ROSA MARIA BORBON v. FANTASIA INDUSTRIES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5701-08T35701-08T3

ROSA MARIA BORBON,

Plaintiff-Appellant,

v.

FANTASIA INDUSTRIES, PAUL BOGOSIAN,

BOGOSIAN P & A t/a P&A ADVERTISING

AGENCY,

Defendants-Respondents.

________________________________________

 

Argued March 2, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.

L-915-08.

Timothy Madden argued the cause for appellant

(Law Office of Christopher Pitts, attorneys;

Mr. Madden, on the brief).

John C. Uyamadu argued the cause for

respondents (Law Offices of William E.

Staehle, attorneys; Mr. Uyamadu, of counsel

and on the brief).

PER CURIAM

Plaintiff Rosa Maria Borbon appeals from the order of the Law Division dismissing her personal injury cause of action against defendants Paul Bogosian and Bogosian P&A trading as P&A Advertising Agency (collectively Bogosian). Responding to Bogosian's summary judgment motion, the court held that plaintiff's claims are barred by a specific provision in the lease agreement entered into between Bogosian, as landlord, and Fantasia Industries (Fantasia), as tenant, which make the tenant responsible for maintaining the property upon which plaintiff allegedly fell and injured herself. Fantasia is also plaintiff's employer. We affirm.

Fantasia operates its business from 20 Park Place in Paramus. Plaintiff alleges that on March 3, 2006, she was injured during the course of her employment with Fantasia when she slipped and fell on ice that had formed on the ground immediately outside the entrance of her worksite. The icy conditions were caused by a broken drain pipe that leaked water onto the ground. This drain had been leaking water in this fashion throughout plaintiff's eight-year tenure at Fantasia.

Fantasia is the only tenant occupying the property located at 20 Park Place. Plaintiff does not dispute that her supervisor at Fantasia salted the area surrounding the property during the entire time she worked there. In fact, under the terms of the lease agreement between Fantasia and Bogosian, the tenant has sole responsibility for maintenance and repair of the property, including keeping the entrances and stairs free from snow and ice.

The lease agreement requires the tenant to secure and maintain liability insurance for the benefit of the landlord, with a coverage limit of not less than one million dollars. The tenant also agreed to hold the landlord harmless and indemnify it for any liabilities and costs "for any cause or reason whatsoever arising out of or by reason of the occupancy of [the property] by the Tenant or business of the Tenant."

The lease further specifically protects the landlord from liability for any damage or injury asserted by a third party "as a consequence of the failure, breakage, leakage or obstruction of the water, . . . drains, leaders, gutters . . . downspouts or the like . . . or by reason of the elements[.]" The landlord is only responsible for damage or injury resulting from "the gross negligence or willful misconduct of the Landlord or [its] agents, employees, guests, licensees, invitees, assignees or successors." Finally, although the landlord reserved a right to enter the property to perform repairs, the lease does not obligate the landlord to make any inspection or repairs.

Archie Bogosian and Paul Bogosian signed the lease on behalf of both the landlord and the tenant. The Bogosians are principals of the entity that holds title to the property and are owners of Fantasia, the tenant. Both landlord and tenant list 20 Park Place as their business address.

Against these facts, the trial court granted Bogosian's motion for summary judgment. The court concluded that the workers' compensation bar, which precluded plaintiff from recovering from her employer, applied with equal force to the landlord under these circumstances because plaintiff's employer was the only commercial tenant of the property upon which she was injured. The court also rejected plaintiff's unsubstantiated allegations that there were other commercial tenants occupying the property at the time of her accident. Finally, the court rejected plaintiff's fall-back argument that the workers' compensation bar was inapplicable because defendants', both landlord and tenant, failure to correct this longstanding dangerous condition on the worksite amounted to willful or wanton conduct.

We start our analysis by noting that plaintiff is not challenging the propriety of the trial court's dismissal of her claims against Fantasia in this appeal. The only issue before us is the court's dismissal of plaintiff's claims against Bogosian in its capacity as the landlord of 20 Park Place.

Because the trial court dismissed this matter on summary judgment, our review is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (An appellate court "employ[s] the same standard that governs trial courts in reviewing summary judgment orders"); see also Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010) ("In reviewing summary judgment orders, the propriety of the trial court's order is a legal, not a factual, question.").

A trial court must grant summary judgment to the moving party if "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Summary judgment is properly granted if the party opposing such motion "fail[s] to allege or prove [its] prima facie case." Brill, supra, 142 N.J. at 536-37. The party opposing summary judgment must show that a genuine issue of fact exists. Id. at 529. "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).

Mindful of this standard, we are satisfied that the trial court correctly granted Bogosian's motion for summary judgment. It is now well-established that "'there is no landlord liability' for personal injuries suffered by a commercial tenant's employee on the leased premises 'due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for such maintenance or repair solely upon the tenant.'" Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401 (App. Div. 2006) (quoting McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 522 (App. Div. 1996)), certif. denied, 190 N.J. 254 (2007). Unless the landlord specifically agrees to make repairs, the burden to do so falls upon the tenant. Coleman v. Steinberg, 54 N.J. 58, 63 (1969).

There are three common law exceptions to this general rule: (1) the landlord is responsible to maintain sections of the property that are not part of the lease agreement and remain under the landlord's control; (2) the landlord specifically agrees to use reasonable care to protect the tenant from injury arising from defects in the property; and (3) the landlord cannot knowingly or deceptively conceal a dangerous condition that the landlord is under a duty to disclose to the tenant. McBride, supra, 295 N.J. Super. at 525. None of these exemptions are applicable here.

 
Affirmed.

Plaintiff also filed a workers' compensation claim against Fantasia. All of her medical expenses were paid through this process. She also received a fifteen percent partial total disability award.

Archie Bogosian is not a party to this action.

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A-5701-08T3

April 20, 2010