FRANCISCO LAGONIGRO v. LaVECCHIA GROUP, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4515-04T54515-04T5

FRANCISCO LAGONIGRO,

Plaintiff-Appellant,

v.

LaVECCHIA GROUP, LLC,

Defendant-Respondent,

and

LA GROTTA DEGLI AMICI, INC.,

Defendant.

 

Argued: March 13, 2006 - Decided:

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number ESX-L-11740-02.

Daniel B. Needle argued the cause for appellant (Kohn, Needle & Silverman, attorneys; Mr. Needle, on the brief).

Murray A. Klayman argued the cause for respondent.

PER CURIAM

In this slip and fall personal injury action, plaintiff Francisco Lagonigro appeals from an order entered in the Law Division on March 2, 2005, granting summary judgment in favor of defendant LaVecchia Group, LLC, and from an order issued on April 15, 2005, denying his motion for reconsideration. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

LaVecchia Group, LLC owns premises located at 291-293 Essex Street in Millburn, New Jersey. Defendant leased the "entire restaurant premises located at 293 Essex Street" to La Grotta Degli Amici Restaurant under a five-year Lease Agreement dated December 29, 2000, running from January 1, 2001 through December 31, 2005. Paragraph 5 of the lease provides, in pertinent part, that "[t]he Tenant will neither encumber nor obstruct the sidewalks, driveways, yards, entrances, hallways and stairs, but will keep and maintain the same in a clean condition, free from debris, trash, refuse, snow and ice."

Mario LaVecchia was the manager of LaVecchia, and the president of La Grotta Degli Amici. Mr. LaVecchia also managed the restaurant. On January 5, 2001, plaintiff was an employee of La Grotta Degli Amici and was working at the restaurant. At approximately 11:30 a.m., plaintiff exited the restaurant through the kitchen door and was walking on the premises towards the cellar where food supplies were stored when, due to snow and ice, he slipped, fell backward, twisted his body, and landed on his back, suffering personal injuries. The surface on which plaintiff slipped was ceramic tile covered with snow and ice.

Following the fall, plaintiff's treating physician diagnosed him as suffering from acute traumatic cervico-thoracic and lumbosacral sprains, disc bulging and posterior disc herniation at L3-4 adjacent to the mid-ventral aspect of the thecal sac, left lumbar and radiculopathy at L4-5, and radicular neuritis complicated by intervertebral disc syndrome.

On December 13, 2002, plaintiff filed a complaint in the Law Division against LaVecchia Group, LLC, La Grotta Degli Amici, Inc., and certain fictitiously-named defendants that may have been responsible for maintenance of the premises, including snow and ice removal, upon which he fell. Plaintiff also filed a workers' compensation claim against his employer La Grotta Degli Amici, Inc., and was awarded benefits to compensate him for his injuries.

On August 11, 2004, defendant LaVecchia moved for summary judgment, contending that under the explicit terms of the lease it was not responsible for snow and ice removal on the leased premises. The motion was returnable on September 10, 2004. Plaintiff submitted a letter memorandum in opposition to defendant's motion for summary judgment, accompanied by a three-page, unsigned statement allegedly made by Mario LaVecchia to an insurance company investigator. In that statement, Mr. LaVecchia asserted that the landlord had nothing to do with the restaurant business, which is responsible for maintenance of the interior of the premises, but the landlord assumed responsibility for exterior maintenance of the premises which included the removal of snow and ice. On September 7, 2004, defendant responded to plaintiff's letter memorandum. Then, on September 22, 2004, defendant submitted a certification signed by Mr. LaVecchia denying that he wrote the statement or that he made any of the comments in the three-page submission, and noting that the statement submitted had not been signed by him. There was no certification, affidavit or statement from the insurance investigator stating or confirming that the content of that written statement had been related to him or her by Mr. LaVecchia.

When the parties did not settle, the motion judge informed the parties he would notify them of a date for oral argument. However, the court never notified counsel of a date and, instead, issued an order on October 28, 2004, denying defendant's motion for summary judgment, stating there were material facts in dispute.

However, defendant renewed its motion for summary judgment. On March 2, 2005, Judge Marie P. Simonelli heard argument and granted summary judgment in favor of defendant LaVecchia Group, LLC. In doing so, the judge found that under paragraph 1 of the lease agreement between LaVecchia and La Grotta, La Grotta had leased the entire restaurant premises, and, pursuant to paragraph 5 of the lease agreement, had assumed responsibility for the maintenance of the sidewalks, driveways, yards, entrances. hallways, and stairs to those premises, including maintaining them in a clean condition, "free from debris, trash, refuse, snow and ice." The judge concluded, thereby, that defendant LaVecchia Group, LLC could not be held responsible "because the lease gave [La Grotta] exclusive possession of the premises and responsibility for maintenance and repair."

On or about March 22, 2005, plaintiff filed a motion for reconsideration. The motion was argued in the Law Division before Judge Simonelli on April 15, 2005. In denying the reconsideration motion, the judge rejected plaintiff's contention that application of the principles set forth in Carvalho v. Toll Bros. and Developers, 143 N.J. 565 (1996), required imposition of a duty on LaVecchia Group, LLC. to plaintiff with respect to snow and ice on the leased premises. The judge stated, in pertinent part:

I have read that case a few times and I find that it does not apply in the present case. Carvalho involved the imposition of liability on a construction site engineer where the general contractor under a facility agreement was to be solely responsible for construction means, methods, techniques, . . . sequences and procedures utilized in connection with the work. A worker was killed by a collapsing trench.

The trial court granted summary judgment in favor of the engineer and the Appellate Division reversed. In upholding the Appellate Division's decision, the Supreme Court essentially based its rationale on N.J.S.A. 2A:40A-2(2), which provides that a hold harmless construction agreement indemnifying an architect or engineer [from their own negligence] constitutes a per se violation of public policy[.] . . .

Since the engineer in Carvalho was required to have an inspector at the construction site every day to monitor the progress of the work and had the authority to stop work on the project, the Court found that a duty arose on the engineer's behalf which precluded the granting of summary judgment in his favor.

The present case is completely distinguishable. The site of the alleged accident was not a construction job . . . and no general contractors, subcontractors, engineers or architects were involved.

This case involves a clear and unambiguous lease agreement where an employee of the lessee was injured on the leased premises. Therefore, as I said, the Court finds that Carvalho is totally inapplicable to this case.

On April 15, 2005, the judge issued an order denying plaintiff's motion for reconsideration.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE LOWER COURT ERRED IN BASING ITS DECISION IN FINDINGS OF FACT NOT SUPPORTED BY THE RECORD.

POINT II

THE LOWER COURT ERRED IN FINDING THAT THERE WERE NO GROUNDS FOR GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION.

POINT III

THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO LaVECCHIA.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without merit, and we affirm substantially for the reasons articulated by Judge Simonelli in her oral decisions delivered on March 2, 2005, and April 15, 2005. We add the following.

Plaintiff contends the motion judge erred by entertaining defendant's renewed motion for summary judgment because the court had previously denied summary judgment. We disagree.

The October 28, 2004 order denying summary judgment was entered by the motion judge without affording the parties oral argument, after informing them that he would notify them of a date when argument would be heard. Although the order recites, in the margin, that summary judgment was denied because "material facts are in dispute[,]" there was no record of the basis for that determination or an analysis. Accordingly, we find no misapplication of discretion by Judge Simonelli in electing to consider defendant's summary judgment motion.

"The trial judge has the inherent power to review, revise, reconsider and modify interlocutory orders at any time prior to the entry of final judgment." C.P. v. Twp. of Piscataway Bd. of Educ., 293 N.J. Super. 421, 431 (App. Div. 1996) (prior denials of defendant's motion for summary judgment did not become law of the case, precluding renewal at the time of trial). A denial of summary judgment is always interlocutory and never precludes the entry of judgment for the movant later in the case. Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998).

Here, citing to our opinion in Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349 (App. Div. 2004), affirmed, 184 N.J. 415 (2005), cert. denied sub nom., Gonzalez v. Komatsu Forklift U.S. , Inc., ___ U.S. ___, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006), Judge Simonelli stated, in pertinent part:

[T]he law of the case doctrine is a discretionary guideline and does not obligate a judge to slavishly follow an erroneous or uncertain interlocutory ruling. Thus, the respect and deference which should be given to prior rulings in the same case must be balanced against other considerations, particularly the impact of new law or new facts or where the confusing nature of the prior decision requires clarification.

We agree. Judge Simonelli's ruling was not contrary to the law of the case doctrine because it was interlocutory and interlocutory orders remain subject to revision at any time before the entry of final judgment. Gonzalez, supra, 371 N.J. Super. at 354-55. Here, the order denying summary judgment is not subject to the law of the case doctrine because it decided nothing and merely reserved issues for further disposition. Id. at 356.

Plaintiff further argues that the trial court erred in granting summary judgment to defendant. We disagree. LaVecchia was entitled to judgment as a matter of law. The record establishes that plaintiff fell on the restaurant's premises which, under the lease, were under the control of the commercial tenant, La Grotta Degli Amici, Inc., which had the responsibility for maintenance, that included the duty to remove snow and ice. Although Mario LaVecchia is a principal in both the landlord and tenant, La Grotta has a separate corporate identity, and not all members of LaVecchia are principals of La Grotta. There was no legitimate question of fact regarding La Grotta's exclusive possession of the leased restaurant area in which plaintiff was hurt, and there is nothing in the record to support plaintiff's contention that the landlord LaVecchia retained control of that portion of the leased premises on which plaintiff was injured. The unsigned, uncorroborated handwritten statement attributed to Mr. LaVecchia by plaintiff fails to constitute competent evidence. "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe and Foundry Co. v. American Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961). Therefore, under the explicit terms of the lease, the allocation of responsibility for that portion of the property falls squarely upon the tenant La Grotta, and Judge Simonelli properly granted summary judgment.

Affirmed.

 

Judge Fall was unable to be present at oral argument. However, he has otherwise participated in this appeal and has listened to an audio tape of the argument proceedings.

The exclusive workers' compensation remedy provision contained in N.J.S.A. 34:15-8 barred plaintiff's Law Division claim against his employer based on allegations of negligence.

(continued)

(continued)

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A-4515-04T5

August 3, 2006