PAUL BREZA v. PETER GIANCOLA & SONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6110-11T1

PAUL BREZA AND JOANNE BREZA,

Plaintiffs-Appellants,

v.

PETER GIANCOLA & SONS, INC.,

GREG COSTA and VINCE COSTA,

Defendants,

and

BRIARWOOD HOMEOWNERS

ASSOCIATION,

Defendant-Respondent.

__________________________

May 29, 2013

Argued February 5, 2013 Decided

Before Judges Ostrer and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0167-09.

Evan J. Lide argued the cause for appellant Paul Breza (Stark & Stark, attorneys; Lara R. Lovett and J. Robert Bratman, of counsel and on the brief).

David B. Wright argued the cause for respondent (Amy F. Loperfido & Associates, attorneys; Mr. Wright, on the brief).

PER CURIAM

Plaintiffs appeal from the denial of their motion to reconsider the Law Division's grant of summary judgment in favor of defendant Briarwood Homeowners Association (BHA) dismissing their complaint seeking damages for personal injuries suffered by plaintiff Paul Breza.1 Plaintiff argues that BHA "created the dangerous condition" that caused plaintiff's injury and that the motion court erred in determining that BHA had no notice of the condition.

I.

Before discussing the merits of plaintiff's legal arguments, we clarify what is cognizable on appeal and what is not. Plaintiff only appealed from the denial of the motion for reconsideration and has specifically argued that, "[t]he trial court erred when it denied plaintiff's motion for reconsideration of the February 22, 2011 order granting summary judgment in defendant's favor." Consequently, our review is limited solely to that order.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013). See, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J.Super.470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal);Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. FundicaoBalancins, Ltd., 397 N.J. Super. 455, 458 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

The denial of a motion for reconsideration rests within the sound discretion of the trial judge. Fusco, 349 N.J. Super. at 462. "Motions for reconsideration are granted only under very narrow circumstances." Ibid. We have long recognized that:

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

A motion for reconsideration must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2.

The record before us consists of various deposition transcripts, an expert's report, a contract, some photographs, the orders, the transcripts of oral argument and the judge's oral opinions. As best we can gather, plaintiff argued reconsideration of the order for summary judgment was appropriate because it was based on a palpably incorrect basis.

Ordinarily, our review of a motion court order granting summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

In any event, following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff has owned a townhome in the Stafford Court section of the Briarwood condominium development since the mid-1980s. The townhome, like others in the area, has a ground-level front door opening onto a concrete landing. The landing is connected to the common sidewalk fronting all the townhomes by a concrete "access walkway." On either side of the access walkway to each townhome, there is a front lawn, which BHA is responsible to mow, but the adjacent owner is responsible to maintain. BHA is responsible to maintain the common sidewalks, but the individual townhome owner is responsible to maintain the access walkway serving his or her unit.

In March 2007, BHA contracted with defendant Peter Giancola & Sons ("Giancola") to replace portions of the common sidewalk throughout the development. The sidewalk replacement contract stated: "After the concrete has dried, the forms must be removed and the earth replaced and the area properly compacted, graded, reseeded or the original sod replaced." Briarwood townhome owners were told that if they wanted any work done on their individual landings and access walkways, they could hire Giancola privately for that work, and Giancola would give them a favorable rate.

Although work on the project originally had been scheduled to start in March 2007, work did not actually commence until the Fall of 2007 due to the untimely death of a family member of one of Giancola's principals. Plaintiff, who knew the principals of Giancola personally, recalls that he asked one of them to examine his access walkway and advise if it needed repair. Giancola and plaintiff reached agreement for replacement of the access walkway, although no written contract was signed and plaintiff was never billed for the replacement.

Accordingly, one day that Fall, plaintiff "came home from work" and saw that Giancola had removed the old walkway and had "formed out" the new walkway. Because he felt the proposed path of the new walkway was "too steep," plaintiff called Giancola's office and left a message to that effect. The next day, however, plaintiff returned from work and saw that Giancola had poured the concrete for the new walkway using the forms they had left in place the day before. After plaintiff called to remonstrate, Giancola advised they would "take it out and you get somebody else to replace it." Plaintiff "wasn't happy" but accepted the work that was done.

Shortly thereafter, Giancola's workers returned to remove the forms from plaintiff's new concrete access walkway, and put dirt, or organic compost, into the "gullies" beside the new concrete walk where the forms had been. Plaintiff, who acknowledges that he was responsible for the access walkway, nonetheless "thinks" he called a woman from the management company that had been hired by BHA to complain "about the job [Giancola] did[,]" and recalls that he met the woman at his home later on. Plaintiff stated he complained about the slope of the walkway and the "look" of the gullies. He also felt the gullies posed a potential falling hazard for those who stepped off the access walkway. Plaintiff does not recall any response from the management representative.

In any event, at approximately 5:45 a.m. on February 2, 2008, plaintiff left his home and started walking down the access walkway to his car. When he got to the end of the access walkway, he stepped onto the common sidewalk and slipped and fell, suffering injuries. He claims he fell on a mix of ice and mud that had washed from the gullies along his access walkway onto the common sidewalk.

Neither plaintiff nor his wife had ever noticed that condition at any time prior to plaintiff's fall. Plaintiff also stated there was no accumulation of ice or mud on the access walkway, itself, and that he had had no trouble walking prior to stepping onto the common sidewalk at the point where it met the access walkway.

Plaintiff's engineering expert noted that an inch and a half of rain had fallen the day prior to plaintiff's accident, and that temperatures varied on both days between 28 and 48 degrees. In his report, the engineer faulted both Giancola and BHA. As to BHA, plaintiff's engineer stated, among other things, that it "should have anticipated that mud would wash onto the sidewalk, from Giancola's work along the walkway and the sidewalk."

Plaintiff thereafter filed a complaint against Giancola and BHA. After the completion of discovery, BHA moved for summary judgment and argued it had no notice of the alleged dangerous condition. The motion judge agreed and on February 22, 2011, granted summary judgment, finding "there was not enough notice of the defect when the precipitation occurred overnight." Plaintiff sought reconsideration and the motion judge rejected plaintiff's arguments on April 29, 2011, reasoning, in part:

The [c]ourt feels that the motion for reconsideration should be denied because no argument or evidence shows that [BHA] was on notice of any defect on the common sidewalk which was the cause of the fall. The [c]ourt did not conclude that the accident occurred on the access walk but presumed for the purposes of summary judgment that the fall occurred on the common sidewalk. However, the [c]ourt found that there was no notice to [BHA] that the mud or ice could formulate on the common sidewalk. Breza then introduces evidence not presented in the motion for summary judgment, namely the deposition testimony of Paul Breza. This new evidence should not be considered pursuant to Rule 4:49-2.

However, even if the testimony is considered, the [c]ourt feels that it runs contrary to Breza's allegation that he notified [BHA] of the defect to the common sidewalk. The testimony cited . . . was regarding Breza's own access walk which is not land which [BHA] must [] maintain[]. Since nothing provided . . . changes the lack of notice for [BHA], the motion for reconsideration should be denied.

The [c]ourt also wants to re-emphasize that the basic decision was on the fact that [BHA] was never put on notice of the mud or the ice that was on the walkway and that was the cause of . . . Breza's fall. It may have been because of the gullies and that was a factor. But, the fact remains is that he did not fall in the gullies. He fell on the mud and ice and the [c]ourt's opinion is that [BHA] had to be on notice of that condition in order to remedy it that would have prevented Breza from falling.

Plaintiff filed this appeal after settling the claims against Giancola.

II.

Plaintiff argues on appeal that the motion court was palpably incorrect in finding that BHA did not create the dangerous condition that caused plaintiff's injury. Plaintiff further argues that the motion court erred in determining that BHA had no notice of the condition.

The record before us clearly demonstrates that BHA did not "create" the alleged dangerous condition that led to plaintiff's injury. Rather, plaintiff privately hired Giancola to replace his access walkway and, viewing the evidence most favorably to plaintiff, it was the work of plaintiff's private contractor that created the back-filled gullies that later washed out onto the common sidewalk. BHA did not pay for that work, hire Giancola to do that work or accept any responsibility for the manner in which it was carried out.

We recognize that "under some circumstances the knowledge of a dangerous condition, regardless of control over that condition, may impose upon a person a duty to warn third parties of the danger[.]" Siddons v. Cook, 382 N.J. Super. 1, 10 (App. Div. 2005); see also Monaco v. Hartz Mountain Corp., 178 N.J. 401, 416 (2004) ("a landlord may not sit idly by a hazardous condition affecting its property, regardless of control, when that condition places a third party in danger."). Accordingly, we examine the application of this principle in the circumstances before us.

A condominium development is a "new form of real property ownership" recognized by the Legislature in the Condominium Act, N.J.S.A. 46:8B-1 to 38. Fox v. Kings Grant Maint. Ass'n, 167 N.J. 208, 218 (2001). Under the Condominium Act, a condominium association has a duty to its residents for "[t]he maintenance, repair, replacement, cleaning and sanitation of the common elements [of the development]." N.J.S.A. 46:8B-14. We have interpreted that statute to create a duty of care by the condominium association to warn the residents of known defects to the premises. Siddons, supra, 382 N.J. Super. at 7-8. In so holding, we were guided by cases discussing the common-law obligations of landowners. Ibid.

A landowner generally is not liable for injuries caused by defects for which it had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563.

In addition, "[n]egligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). "[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (internal quotation marks omitted).

In regard to the removal of snow and ice, the New Jersey Supreme Court has stated that, to find a breach of duty, "[t]he test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition." Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983).

To defeat a motion for summary judgment in a negligence action, a plaintiff must make a prima facie showing of a duty owed, breach of that duty, causation, and damages. Siddons, supra, 382 N.J. Super. at 13. Moreover, "[a] plaintiff's self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion." Pressler & Verniero, supra, comment 2.3.1 on R. 4:46-2 (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002)).

Guided by these principles, we do not find that the motion judge abused his discretion in denying plaintiff's motion for reconsideration or that he decided the motion on a palpably incorrect basis. In granting BHA's summary judgment motion, the judge determined that: "[BHA] did not notice a problem with ice or mud on the common sidewalk from the time that the sidewalks were completed until after Breza fell. Breza also did not notice any problem with the ice or mud on the common sidewalk until after he fell."

The incident occurred about three months after Giancola completed its work. Plaintiff contends that "the dangerous condition that caused this accident was not the actual rain that fell the evening before the accident occurred but the fact that the gullies were dug and left with no grass planted for an almost three-month time period before the accident that that was the dangerous condition." Plaintiff presented an expert report that stated if BHA had replaced the grass in a timely fashion, the incident would have been prevented, because grass would have limited the erosion and mud forming on the sidewalk, which plaintiff alleges caused him to fall.

However, as we noted earlier, the gullies along plaintiff's downward-sloped access walkway were created by plaintiff's own contractor. BHA had no independent duty to remedy a condition along plaintiff's private access walkway which was created by plaintiff's own contractor.

Further, plaintiff has not presented evidence overcoming the lack of notice or showing that BHA acted unreasonably in any fashion. A fall on ice or mud on a common element, without more, does not automatically bespeak a lack of reasonableness on the part of those charged with the maintenance of that common element. Also, plaintiff said that he had never before seen dirt, mud or ice on either the access walkway or the common sidewalk, and he did not know how long the ice and mud had been on the walkway before he fell. He claimed that he contacted BHA and complained about the slope of his access walkway and gullies. Even accepting this allegation as true, plaintiff's complaint was about his own access walkway, not the common sidewalk.

The remainder of plaintiff's arguments, as well as BHA's argument that the appeal is untimely, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Although plaintiff's wife, Joanne, is also a plaintiff on the per quod claim, for ease of reference we shall refer to plaintiffs in the singular hereinafter.