COURT TOSSES CONSUMER FRAUD COUNT AGAINST AVALONBAY

rechters53The Avalon Edgewater fire, that engulfed and destroyed the luxury unit apartment complex in Edgewater, New Jersey, was subject of one of this firm’s prior posts. The fire displaced over 1,000 tenants and affected all nearby residents.  The fire was reported to be so large that it could be seen across the Hudson River on the west side of Manhattan. The fire thankfully did not result in any deaths, but did injure two residents and two firefighters.

The complaint filed by the residents against the landlord alleges that the fire was started by an acetylene torch being used by an unlicensed plumber making repairs and that no AvalonBay representative called 911 or otherwise reported the fire. The plaintiffs also allege that the lightweight wood construction of the buildings caused the fire to spread faster and point to a series of other fires at Avalon sites – including one at the Edgewater location while it was under construction

The class action lawsuit against Avalon was filed in the New Jersey U.S. District Federal Courthouse and is facing its first hurdle.

The plaintiffs allege that AvalonBay Communities violated the Consumer Fraud Act by making representations and omissions of fact to renters at its complex. The plaintiffs allege that AvalonBay violated the Consumer Fraud Act with marketing materials stating that the Edgewater complex contained “the best New Jersey Apartments” and had “beautifully maintained grounds, and top-of-the-line amenities.” Plaintiffs allege that those representations led the tenants to believe, incorrectly, that the Avalon incorporated the latest and best construction, when in fact it was a fire trap.

The Judge stated that the marketing statements labeled misrepresentations by the plaintiffs were non-actionable puffery and the omissions cited by the tenants do not support a Consumer Fraud Act claim because the landlords are not required to disclose those items. The Judge stated that the challenged statements are not actionable because they said nothing about the construction.

The plaintiffs also allege that their Consumer Fraud Act claim is supported by AvalonBay’s failure to disclose the type of materials used in construction of the building, the lack of credentials of plumbers hired to work in the building, and AvalonBay’s history of fires at the Edgewater site or other apartment complexes it owns.

The Judge stated that the plaintiffs have not claimed that the building was not constructed to code, and they have not cited any case to show that a building that is lawfully constructed with materials approved by the building code can be found to be a “concealed dangerous condition.” The Judge further stated that the plaintiffs have failed to cite any case which would require a landlord to disclose building materials to residents, or that the failure to do so can form the basis of a Consumer Fraud Claim. The Judge stated that the plaintiffs also failed to support their assertion that a landlord’s lack of disclosure about maintenance workers’ credentials can form the basis for the Consumer Fraud claim.

The Judge stated that to form a basis for a Consumer Fraud Act claim based on an omission, the plaintiff must show that the omission was a material fact that was required to be disclosed, that the fact was knowingly concealed, with the intent that the plaintiff rely on the concealment, and that such an omission was causally connected to the loss. The Judge added that the plaintiffs have not cited to any case showing a duty on the part of a landlord to disclose all past safety issues at all properties the landlord has owed.

Residents of the apartment building have failed to establish a basis for the New Jersey Consumer Fraud Act claim against their landlord. The New Jersey Consumer Fraud Act, if applicable, may result in the injured party receiving triple the amount in damage including court costs and attorney’s fees.

This case is extremely complex and involves numerous plaintiffs. The Consumer Fraud Act protects the consumer and provides harsh punishment for any violation.  The attorneys at Gale & Laughlin are well versed with the Consumer Fraud Act and how it can be used to protect you due to an unfortunate circumstance. Contact us to discuss how we can help you.

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