ALEJANDRA E. PICADO et al. v. PANTALEO CIOCIA et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0387-06T50387-06T5

ALEJANDRA E. PICADO and

ROGER PICADO,

Plaintiffs-Appellants,

v.

PANTALEO CIOCIA and JULIA

CIOCIA,

Defendants-Respondents.

________________________________________

 

Submitted May 23, 2007 - Decided

Before Judges Fuentes and Baxter.

On appeal from Superior Court of

New Jersey, Law Division, Hudson

County, Docket No. HUD-L-6659-04.

Manuel J. Garcia, attorney for appellants.

Chasan Leyner & Lamparello, attorneys

for respondents (John V. Mallon, of

counsel and on the brief; Antonietta

Vitale, on the brief).

PER CURIAM

Plaintiff Alejandra E. Picado appeals from the order of the Law Division granting defendants' summary judgment motion and dismissing her personal injury cause of action. We affirm.

At the time of the accident, plaintiff rented the second floor apartment in a two-family house owned by defendants, who resided in the first floor apartment. Plaintiff alleges that on the morning of February 4, 2004, she was injured when she fell as she walked down the front steps of the property. She alleges that she slipped on the ice that had accumulated on the first step of the building's entranceway leading to the sidewalk.

Judge Edward O'Connor held that

[t]wo-family houses are considered to be residential rather than commercial properties under the case[] of Stewart v. [104] Wallace Street Incorporated recorded at 87 N.J. 146. The Supreme Court expressly limits the duty to maintain abutting sidewalks to commercial owners.

Thus, the judge ruled that defendants did not a have a legal duty to keep the front entrance of the property free from snow and ice. The judge also rejected plaintiff's argument that defendants owed plaintiff a higher duty of care because of her status as a tenant.

The facts here are identical to the salient facts in Smith v. Young, 300 N.J. Super. 82 (App. Div. 1997), in which we held that a two-family dwelling partly occupied by the owner, and partly rented to a tenant, retained its residential character under Stewart. Id. at 99-100. Specifically, we noted that

while the Supreme Court may have intended to include property solely held for investment purposes within the Stewart rationale, it had no intention to subsume small owner-occupied dwellings, such as two- or three-family homes, within the classification of commercial property. Such uses are clearly in a category of their own, for they are residential both "in the nature of their ownership" as well as in "the use to which the property is put." The property at issue here, being an owner-occupied, two-family home is clearly within the exempted category, absolving the owners from the duty to maintain abutting sidewalks under currently prevailing standards.

[Ibid. (internal citation omitted).]

We thus affirm substantially for the reasons expressed by Judge O'Connor in his oral opinion delivered from the bench on August 4, 2006.

 
Affirmed.

Although Roger Picado is also listed as a plaintiff based on his derivative per quod claims, we will refer to plaintiff in the singular.

(continued)

(continued)

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A-0387-06T5

July 11, 2007