Atlantic Highlands Lawsuit
Even though a Superior Court Judge last month dismissed the complaint Atlantic Highlands filed against Kappa Construction Company, the borough took a second shot at it and can now continue its lawsuit against Kappa Construction Corporation for the $1.5 million building at the Municipal Yacht Harbor the borough approved and has leased to two tenants for more than two years.
At a hearing Monday, Monmouth County Superior Court Judge Owen C. McCarthy granted the borough’s request to reinstate the lawsuit filed by Atlantic Highlands against the firm. He is the same judge who dismissed the matter last month.
Atlantic Highlands had filed the suit alleging Kappa Construction was responsible for several violations in the $1.5 million building completed more than two years ago. This was in spite of the fact the borough had approved and authorized full payment for the construction at the time the work was completed.
Lessee TowBOAT/US, Miller’s Towing & Salvage, Inc., owned by Capt. Harold Smith, informed the borough two years ago of a number of architectural problems in the building, most serious of which was the gas turnouts not properly located. TowBOAT/US and the NJ State Police are both tenants in the borough-owned building. Architect for the building was Netta Architects of Mountainside.
Council took no action on Smith’s several complaints to both the Harbor Commission and the Mayor and Council despite his appearance at several meetings over months. In December 2022, in response to Smith’s continued complaints and request to be released from his lease, the borough then filed suit against Kappa alleging the building contractor was responsible for the problems. Neither council nor the Harbor Commission took any action on Smith’s request to be released from his lease and he continued, and continues currently, to pay full rent as required in his lease.
Several months ago, the borough received a deficiency notice from the court in response to their complaint, stating the borough’s complaint was incomplete and missing information. The borough then filed a motion to correct their missing information, and it was corrected in February of this year.
With the new information now available to the defendant, Kappa’s attorney, Thomas Hersch then filed a request for and was granted an extension for time to review the new information.
In June, Judge McGowan dismissed the charges against Kappa Construction Company.
In July, Gregory Cannon, the attorney representing Atlantic Highlands, filed a request to have the case reinstated. That request was set for an Aug. 4 decision.
However, during a 4 p.m. ZOOM conference meeting among the Judge and attorneys Monday afternoon, Judge McGown ordered that any and all administrative dismissals for lack of prosecution against any defendant were vacated. The order then reinstated Atlantic Highlands for an active trial date of the allegations against Kappa. The Judge granted Kappa Construction Corp and its insurance company until Aug. 1 to respond to the revised complaint.
The new Case Management Conference is now scheduled for 9 a.m. Aug 21 via ZOOM.
With the new action currently pending the Conference, neither Cannon nor Thomas Hersch could be reached for any comment.
