NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiffs Joseph Villano and Dorothy Villano1 are the owners of condominium unit 507 at the Wildwood Ocean Towers (the condominium) that suffered water damage. They appeal from orders that granted summary judgment, dismissing their complaint against defendants Chris Henderson Realty (CHR) and Wildwood Ocean Towers Condominium Homeowners Association (the Association) (collectively, defendants),2 and denying their motion for reconsideration. We affirm.

I.

According to plaintiffs' complaint, their unit suffered significant water damage caused by a leak from unit 607 in the three-week period following the July 4, 2010 holiday weekend. Plaintiffs alleged the Association was responsible for the inspection, maintenance and repair of the common areas of the condominium and alleged that its failure to properly discharge this responsibility as to the common areas caused the flooding incident that originated in 607. Plaintiffs alleged that, although CHR "learned of the leaking pipe" and had contact information for plaintiffs, "[CHR] never contacted [them] to inform them of the flooding event."3 The trial court granted summary judgment to defendants and subsequently denied plaintiffs' motion for reconsideration as to both summary judgment orders.

II.

It is undisputed that the Wildwood Ocean Towers Condominium Master Deed and By-Laws (the By-Laws) govern the relationship between the Association and the individual unit owners. Pursuant to the By-Laws, the individual unit owners are responsible for maintenance of the individual units, including the air conditioning unit. The Association is responsible for maintenance of the common areas.

Plaintiffs conceded the leak that damaged their unit did not originate in a "common area" and that they are responsible for the inside walls of their unit, whatever the cause of the damages might be.

CHR rents units at Wildwood Ocean Towers Condominium for individual homeowners and provides paid, on-call maintenance service to unit owners who hired CHR to rent their units. In 2010, the owners of units 508, 607 and 608 each rented their units through CHR and received this service. There was no evidence of a contractual relationship between CHR and plaintiffs, who have not rented their unit since approximately 1987. Plaintiffs and their family use 507 in the summer and on weekends.

In June 2010, Frank Stanton, one of CHR's maintenance men, was called to unit 508 regarding a leak in the dining room ceiling, located in the soffit by the air conditioning vent. He went to unit 608, which was directly above 508 and found that the condensation pipe from the air conditioning unit was leaking, causing the water to leak into 508. He cleaned out the condensation pipe in 608 and then returned to 508, where he poked the ceiling to drain any remaining water and cleaned up the water with a shop vac.

As of the Fourth of July weekend of 2010, plaintiffs' unit was undamaged. Plaintiffs' daughter, Lori Kundla, and her family stayed in 507 that weekend. Lori informed Dorothy that "everything was fine." She and her family left on July 5, 2010.

Plaintiffs' unit remained vacant until July 30, 2010, when their other daughter, Linda Ginnakis, went to stay in 507 with her husband, James Ginnakis, and their children. James and Linda were not deposed and did not submit affidavits in opposition to the summary judgment motion. Plaintiffs' version of events thereafter largely depends upon hearsay statements included in Dorothy's deposition testimony.

Linda told Dorothy that they discovered the front door of 507 "was swollen shut," and that James "push[ed] his weight against the door" to open it. Once the door opened, the Ginnakises were "hit" with a "stench." Inside, they discovered the four walls in the dining room were "black" with mold, the rug and walls were saturated with water, and the wallpaper was falling off the wall.

The Ginnakises took pictures and called plaintiffs the following day to inform them about the damage. Dorothy testified that her daughter said James spoke to one of the guards at the reception desk, who said, "I will send someone up to check it out, find out what's wrong." Linda told Dorothy that "Woody" (Stephen Ward, the condominium's maintenance manager) came to the unit and said, "oh my gosh, I didn't think it was this bad." Dorothy testified: "I don't know what he discussed or was talking about, but he finally left. And we never heard anything back from that encounter."

John Lawless, the guard at the reception area, testified the Ginnakises came to his desk and showed him two photographs. He described the conversation that followed:

Lawless testified he checked 507 twice during the following two weeks. He did not observe any mold issues on either occasion. After each visit, Lawless called Linda and informed her that he "didn't see anything" and "everything looked good." Lawless testified he was never notified of any leaks in 607.

After speaking to Lawless, the Ginnakises left the condominium on July 31, 2010. Plaintiffs did not return to their unit, which remained vacant, until September 12, 2010, when plaintiffs came to attend an Association meeting.

In her deposition, Dorothy recounted a conversation she had with the owner of 508, the unit next door to theirs, when plaintiffs were at their unit for the Association meeting. Dorothy did not know the name of her neighbor. The neighbor did not testify or provide an affidavit. Dorothy stated the neighbor reported having some water damage in her dining room and said there had been a problem with water leaking upstairs in unit 607. Plaintiffs claimed this was when they first learned that the damage to 507 was caused by water issues originating in a unit above theirs.

At the Association meeting, Joseph informed the Board of Directors that "he experienced water damage and mold in his unit," stated "he reported it to the management" and complained that no one had checked 507 for damage or notified them about the leak. In addition, Joseph accused Stanton of power washing the air conditioning unit on the balcony of either 607 or 608.

Christine Henderson, the owner of CHR, called Stanton and asked him to inspect 607, the unit directly above plaintiffs' unit. In an affidavit, Stanton stated he went to 607, where he found "[t]he condensation pipe was slightly dislodged from the drain pipe, but [he] found no water on the floor." Stanton told Henderson what he had observed. Henderson went to 607 with Stanton, confirmed his report, and then went to 507. She told plaintiffs the pipe situation could be a possible source of water or leak and invited them to see it themselves.

Plaintiffs and Henderson then went to 607, where they met with Stanton; Richard Payne, the building manager; Robert Grandenetti, president of The Association's Board of Directors; and Bob Ferris, another Association Board member. Plaintiffs were shown the air conditioning unit in the utility closet on the balcony. Stanton explained to plaintiffs that while a tenant was trying to store a large piece of furniture, the condensation pipe to the air conditioner unit became dislodged, which caused water to leak onto the floor.

CHR filed a motion for summary judgment in April 2013. In May 2013, plaintiffs produced two expert reports.

Ronald DePiro, a realtor, prepared a report for the purpose of establishing the standard of care applicable to CHR. DePiro opined that, based upon CHR's management/lease agreement with the owner[s] of 508 and 608, it had a duty to notify "surrounding unit owners . . . as to the problem in unit 608." DePiro characterized the source of CHR's "required actions" as "their lease/management arrangement." However, he cited no written agreement and acknowledged that the "agreement" might only be "an implied agreement based on [CHR's] actions."

Plaintiffs also produced an expert report from Henry P. Shotwell, Ph.D., who is certified in the comprehensive practice of industrial hygiene, regarding the cause of the mold growth in their unit. He concluded "to a reasonable degree of scientific certainty, that the mold growth in unit no. 507 was the direct result of a water infiltration into unit 507, flowing from the floor above." Shotwell did not specify what unit was the origin of the water.

In their appeal from the orders granting summary judgment and denying reconsideration, plaintiffs argue the trial judge erred in finding the Association had no duty to them because its written policy regarding "Emergency Response in Units" (ERP) established a duty to notify tenants and owners about water issues in other units when it became aware of it. Plaintiffs also contend a material issue of fact existed that would support a jury determination that the Association "knew about the leak from unit 607 as well as unit 6084 and failed to notify [plaintiffs] that their unit may have been affected." Plaintiffs argue the trial judge erred in granting summary judgment to CHR because CHR had a duty to address the potential damage to plaintiffs' unit by conducting an investigation or notifying plaintiffs of the potential damage to their unit. After reviewing these arguments in light of the record and applicable legal principles, we conclude that neither argument has merit.

III.

In reviewing a summary judgment order, we view the evidence "in [the] light most favorable to the non-moving party," and determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

To defeat a motion for summary judgment, "[t]he opponent must `come forward with evidence' that creates a genuine issue of material fact." Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J.Super. 1, 32 (App. Div.) (quoting Brill, supra, 142 N.J. at 529), certif. denied, 211 N.J. 608 (2012); see R. 4:46-2(c). "Although we must view the evidential materials . . . in the light most favorable to the non-moving party in reviewing summary judgment motions, . . . it is evidence that must be relied upon to establish a genuine issue of fact." Cortez v. Gindhart, 435 N.J.Super. 589, 605 (App. Div. 2014), (first alteration in original) (emphasis omitted) (citation omitted), certif. denied, 220 N.J. 269 (2015). "Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Hoffman v. Asseenontv.Com, Inc., 404 N.J.Super. 415, 426 (App. Div. 2009) (citation omitted).

A.

In challenging the trial judge's conclusion that CHR owed no duty to protect them against the damage that occurred, plaintiffs contend there is "substantial evidence . . . that CHR acted in a capacity greater than just a realtor, and thus that a duty to notify [plaintiffs] of potential water damage to their unit and to fix the leak may have arisen." Plaintiffs have proffered no expert opinion to support the contention that a duty existed based upon a status other than as a realtor. The only expert opinion regarding CHR's duty of care proffered by plaintiffs was from a realtor. Plaintiffs' argument implicitly concedes that any duty CHR owed as a realtor did not extend to them and create a duty to take further action as to their unit.

Plaintiffs further argue that DePiro's expert opinion adequately defined the duty CHR owed to them, requiring the reversal of the order granting summary judgment to CHR. We disagree.

The applicable legal principle was set forth in Brill:

"An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If an expert's opinion relies upon "a factually inaccurate and unjustifiable assertion," it fails to create a genuine issue of material fact that will preclude summary judgment. Brill, supra, 142 N.J. at 544.

Here, DePiro relied upon an agreement as the source of CHR's duty. There was no contractual relationship between plaintiffs and CHR. According to DePiro, CHR's duty was derivative of its contractual relationship with the owners of units 607 and 608. Yet, there is no evidence that identifies what its duties in that relationship were. DePiro cannot even say a written agreement existed; he states "they had a lease/management agreement or at least an implied agreement based on their actions." The fact that CHR took the actions it did for unit owners with whom it did have such an agreement in no way supports DePiro's assertion that an agreement, explicit or implied, existed between CHR and plaintiffs, creating a duty.

An expert's conclusion is considered to be a "net opinion," and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence. Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The record fails to support DePiro's premise that an agreement existed between CHR and plaintiffs that created a duty or that the agreements that did exist between CHR and unit owners created such a duty. Moreover, since DePiro's opinion relied upon an unjustifiable assertion, it did not create a material issue of fact, precluding summary judgment.

B.

Plaintiffs also argue the ERP established a duty on the part of the Association to notify them of water damage to their unit. Again, we disagree.

The ERP, which defines the Association's duties for "[e]mergency situations" in a unit or common area, states:

The ERP also states, "EVERY MEANS POSSIBLE WILL BE UTILIZED TO CONTACT ALL OWNERS AFFECTED BY THE INCIDENT." (Emphasis in original).

The critical point is that the duty arises "[w]hen a leak is discovered." Even then, the actions the Association is obliged to take "are limited to [an] immediate response to minimize damage." The ERP does not require the Association to conduct any investigation to uncover possible damage or to alert unit owners that their units "may" be affected.

Shotwell's report stated the damage to plaintiffs' unit was "the direct result of a water infiltration into unit 507, flowing from the floor above." Plaintiffs have cited no competent evidence in the record to support the conclusion that the Association had knowledge of a leak in 607 before the September 2010 meeting. Their attempt to rely upon hearsay statements as proof is insufficient to survive summary judgment. Even if their attempt to cobble together an argument that the duty was triggered by the leak in 608 had not been rejected by the court, it would also fail as the undisputed evidence is that their unit was not damaged when their daughter visited for the July 4, 2010 weekend, after the damage in 608 and 508 had been discovered and remediated.

We therefore conclude plaintiffs failed to present competent, credible evidence sufficient to show the existence of a genuine issue of material fact and summary judgment was properly granted.

Affirmed.