Boria v. The Heritage at Alexander Hamilton

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JENNIFER BORIA, et al., Plaintiffs, v. THE HERITAGE AT ALEXANDER HAMILTON, et al., Defendants.

Civil Action No. 23-22914

United States District Court, D. New Jersey

July 30, 2024

OPINION & ORDER

CECCHI, DISTRICT JUDGE.

I. INTRODUCTION

This matter comes before the Court on the motion to dismiss counts three and four of plaintiffs Jennifer Boria (“Boria”), Andrew Reyes (“Reyes”) and S.B.'s (collectively, “Plaintiffs”) amended complaint (ECF No. 8-1, “FAC”) filed by defendants The Heritage at Alexander Hamilton (“The Heritage”), Alexander Hamilton Associates, LLC (“Hamilton Associates”), Pennrose Properties, LLC (“Pennrose Properties”), and Pennrose Management Company (“Pennrose Management”), (collectively, “Defendants”) (ECF No. 4). Plaintiffs opposed Defendants' motion (ECF No. 8, “Opp.”), and Defendants replied in support of their motion (ECF No. 9, “Reply”). The Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, Defendants' motion is GRANTED.

II. BACKGROUND

A. Factual History^[1]

On August 15, 2021, Plaintiffs moved into a housing unit at 256 23^rd Avenue, Paterson, N.J. 07513. FAC ¶ 1. The unit is owned by The Heritage and Hamilton Associates, managed by Pennrose Management, and was developed by Pennrose Properties. Id. ¶ 1.

Upon moving in, Plaintiffs allegedly observed mold and evidence of rodents. Id. ¶ 2. This included black mold in the bathroom (Id. ¶ 5) and rodent droppings throughout the unit (Id. ¶ 6). Plaintiffs also noted dust and rodent droppings in the HVAC vents. Id. ¶ 9. Plaintiffs notified certain Defendants of these issues and requested a cleaning of the unit and the HVAC (Id. ¶ 3), but Defendants did not respond (Id. ¶ 11).

Plaintiffs then contacted Stanley Steemer, a cleaning company, to clean the HVAC. Id. ¶ 12. A company technician arrived on or about September 24, 2021. Id. ¶ 12. However, the technician stated he could not legally clean the unit because the insulation used on the HVAC was illegal in New Jersey. Id. ¶ 13.

Plaintiffs subsequently contacted two other cleaning companies. Id. ¶ 14. One of those companies, Services for Home, visited the property on or about September 27, 2021 and cleaned the HVAC. Id. ¶ 15. The next day, Boria texted an employee of Pennrose Management stating that during the cleaning a dead rodent had been found in the HVAC and requesting a new air filter. Id. ¶ 16. As of the filing of the FAC, the air filter had not been replaced. Id. ¶ 61.

On or about December 21, 2021, Plaintiffs contacted E.J. Waterproofing to perform an air quality test of the unit. Id. ¶ 19. E.J. Waterproofing performed the test but did not provide Plaintiffs with the results. Id. ¶ 20. The company performed another test on February 12, 2022, which showed high counts of mold. Id. ¶ 21. Plaintiffs and certain Defendants were notified of the results. Id. ¶ 22.

Following these tests, Plaintiffs commissioned a Foreign Toxicology Report. Id. ¶ 28-29. The report-dated June 9, 2022-identified 36 types of fungi within the unit. Id. ¶ 31. It also found harmful levels of toxins within the body of each Plaintiff (Id. ¶ 34-36) and concluded that the unit posed “a health hazard to all occupants.” (Id. ¶ 29). The report was presented to certain of the Defendants on November 22, 2022. Id. ¶ 37.

Plaintiffs underwent examinations by Dr. Annette B. Hobi, NMD, between July 19-28, 2022. Id. ¶¶ 38-50. Dr. Hobi found all three plaintiffs suffered injuries due to mold exposure and recommended treatment. Id. Dr. Hobi also recommended Boria and Reyes “immediately avoid continued exposure to the environmental hazard of the[ir] residence[.]” Id. ¶¶ 40, 47. As of the filing of the FAC, Defendants had neither remediated the mold (Id. ¶ 60) nor relocated Plaintiffs to another unit (Id. ¶ 63).

On or about October 18, 2022, Boria texted an employee of certain Defendants stating that the heating system in the unit was broken. Id. ¶ 54. Boria explained that the lack of heat exacerbated her bronchitis. Id. She also sent an email the following day complaining about the lack of heat to certain Defendants. Id. ¶ 55. As of the filing of the FAC, the heating system had not been fixed. Id. ¶ 62.

As a result of their alleged injuries, Plaintiffs assert damages in the form of medical expenses, lost wages, and pain and suffering. Id. ¶ 67.

B. Procedural Background

On August 11, 2023, Plaintiffs filed an initial complaint in the Superior Court of New Jersey, Law Division, Passaic County. ECF No. 1-2. On November 21, 2023, Plaintiffs filed an amended complaint asserting, for the first time, additional claims under federal law. ECF No. 19. The amended complaint includes claims for: negligence (Count one), breach of the warranty of habitability and implied warranty of quiet enjoyment (Count two); negligence per se (Count three); res ipsa loquitur (Count four); and violation of the Fair Housing Act (Count six).^[2] Id. at 1-38. On December 6, 2023, Plaintiffs filed a notice of removal to United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1446(a).

III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6)

To survive dismissal under Rule 12(b)(6), a complaint must meet the pleading requirements of Rule 8(a)(2) and “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In evaluating the sufficiency of a complaint, a court must also draw all reasonable inferences in favor of the non-moving party. Phillips, 515 F.3d at 234. Ultimately, a complaint “that offers ‘labels and conclusions' or . . . tenders ‘naked assertions' devoid of further factual enhancement,” will not withstand dismissal under Rule 12(b)(6). Iqbal, 556 U.S. at 678 (citations omitted).

IV. DISCUSSION

A. Negligence Per Se (Count Three)

a. Applicable Law

In New Jersey, “a statutory violation might support a claim in any one of three ways: the statute may create civil liability by its provisions, a violation may constitute negligence per se, or a violation may constitute evidence of negligence.” K.J. v. J.P.D., 659 F.Supp.3d 471, 479 (D.N.J. 2023) (internal quotation omitted). Civil liability may be “expressly provided” by a statute or conferred by a court as an “implied private right of action[.]” See R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 274 (2001). Negligence per se applies where a statute “specifically incorporate[s] the non-statutory or common-law standard of negligence.” K.J., F.Supp.3d at 479 (citation omitted). Said differently, where a statute requires a finding that the defendant failed to exercise reasonable care, that finding, by its terms, “constitutes a finding of negligence.” Senisch v. Tractor Supply Co., No. 1:16-CV-47 (NLH/KMW), 2018 WL 324717 at *11 (D.N.J. Jan. 8, 2018) (citation omitted). And when a statutory violation is not “conclusive on the issue of negligence, it is a circumstance which the jury should consider in assessing liability.” Id. at *11 (quoting Eaton v. Eaton, 575 A.2d 858, 866 (1990)).

b. Analysis

Defendants move to dismiss Plaintiffs' negligence per se claim. Def. Br. at 10. The claim is premised on Defendants' alleged violations of (1) regulations promulgated under New Jersey's Hotel and Multiple Dwellings Law (“HMDL”), (2) the federal Fair Housing Act (“FHA”) and (3) the federal Toxic Substances Control Act (“TSCA”). See FAC at 30-31. Each alleged basis of liability is discussed in turn.

i. HMDL

As an initial matter, the parties' briefing subsumes the distinct categories of direct liability and negligence per se liability under the heading of negligence per se. See ECF No. 4-1 (“Def. Br.”) at 17 (“[T]he HMD[L] regulations do not incorporate a common law standard or . . . provide for a private cause of action . . . . As neither aspect exists, plaintiffs' claim in negligence per se . . . must be dismissed.”); Opp. at 19 n.13 (“[C]ognizability of a private cause of action . . . is only one aspect of the inquiry since, in New Jersey, inter alia traffic infractions can also form the basis of negligence per se . . . although they do not provide for a private cause of action.”). However, Plaintiffs do not bring a direct cause of action under HMDL regulations; they assert a negligence per se claim based on violations of HMDL regulations. See FAC at 29-36. Nonetheless, because courts often group these distinct claims together under negligence per se, see, e.g., Green v. 712 Broadway, LLC, No. CV 17-991, 2018 WL 2754075 (D.N.J. June 8, 2018) (finding that because statute “do[es] not support finding a private cause of action . . . Plaintiff may not assert his negligence per se claims”), the Court will discuss why both bases for liability fail.

1. Direct Liability

This court has previously held that there is no private right of action under HMDL regulations. In Axis Surplus Insurance Company v. Cavazzi, the district court stated that regulations adopted pursuant to the HMDL “do[] not explicitly create a private right of action; and do[] not contain an implied private right of action.” 19-cv-19980, 2020 WL 3169359 at *2 (D.N.J. June 15, 20202). The court explained that the text of the regulations “strongly suggests” the legislature intended to “benefit the public as a whole” rather than “to protect and confer a special benefit” on an individual plaintiff who could then assert a claim. Id. at *3. Furthermore, the provision for “broad enforcement power under [the] regulatory scheme”-including inspections, reports and citations-convinced the court there was “no evidence that the Legislative intent was to create a private right of action.” Id....