 22. We are satisfied the court correctly
determined Shore Star failed to give Kolbe a reasonable opportunity to repair or
replace any allegedly defective windows and doors other than the seven
windows and three doors Kolbe agreed to replace.
A-3434-23 26 Shore Star's contention Kolbe refused to honor its warranty and instead
advised Shore Star to seal any leaks with "a bead of caulk" is not supported by
competent evidence in the record. In fact, it is contradicted by D'Angelo's
testimony and undisputed facts.
Shore Star's claim is based solely on Corrato's testimony that he "recalled
some conversation . . . with D'Angelo" about "placing a bead of caulk." It was
"some conversation to that end. It[ is] like, [y]eah you can put some caulk in
here." Based on that, it was Corrato's "assumption" D'Angelo was told by
someone they would need to caulk the seams on an annual basis. There is no
evidence in the record to support Shore Star's claim other than Corrato's
"assumption" based on his conversation with D'Angelo.
D'Angelo's testimony, however, directly contradicts Corrato's claim. He
testified "whenever [Shore Star] raised an issue with a sash or a door[ . . . ]it
was always the same answer, which was to provide a replacement component."
In fact, the undisputed evidence in the record establishes Kolbe repaired,
replaced, or offered to replace, every defective window and door Shore Star
identified before Shore Star removed the Kolbe products.
Based upon our de novo review, the court properly determined Shore Star
failed to give Kolbe a reasonable opportunity to honor its obligations under the
A-3434-23 27 warranty. Kolbe was never given the opportunity to remedy the alleged defects,
including the defects alleged in Shore Star's expert reports, in accordance with
its obligations under the warranty. Therefore, Shore Star's claim the warranty
failed in its essential purpose lacks merit.
Because the warranty did not fail in its essential purpose, Shore Star's
claim that it had the right to revoke acceptance of the goods pursuant to N.J.S.A.
12A:2-608(1) is incorrect. "Although revocation of acceptance is available to
the purchaser of a defective product pursuant to N.J.S.A. 12A:2-608, that right
does not accrue where . . . the product is sold with a limitation of remedy."
Palmucci v. Brunswick Corp., 311 N.J. Super. 607, 612 (App. Div. 1988).
To the extent we have not specifically addressed any remaining
arguments, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3434-23 28