SHA SHA MANAGEMENT, INC. et al. v. COPLEN MANAGEMENT, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0167-05T2167-05T2

SHA SHA MANAGEMENT, INC.

and VIDHYA, LLC,

Plaintiffs-Appellants,

v.

COPLEN MANAGEMENT, INC.,

and SHAH ELECTRICAL, INC.,*

Defendants-Respondents.

______________________________________________________________

 

Argued - September 12, 2006 - Decided September 29, 2006

Before Judges Kestin and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.: L-2164-04.

Michael S. Kimm argued the cause for appellants (Mr. Kimm, on the brief).

Mary F. Thurber argued the cause for respondent Coplen Management, Inc. (Thurber Cappell, attorneys; Ms. Thurber, on the brief).

David C. Donohue argued the cause for respondent Shah Electrical, Inc. (Farkas & Donohue, attorneys; Mr. Donohue, of counsel and Jennifer S. Gianetti, on the brief).

____________________

* In the caption and throughout the record, the name of this defendant is misspelled. The correct spelling, Shah Electrical, Inc., is used in this decision.

PER CURIAM

Plaintiff Vidhya, LLC (Vidhya) contracted with defendant

Coplen Management, Inc. (Coplen) to provide renovations to its commercial space in the Mill Creek Mall food court, which it sublet from plaintiff Sha Sha Management, Inc. (Sha Sha). Coplen engaged Shah Electrical, Inc. (Shah) as the electrical subcontractor. During the renovations, the fire-suppression system was triggered discharging chemicals from the overhead system. Damages for food contamination and clean-up were $20,000. Plaintiffs alleged contract and negligence liability, asserting a Shah employee was in the vicinity of the suppression system pull cord at the time the system discharged.

Coplen's motion for summary judgment was granted. After trial, the jury found Shah was not negligent and Vidhay owed Shah the balance due on the contract.

Plaintiffs' appeal from a summary judgment dismissing their complaint against Coplen, and also assert the trial judge erred by failing to provide a jury charge on res ipsa loquitur and in denying plaintiffs' motions for a judgment notwithstanding the verdict, or new trial following the trial. We affirm.

A reviewing court employs the same standards as the trial court to determine whether a motion for summary judgment should have been granted or denied. See Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Therefore, we consider whether the evidence presented, when viewed in the light most favorable to the non-movant, permits a reasonable factfinder to resolve this matter in its favor. "If the response is in the affirmative, then the summary judgment was improvidently granted. If the response is in the negative, then summary judgment was appropriate." Maussner v. Atl. City Country Club, 299 N.J. Super. 535, 555 (App. Div. 1997).

In granting summary judgment, Judge Miller examined all evidence, granting favorable inferences to plaintiffs, and properly determined no genuine issue of material fact existed and that no evidence was presented from which a jury could find Coplen liable, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995), as there existed no indemnification contract between Coplen and Vidhya, no contract between Coplen and Sha Sha, and no facts to support negligence.

Regarding plaintiff's argument for the application of the doctrine of res ipsa loquitur, we note no such jury charge was requested and therefore plaintiff will not be heard to raise the issue for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Finally, factual disputes were presented to the jury, which definitively determined the parties' rights and liabilities. Its conclusion was based upon substantial evidence in the record, and its verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977); Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).

Affirmed.

 

(continued)

(continued)

4

A-167-05T2

 

September 29, 2006