                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1377-12T3


CUMBERLAND COUNTY BOARD
OF CHOSEN FREEHOLDERS,                APPROVED FOR PUBLICATION

      Plaintiff-Appellant,                 July 30, 2013

v.                                      APPELLATE DIVISION


VITETTA GROUP, P.C., ARTHUR J.
OGREN, INC., CONTINENTAL CAST
STONE EAST, BY RUSSELL, INC.,
and E.P. HENRY CORPORATION,

      Defendants,

and

GILBANE BUILDING COMPANY,

     Defendant-Respondent.
_______________________________

          Argued June 4, 2013 - Decided July 30, 2013

          Before Judges Messano, Lihotz and Ostrer.

          On appeal from the Superior Court of New
          Jersey, Law Division, Cumberland County,
          Docket No. L-962-07.

          Steven L. Rothman argued the cause for
          appellant (Lipman, Antonelli, Batt, Gilson,
          Rothman & Capasso, attorneys; Mr. Rothman,
          of counsel and on the briefs; Jane B.
          Capasso, on the briefs).

          Tracy L. Burnley argued the cause for
          respondent (Marshall, Dennehey, Warner,
            Coleman & Goggin, attorneys; Ms. Burnley, on
            the brief).

      The opinion of the court was delivered by

LIHOTZ, J.A.D.

      Defendant Gilbane Building Company (Gilbane) was retained

by plaintiff, the Cumberland County Board of Chosen Freeholders,

in the early 1990's to supervise construction of the expansion

and   remodeling      of   the    Cumberland      County   Courthouse        (the

Courthouse Project).          Thereafter, leaking caused water damage,

but   Gilbane   was   neither    notified    of   nor   involved   in     repair

attempts.    When plaintiff initiated this action against Gilbane

and other construction professionals involved in the Courthouse

Project, more than ten years had passed since Gilbane completed

its services.      The Law Division dismissed plaintiff's complaint

as untimely under the applicable ten-year statute of limitations

for civil actions commenced by governmental bodies.                On appeal,

plaintiff argues the judge erred as a matter of law by applying

the wrong legal standard when determining whether its action was

untimely.    We are not persuaded and affirm.

      The   facts,    taken   from   the   summary   judgment   record,       are

tailored to address only those issues raised by plaintiff with

respect to its claims against Gilbane, omitting facts concerning

the other defendants.




                                       2                                A-1377-12T3
       In May 1993, plaintiff and Gilbane executed an agreement

for construction services (the Agreement).                    Under the Agreement,

Gilbane    was    to   provide      construction         management      services        as

plaintiff's       on-site       field     representative,         overseeing           the

architect,       contractors,      and    other       construction     professionals

involved in the Courthouse Project.                   In this role, Gilbane had

specific supervisory responsibilities, including:                       providing at

least      one     qualified        and        experienced       full-time          field

representative on-site during each work day to "assur[e] day-to-

day,    on-schedule       and       under-budget            performance      of        the

construction work in accordance with the contract documents";

"[r]eview[ing] all work in progress on the project's site to

assure the highest quality in accordance with design plans and

other     contract     documents";        and    regularly      communicating          and

interacting with the general contractor, architect, engineer,

plaintiff,       and   others      involved      in    the    project,      to    assure

compliance with all design requirements.

       On August 17, 1995, Gilbane issued a Substantial Completion

Notice, and agreed to correct a final punchlist of items.                              The

notice transferred full possession to plaintiff and triggered

the    commencement     of   the    warranty      provisions.          On   behalf      of

plaintiff, John Kenneth Mecouch, a Cumberland County Purchasing

Office     representative,       along     with       the    project     construction




                                           3                                     A-1377-12T3
manager, certified the project had been inspected and it was

accepted    as    "substantially        completed."         Plaintiff       began    to

occupy the courthouse in August or September 1995, following

receipt of a certificate of occupancy.                    Gilbane had no further

involvement      with   the    Courthouse      Project      or   the    building    as

renovated.

    In     November     1995,    plaintiff      observed     "manifestations        of

leaks"   and     resultant      water    damage    throughout       the     renovated

courthouse     area.      Although      the    general     contractor       attempted

subsequent     repairs,       Gilbane    was   not    contacted        regarding     or

involved in these problems.

    Plaintiff       filed      this    complaint     on    September       18,    2007.

Count    three    alleged      plaintiff's      damages      were      directly     and

proximately      caused   by    Gilbane's      "negligence,         lack    of    care,

willful misconduct and gross negligence in connection with the

supervision of the construction[,]" and "began to accrue shortly

after    completion     of    the     Courthouse     Project     when      pervasive,

ongoing water leakage occurred throughout the four walls of the

new construction and the renovation portions . . . [,] resulting

in exterior and interior damage, including mold, cracking of

cast stone window sills, cornices and coping units and failed

masonry."




                                          4                                  A-1377-12T3
      In lieu of filing an answer, Gilbane moved to dismiss the

complaint,      arguing    plaintiff's        claims    were       "barred"    by   the

statute   of    repose,    N.J.S.A.      2A:14-1.1,         because    suit   was   not

commenced within ten years of completion of Gilbane's services

on the project.           Plaintiff responded, arguing the statute of

repose    did   not    preclude    its    claims       against      Gilbane   because

subpart b(2) of section 1.1 states the statute does not time bar

an action by a government unit "based on willful misconduct,

gross negligence or fraudulent concealment in connection with

. . . supervision . . . of an improvement to real property[.]"

Gilbane's motion was denied and plaintiff's request to amend its

complaint to add allegations of fraud and fraudulent concealment

against Gilbane was granted.

      Plaintiff filed its second amended complaint on September

29,   2008,      adding      allegations        of      fraud       and   fraudulent

concealment.          Gilbane     answered      and         included      among     its

affirmative defenses an assertion plaintiff's claims were barred

by the statute of limitations and the statute of repose.

      Following discovery, Gilbane moved for summary judgment.                         A

different judge granted partial summary judgment and dismissed

plaintiff's negligence claims, finding them time-barred.                            The

balance   of    the    motion,    with   respect       to    the    claims    alleging

willful misconduct, gross negligence or fraudulent concealment,




                                          5                                   A-1377-12T3
was denied, as the judge found disputed facts concerning whether

Gilbane committed "gross negligence" so as to trigger the b(2)

exception to the statute of repose.                    N.J.S.A. 2A:14-1.1b(2).

The judge was not asked to determine whether plaintiff's claims

were barred by the statute of limitations or laches.                      Following

the motion, the        case was referred to mediation, pursuant to

which plaintiff settled all claims against all defendants except

Gilbane.

      Plaintiff filed a third amended complaint and Gilbane again

moved for summary judgment, this time asserting the remaining

claims were barred by the applicable statute of limitations —

either     N.J.S.A.     2A:14-1       (providing      a     six-year    period     of

limitations     for    tort    or    contract     claims)     or,   alternatively,

N.J.S.A. 2A:14-1.2 (providing a ten-year period of limitations

for actions commenced by the State).                       Plaintiff opposed the

motion, arguing the statute of                  limitations did not apply to

actions    by   governmental        units   seeking    damages      resulting    from

willful misconduct, gross negligence, or fraudulent concealment

in   connection       with    construction       of   an    improvement    to    real

property, because these actions were governed by the statute of

repose.      In an oral decision, the judge rejected plaintiff's

argument and granted summary judgment, dismissing plaintiff's

complaint.      Plaintiff appealed.




                                            6                              A-1377-12T3
    In a motion for summary judgment under Rule 4:46-2(c), a

judge   is     required    to     analyze     and    sift    through    evidential

materials,      including       "pleadings,         depositions,       answers     to

interrogatories     and     admissions        on    file,    together      with   the

affidavits, if any," R. 4:46-2(c), to determine whether there

exists "a genuine issue as to any material fact challenged,"

ibid., and "determine 'the range of permissible conclusions that

might be drawn,'" Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 531 (1995) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 596, 106 S. Ct. 1348, 1361, 89

L. Ed. 2d 538, 558 (1986)).           See also Tomeo v. Thomas Whitesell

Constr. Co., 176 N.J. 366, 370 (2003) (stating summary judgment

necessitates some weighing of the evidence); Millison v. E.I. du

Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (requiring a

motion judge to make a "discriminating search" of the evidence).

If no genuine issue of material fact exists, the judge then

considers whether the moving party is entitled to judgment as a

matter of law.      Brill, supra, 142 N.J. at 540.                Inevitably, the

judge   must    consider    not    just    the     quantum   of   proof,    but   the

quality of evidence as well.              Costello v. Ocean Cnty. Observer,

136 N.J. 594, 614 (1994) (citing Schiavone Constr. Co. v. Time,

Inc., 847 F.2d 1069, 1089 (3d Cir. 1988)).




                                          7                                 A-1377-12T3
       Guided by the same standards, Prudential Prop. & Cas. Ins.

Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif.

denied, 154 N.J. 608 (1998), we review a grant or denial of

summary judgment de novo.         We determine whether the moving party

demonstrated there were no genuine disputes as to any material

facts, and then whether the motion judge's application of the

law was correct.       Atl. Mut. Ins. Co. v. Hillside Bottling Co.,

387 N.J. Super. 224, 230-31 (App. Div.) (citations omitted),

certif. denied, 189 N.J. 104 (2006).

       Here, distilled to its essence, we are asked to determine

whether     plaintiff's    claims          are     time-barred.           Plaintiff's

argument    demands    interpretation            of    two     statutes   —    N.J.S.A.

2A:14-1.2, which is a statute of limitations governing civil

actions commenced by the State or its political subdivisions,

and N.J.S.A. 2A:14-1.1, which is a statute of repose governing

recovery of damages for any deficiency in the design, planning,

surveying, supervision or construction of an improvement to real

property.      The    question    is   a       legal    one,    subject   to   plenary

review.     Estate of Hainthaler v. Zurich Commercial Ins., 387

N.J. Super. 318, 325 (App. Div.) (citations omitted), certif.

denied, 188 N.J. 577 (2006).           See also Manalapan Realty, L.P. v.

Twp.   Comm.   of    Manalapan,    140      N.J.       366,    378   (1995)    (holding




                                           8                                   A-1377-12T3
appellate    courts     accord    no     deference     to   a   trial     judge's

conclusions on issue of law).

    We   first    consider       the    applicable     statutes.        Gilbane's

motion and the motion judge's ruling relied upon N.J.S.A. 2A:14-

1.2a, which states:

                 Except where a limitations provision
            expressly   and   specifically    applies   to
            actions commenced by the State or where a
            longer limitations period would otherwise
            apply,   and   subject   to   any    statutory
            provisions or common law rules extending
            limitations   periods,   any   civil    action
            commenced by the State shall be commenced
            within ten years next after the cause of
            action shall have accrued.

As used in the statute, the term "State" also includes "its

political    subdivisions,        any    office,       department,      division,

bureau, board, commission or agency of the State or one of its

political    subdivisions,       and    any   public    authority    or     public

agency[.]"    N.J.S.A. 2A:14-1.2c.1

    Enacted in 1991, the statute is one of limitation, fixing

the time within which an injured person must institute an action

seeking redress, typically measured from the time the cause of

action accrues.       A statute of limitations is a procedural device


1
     Although amended, effective July 1, 2013, the statute
merely deleted the former inclusion of the University of
Medicine and Dentistry of New Jersey previously included within
the definition of a political subdivision.




                                         9                                A-1377-12T3
operating as a defense to limit the remedy available upon proof

of an existing cause of action.             See E.A. Williams, Inc. v.

Russo Dev. Corp., 82 N.J. 160, 167 (1980); Rosenberg v. Town of

N. Bergen, 61 N.J. 190, 199 (1972).         The purpose behind statutes

of      limitations      "embodies        important      public         policy

considerations."       Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163

N.J. 45, 51 (2000).        Such statutes are designed "to protect

defendants   from     unexpected    enforcement    of    stale    claims      by

plaintiffs who fail to use reasonable diligence in prosecuting

their   claims."      LaFage   v.   Jani,   166   N.J.   412,    423     (2001)

(citation omitted).      See also Hein v. GM Constr. Co., 330 N.J.

Super. 282, 286 (App. Div. 2000) (reciting the purposes of a

statute of limitations as stimulating diligent prosecution of

claims, protecting against the litigation of stale claims by

penalizing dilatoriness, and serving as a measure of finality).

     Expiration of a statute of limitations operates to bar the

filing and prosecution of what is deemed a stale suit.                      See,

e.g., Burd v. N.J. Tel. Co., 149 N.J. Super. 20, 28 (App. Div.

1977), aff'd, 76 N.J. 284 (1978).         The Court has explained:

           When a plaintiff knows or has reason to know
           that he has a cause of action against an
           identifiable   defendant   and   voluntarily
           sleeps on his rights so long as to permit
           the customary period of limitations to
           expire, the pertinent considerations of
           individual justice as well as the broader
           considerations of repose, coincide to bar



                                     10                                A-1377-12T3
            his action.   Where, however, the plaintiff
            does not know or have reason to know that he
            has   a   cause    of   action   against  an
            identifiable   defendant   until  after  the
            normal period of limitations has expired,
            the considerations of individual justice and
            the considerations of repose are in conflict
            and other factors may fairly be brought into
            play.

            [Farrell v. Votator Div. of Chemetron Corp.,
            62   N.J.   111,   115   (1973)   (citations
            omitted).]

    Plaintiff argues the limitations bar of N.J.S.A. 2A:14-1.2a

does not affect its action against Gilbane, because it falls

within   the statute's exception.     As plaintiff asserts, the ten-

year limitations period applies "[e]xcept where a limitations

provision    expressly   and   specifically   applies    to    actions

commenced by the State or where a longer limitations period

would    otherwise   apply."    N.J.S.A.   2A:14-1.2a.        Plaintiff

maintains N.J.S.A. 2A:14-1.1, the statute of repose, expressly

and specifically applies to this case.        Since another statute

applies, plaintiff urges the exception renders the statute of

limitations inapplicable to its action.

    To provide context to plaintiff's argument, we recite the

statute of repose, which states in pertinent part:

            a.   No action . . . to recover damages for
            any deficiency in the . . . supervision or
            construction of an improvement to real
            property, or for any injury to property,
            real or personal, . . . arising out of the
            defective   and  unsafe  condition  of   an



                                 11                            A-1377-12T3
            improvement to real property, . . . shall be
            brought against any person performing or
            furnishing   the   .    .   .   supervision   of
            construction    or    construction    of    such
            improvement to real property, more than 10
            years after the performance or furnishing of
            such   services   and    construction.      This
            limitation shall serve as a bar to all such
            actions[,] both governmental and private
            . . . .

            b.   This section shall not bar an action by
            a governmental unit:

                   . . . .

            (2) based on willful misconduct, gross
            negligence or fraudulent concealment in
            connection with performing or furnishing the
            . . . supervision or construction of an
            improvement to real property[.]

            [N.J.S.A. 2A:14-1.1.]

      Plaintiff     asserts    its     claims   against       Gilbane    are     solely

governed     by    N.J.S.A.         2A:14-1.1b(2),      not     the     statute       of

limitations.         Further,        because    its    suit     alleges     "willful

misconduct,       gross    negligence     or    fraudulent       concealment,          in

connection with performing or furnishing the . . . supervision

or   construction         of   an     improvement      to     real      property[,]"

plaintiff reasons the ten-year period of repose does not operate

to   bar   its    action.      Accordingly,      plaintiff      asserts     no      time

limitation bars a governmental subdivision seeking to recover

damages resulting from such conduct.                  We reject this syllogism

as flawed.




                                         12                                    A-1377-12T3
       Although     some     jurisprudence            uses    the        terms      statute         of

limitations      and    statute       of    repose         interchangeably,           they       are

different.       "The basic feature of a statute of repose is the

fixed beginning and end to the time period a party has to file a

complaint."         R.A.C.      v.   P.J.S.,         Jr.,    192    N.J.      81,    96    (2007)

(citing Lieberman v. Cambridge Partners, L.L.C., 432 F.3d 482,

490    (3d   Cir.      2005)).            "Unlike      a    conventional            statute         of

limitations, the statute of repose does not bar a remedy but

rather prevents the cause of action from ever arising."                                         Port

Imperial     Condo.     Ass'n        v.    K.    Hovnanian         Port       Imperial         Urban

Renewal, Inc., 419 N.J. Super. 459, 469 (App. Div. 2011) (citing

Rosenberg, supra, 61 N.J. at 199).                     See also Daidone v. Buterick

Bulkheading, 191 N.J. 557, 565 (2007) (same).

       The   time    within      which      an       action       may    be    brought         under

N.J.S.A. 2A:14-1.1 "'is entirely unrelated to the accrual of any

cause of action[,]'" Daidone, supra, 191 N.J. at 564 (quoting

Rosenberg,    supra,       61    N.J.      at   199),       and    the    cause      of    action

specifically "ceases to exist" after ten years, id. at 566.

"The   statute      cuts   off       all    claims      after      ten     years     .     .    .    ,

irrespective of the date of injury."                        Ramirez v. Amsted Indus.,

Inc., 86 N.J. 332, 355 (1981) (citation omitted).                                "Thus injury

occurring more than ten years after the negligent act allegedly

responsible for the harm, forms no basis for recovery.                                           The




                                                13                                        A-1377-12T3
injured party literally has no cause of action."                                 Rosenberg,

supra, 61 N.J. at 199.

    The Supreme Court has considered the legislative purpose in

adopting    the       statute     of     repose.         "The    Court     perceived     the

statute     as    a        legitimate     legislative           reaction    to     judicial

decisions    expanding          the      period     of     liability       under   certain

statutes of limitations."                Ebert v. S. Jersey Gas Co., 157 N.J.

135, 138 (1999) (citing Rosenberg, supra, 61 N.J. 190).                            Earlier

court decisions had extended a contractor's liability exposure

for defective materials, equipment, and workmanship.                             Rosenberg,

supra, 61 N.J. at 194-98 (determining the statute of repose was

likely adopted as "a legislative response seeking to delimit

th[e]      greatly          increased          exposure"         facing      construction

professionals         as    a   result    of    the      judicial    expansion      of   the

period of liability under certain statutes of limitations).

    This defined purpose, as first expressed in Rosenberg, has

thereafter been reinforced by the Court.                            Most recently, the

Court has noted,

            the Legislature enacted the statute [of
            repose]   in  response   to  the    expanding
            application of the discovery rule to new
            types of tort litigation, the abandonment of
            the 'completed and accepted rule' . . . and
            the expansion of strict liability in tort
            for personal injuries caused by defects in
            new   homes  to  builder/sellers   of   those
            homes[.]




                                               14                                  A-1377-12T3
          [Town of Kearny v. Brandt, __ N.J. __, __
          (2013) (slip op. at 16) (internal quotation
          marks and citations omitted).]

Also, in Russo Farms, Inc. v. Vineland Bd. of Educ., the Court

stated:

          Before   the   statute  was   enacted,   the
          development of several trends in the common
          law created the possibility that architects
          and contractors could be sued for injuries
          long after a project was completed, and the
          statute meant to cut back on the potential
          of this group to be subject to liability for
          life.

          [144 N.J. 84, 116 (1996) (internal quotation
          marks and citations omitted).]

     Consequently, it is now well-accepted that N.J.S.A. 2A:14-

1.1 was specifically "intended to limit the time within which a

cause of action may arise against an architect or builder to ten

years from the date construction is substantially completed[,]"

such that "injuries sustained or suits filed after the ten-year

period are barred."    Greczyn v. Colgate-Palmolive, 183 N.J. 5,

18 (2005).   See also E.A. Williams, supra, 82 N.J. at 167.

     Courts have consistently construed the statute broadly to

"achieve the legislative goal of providing a reasonable measure

of   protection   against   expanding   liability   for   design   and

construction professionals[.]"    Newark Beth Israel Med. Ctr. v.

Gruzen & Partners, 124 N.J. 357, 363 (1991).        See also Brandt,

supra, __ N.J. at __ (slip op. at 18) (same); Daidone, supra,




                                 15                          A-1377-12T3
191 N.J. at 567 (same); Russo Farms, supra, 144 N.J. at 116

(same).    "The     primary    consideration            underlying       a     statute       of

repose is fairness to a defendant, the belief that there comes a

time when the defendant ought to be secure in his reasonable

expectation    that   the     slate    has    been          wiped    clean   of    ancient

obligations[.]"       R.A.C.,    supra,       192       N.J.    at     96-97     (internal

quotation marks and citations omitted).

     "Because of the deference owed to a legislative enactment,

courts generally do not expand the limitations period defined by

a statute of repose unless the Legislature carved out exceptions

that permit for tolling."             Id. at 97 (citing Lieberman, supra,

432 F.3d at 490).           The statute of repose, in fact, includes

exemptions.    By its express terms, the statute "shall not bar an

action by a governmental unit" if the action is "based upon

willful misconduct, gross negligence or fraudulent concealment

in   connection     with     performing           or    furnishing        the      .    .     .

supervision    or     construction           of        an    improvement          to    real

property[.]"    N.J.S.A. 2A:14-1.1b(2).                 Although we discovered no

opinions   discussing       application           of    this        provision,     we       are

confident the general rules of statutory construction, designed

to determine the Legislature's intent, easily guide our review.

     Looking at the plain language of N.J.S.A. 2A:14-1.1b(2), we

give the words used their ordinary meaning, Merin v. Maglaki,




                                        16                                         A-1377-12T3
126 N.J. 430, 434-35 (1992) (citations omitted).                          We find the

language      clear    on    its     face    and,   therefore,      easily     enforced

according to its terms.                Hubbard v. Reed, 168 N.J. 387, 392

(2001) (citations omitted).                 The exemption at issue provides a

public entity's cause of action will not be barred by N.J.S.A.

2A:14-1.1a if the defendant engaged in willful misconduct, gross

negligence or fraudulent concealment.                   N.J.S.A. 2A:14-1.1b(2).

The exemption meshes with the general purpose of the statute of

repose to allow a construction professional "'to be secure in

his reasonable expectation that the slate has been wiped clean

of ancient obligations, and he ought not to be called on to

resist a claim when evidence has been lost, memories have faded,

and witnesses have disappeared,'" Cyktor v. Aspen Manor Condo.

Ass'n,   359    N.J.        Super.    459,    470   (App.    Div.   2003)      (quoting

Rosenberg, supra, 61 N.J. at 201), unless a defendant engaged in

untoward conduct.

      We agree the allegations in plaintiff's amended complaint

are   drawn    to     fit    within    subsection     b(2)    of    the   statute     of

repose, with an eye at exempting its claims from the ten-year

bar of subsection a.           N.J.S.A. 2A:14-1.1.

      That said, plaintiff cannot proceed with its complaint by

ignoring its obligation to timely file claims pursuant to the

applicable      statute       of     limitations.      The    statue      of    repose,




                                             17                                A-1377-12T3
N.J.S.A.         2A:14-1.1,       may     sometimes       preclude     an    action       that

otherwise        would     be    timely    under      the   statute    of    limitations,

N.J.S.A. 2A:14-1.2.              For example, the ten-year statute of repose

would preclude suit even if the statute of limitations had not

run    on    a    claim     in    which     the       discovery    rule      was   applied.

However, the statute of repose, N.J.S.A. 2A:14-1.1, will not

save   a     claim     otherwise        barred       by   the   applicable     statute      of

limitations, N.J.S.A. 2A:14-1.2.                     See O'Connor v. Altus, 67 N.J.

106, 122-23 (1975).

       The       uniform        ten-year     limitations         period      for     actions

commenced by the State, set forth in N.J.S.A. 2A:14-1.2, was

passed by the Legislature in response to a trio of 1991 Supreme

Court decisions abolishing the long-standing common law doctrine

of "nullum tempus occurrit regi" — "no time runs against the

king" — under which the State and its agencies were exempt from

statutes of limitations generally applicable to civil actions.

N.J. Transit Corp. v. Borough of Somerville, 139 N.J. 582, 586

(1995).          See   also     Statement     to      Senate    Bill   No.    3741    (1991)

(explaining        the    bill     proposed      a    uniform     ten-year    limitations

period for "actions commenced by governmental entities formerly

protected by the nullum tempus doctrine" "[i]n order to strike a

better balance between the competing interests furthered by the

nullum tempus doctrine and statutory limitations periods, and in




                                              18                                     A-1377-12T3
order to avoid potential disputes over applicable limitations

periods").

    Contrary       to    plaintiff's    contention,          the    provision     of

N.J.S.A. 2A:14-1.2a, identifying the applicability of "another

limitations period," does not impliedly refer to the statute of

repose.   Limitations statutes are separate and distinct from the

statute of repose.2        In fact, the statute of repose "impliedly

incorporates"      the    applicable        statute     of    limitations        for

particular   actions.          O'Connor,       supra,    67        N.J.   at    122.

Consequently, a plaintiff's claim is subject to the ten-year

statute of absolute repose, as well as the separate and distinct

statute of limitations.        See, e.g., Russo Farms, supra, 144 N.J.

115-19 (noting the defendants could defeat the plaintiff's claim

on either basis under the facts of the case); E.A. Williams,

supra, 82 N.J. at 164, 172 (same).

    In O'Connor, supra, the Court explained the interaction of

the statute of limitations for tort actions, applicable in that

case,   N.J.S.A.    2A:14-2,   and     the   statute    of    repose,     N.J.S.A.

2A:14-1.1, noting both statutes were


2
     We note, at the time N.J.S.A. 2A:14-1.2 was enacted, the
statute of repose did not expressly apply to governmental
actions, making it clear the Legislature did not intend the
statute of repose to operate in place of the statute of
limitations under N.J.S.A. 2A:14-1.2.




                                       19                                  A-1377-12T3
               at work in that situation.        The latter
               [statute of repose] does not expand the two-
               year period of the personal injury statute.
               It simply provides that in any event the
               suit must be started within ten years of the
               construction, regardless of when the cause
               of action accrues.    The two-year period of
               N.J.S.A. 2A:14-2 controls to the extent that
               it "fits" within the ten years.

               [67 N.J. at 122.]

Accordingly,         if     an   action    is      barred    by   the      statute     of

limitations, it cannot be saved by the statute of repose.                            Once

a plaintiff is aware of the facts giving rise to the cause of

action, the statute of repose does not relieve the plaintiff of

the obligation to file the cause within the period defined by

the applicable statute of limitations.                      The timeliness of the

plaintiff's claim remains dependent on the applicable statute of

limitations.

    Here, plaintiff had ten years from the date it discovered

the water leakage problem to file its suit against Gilbane.                            It

failed    to    do    so,    delaying     initiation    of    suit   for    more     than

twelve years after Gilbane received the certificate of occupancy

and turned over the property to plaintiff.                        The motion judge

applied    the       law    correctly   and      properly    dismissed     plaintiff's

complaint.

    Affirmed.




                                            20                                A-1377-12T3
