JUDY SMITH v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JUDY SMITH,

Plaintiff-Appellant,

v.

CITY OF NEWARK and CITY OF

NEWARK HOUSING AUTHORITY,

Defendants-Respondents.

________________________________

Argued telephonically January 22, 2014

Decided March 5, 2014

Before Judges Reisner, Ostrer and Carroll.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-4478-10.

Ronald M. Gutwirth argued the cause for appellant.

Avion M. Benjamin, Assistant Corporation Counsel, argued the cause for respondent City of Newark (Anna P. Pereira, Newark Corporation Counsel, attorney; Ms. Benjamin, on the brief).

James G. Serritella argued the cause for respondent Newark Housing Authority (Biancamano & DiStefano, attorneys; Mr. Serritella, on the brief).

PER CURIAM

Plaintiff Judy Smith appeals from two trial court orders dated December 21, 2012, one granting summary judgment in favor of defendant City of Newark (the City) and the other granting summary judgment in favor of defendant City of Newark Housing Authority (the Authority).

Plaintiff alleged that on May 29, 2008, she tripped and fell on an uneven portion of sidewalk in front of the Oscar Miles Village apartment complex, owned by the Authority. Prior to filing suit, plaintiff served a notice of tort claim on the City. See N.J.S.A. 59:8-8.1 However, she did not serve a notice of tort claim on the Authority. Plaintiff filed suit against the City and the Authority in 2010.

Both defendants initially filed summary judgment motions before any discovery was taken. The City contended that it did not own the property where plaintiff sustained her injury. The Authority argued that it was never served with a notice of tort claim. The trial court granted both defendants' motions. Plaintiff appealed, contending that she had no opportunity to take discovery, that the City may have repaired the sidewalk after her fall thus demonstrating control over the sidewalk, and that she had preliminary evidence that the Authority was functioning as a City agency rather than as an independent entity.

We reversed and remanded, finding that summary judgment was improvidently granted, because plaintiff had no opportunity to take discovery. Smith v. City of Newark, City of Newark Housing Authority, No. A-1342-10 (App. Div. June 30, 2011) (slip op. at 10). Our opinion noted that English v. Newark Housing Authority, 138 N.J. Super. 425, 430 (App. Div. 1976), held that for purposes of the Tort Claims Act, the Authority was "a separate, independent entity" and not a "subordinate branch" of the city government. Id. at 9-10. However, we noted that case was decided in 1976, and it was unclear whether the Authority currently operated independently of the City. Ibid. We also noted that plaintiff was entitled to take discovery concerning whether the City exercised control over the sidewalk in front of the housing complex. Id. at 10.

After discovery was completed on remand, both defendants once again filed summary judgment motions. The trial court granted the City s motion, finding that the City did not own or control the sidewalk where plaintiff fell. The court granted the Authority s motion because plaintiff failed to serve a tort claim notice on the Authority. The court reasoned that the record demonstrated that the City and the Authority were separate entities, and service of a notice on the City did not satisfy plaintiff's obligation to serve a notice on the Authority.

I

On an appeal from a trial court's decision of a summary judgment motion, our review is plenary. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We consider the record de novo, using the same standard as the trial court. Ibid. For purposes of the motion, we must consider plaintiff's properly-supported proofs as true and view them in the light most favorable to her. Id. at 329. We must determine whether the record, so viewed, entitles defendants to judgment as a matter of law, or whether there are material disputes of fact that a jury must resolve. Id. at 329-30; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Considering the record with those standards in mind, we conclude that summary judgment was properly granted to both defendants. We will discuss the facts relevant to each defendant separately.

II

First, we find no merit in plaintiff's argument that the Authority should be considered a part of the City government for purposes of the Tort Claims Act. The record reflects that the Authority operates independently of the City and is a separate public entity. See N.J.S.A. 59:1-3 (defining public entity as including a public authority). The Authority receives virtually all of its funding from the federal Department of Housing and Urban Development (HUD). It receives no funding from the City. The Authority has its own separate governing body and budgeting process. It has statutory authority to sue and be sued, independent from that of the City, N.J.S.A. 40A:12A-22, and it has a law department separate from that of the City. All witnesses who were deposed on the subject testified that the Authority operates independently of the City's control. Plaintiff's summary judgment submissions did not create a material dispute of fact on that issue. We conclude that the Authority is a separate public entity for purposes of the Tort Claims Act. See Otchy v. City of Elizabeth Bd. of Educ., 325 N.J. Super. 98 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000); English, supra, 138 N.J. Super. at 430.

On this appeal, plaintiff cites a February 22, 2007 Supplemental Services Agreement between the Authority, the City and the Newark Downtown Core Redevelopment Corporation, concerning each party's responsibilities for, and right to share in revenue from, the Prudential Arena. However, that agreement clearly supports a conclusion that the Authority and the City are separate governmental entities. If the Authority were merely another department of City government, there would be no need for the City to enter into a contract with the Authority.

Finally, we reject plaintiff's argument that service on the City should be deemed substantial compliance with her obligation to serve the Authority. See Lowe v. Zarghami, 158 N.J. 606, 628-29 (1999); Dambro v. Union Cnty. Park Comm'n., 130 N.J. Super. 450, 457 (Law Div. 1974). There is no legally competent evidence in this record that plaintiff or her attorney refrained from serving a tort claim notice on the Authority due to a reasonable belief that the Authority was part of the City government. Nor is there any certification attesting that the City or Authority in fact misled plaintiff or her attorney into reasonably believing that the City owned or controlled the sidewalk or that the Authority was part of the City government. See Dambro, supra, 130 N.J. Super. at 457 (substantial compliance found where Watchung Borough tax assessor mistakenly advised plaintiff that the County Park Commission, rather than the Borough, owned the land where the accident occurred).

Plaintiff's reliance on Feinberg v. State Department of Environmental Protection, 137 N.J. 126 (1994), is misplaced. In Feinberg, the plaintiff's property was flooded by water from the Delaware & Raritan Canal, which, unknown to her, was the subject of an unrecorded lease between the State and the North Jersey Water Supply Authority. Id. at 129-30. She served tort claim notices on the Department of Environmental Protection (DEP) and the Delaware & Raritan Canal Commission. Id. at 129. She also promptly undertook an investigation to determine the identity of possible additional defendants, but her efforts were stonewalled by the State defendants. Id. at 135. "Her problem was not that she failed to make reasonable efforts to ascertain the identity of such parties, but that the original defendants thwarted those efforts." Id. at 134-35. Further, the DEP Commissioner was chairperson of the Water Supply Authority. Id. at 135. Under those unique factual circumstances, the Court held that plaintiff was entitled to an extension of time to file a notice of tort claim on the Water Supply Authority. Ibid. There are no similar factual circumstances here.

Plaintiff fell on May 29, 2008. She evidently knew or believed that the sidewalk was part of Oscar Miles Village, because she immediately complained to the apartment complex manager, Eladio Negron, about her fall. She knew she intended to file a lawsuit, because, through counsel, she served a tort claim notice on the City on August 26, 2008. Her notice stated: "A claim against the abutting property owner is anticipated. The incident was reported [to] Mr. Nagron [sic], the superintendent of the housing complex abutting Broom Street."

Plaintiff had ample time in which to research the ownership of the apartment complex, and either serve a notice on the Authority within ninety days, N.J.S.A. 59:8-8, or file a motion within one year for leave to file a notice out-of-time. See N.J.S.A. 59:8-9. Plaintiff did neither of those things. Instead, she waited two years before filing suit against the Authority and the City. On this record, we find no legal or equitable basis to find that serving a notice on the City constituted substantial compliance with the requirement to serve a notice on the Authority. See Leidy v. Cnty of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008).

Plaintiff argues that because Newark's supplemental tort claim notice form asked the claimant for the name of "the city agency . . . that you claim caused your damage," the form constituted an undertaking on the City's part to notify the Authority of plaintiff's claim because the Authority is a City "agency." See N.J.S.A. 59:8-6 (authorizing public entities to adopt their own claim notice forms). N.J.S.A. 40A:12A-17(a) does describe a local housing authority as "an agency and instrumentality of the municipality or county creating it." However, as we held in English, that does not mean that a housing authority is not a separate "public entity" for purposes of the Tort Claims Act. Moreover, in her notice, plaintiff did not name the Authority as one of the City agencies that caused her injury. Plaintiff's arguments with respect to the Authority warrant no further discussion here. R. 2:11-3(e)(1)(E).

We affirm the order granting summary judgment in favor of the Authority.

III

Next we address plaintiff's argument that there was a material dispute of fact as to whether the City undertook responsibility for repairing the sidewalks abutting Authority property or otherwise exerted control over the maintenance of those sidewalks. After undertaking a de novo review, we conclude that no reasonable jury could reach either conclusion based on the summary judgment evidence.

Evidence of the City's ownership or control of the sidewalk is required to establish the City's potential liability. Christmas v. Newark, 216 N.J. Super. 393, 397-98 (App. Div.), certif. denied, 108 N.J. 193 (1987).

Our decision that the common law sidewalk immunity does not apply to municipalities is based on the allegations in this case, and the assumptions by the courts below, that the municipality had sufficient control over or responsibility for the maintenance and repair of the sidewalk and/or the curb to serve as a basis for liability. That finding is crucial to any imposition of municipal liability because, in order to qualify as "public property," a sidewalk and/or a curb must be owned or controlled by the public entity. N.J.S.A. 59:4-1c (defining "public property" as "real or personal property owned or controlled by the public entity . . .).

[Norris v. Borough of Leonia, 160 N.J. 427, 443 (1999).]

This record contains no legally competent evidence that the City ever accepted responsibility for repairing or maintaining sidewalks abutting the Authority's properties, or ever agreed to do so. There was no such testimony from any witness who would have had personal knowledge of such an agreement. Jack Nata, a manager in the City's Department of Engineering, testified that the City occasionally repaired sidewalks adjoining City-owned buildings, but never repaired sidewalks abutting property owned by the Authority. He testified that, on one occasion, the City obtained State funding to replace two entire streets (Broad and Ferry Streets) "from building line to building line," which included "ripping up curbs, sidewalks, roadway, new streetlights, traffic signals." In that very limited context, the City replaced the sidewalks along with the roadbed. However, Nata, who was "the only [City] executive that would have supervision and control over sidewalk replacements," testified that the City had never repaired or replaced sidewalks abutting Authority property.

Nitin Patel, the Authority's principal engineer, testified that he was in charge of "central maintenance," which meant that he was responsible for procuring contracts for "major maintenance" at Authority housing complexes, including sidewalk repairs. He testified that each complex's site manager was responsible for inspecting that site's sidewalks and requesting repairs from central maintenance. As part of authorizing sidewalk repairs, Patel's practice was to take "before and after" photographs of the sidewalk. He confirmed that the sidewalk on which plaintiff fell was repaired after the fall, but he had no records of having authorized the repair and he did not know who performed the repair.

Patel testified that, on occasion, City contractors would undertake sidewalk repairs on a volunteer basis. That is, if they happened to be working in the vicinity and an Authority tenant asked them to fix a sidewalk, the contractor would accommodate the request. However, to Patel's knowledge, there was no formal arrangement between the Authority and the City "for the City of Newark to make repairs to Newark Housing Authority property." Patel also testified that if there were such an arrangement, he would know about it.

During the deposition, Patel was asked by defense counsel if he had "any reason to believe that the [C]ity is responsible to repair the sidewalk in front of the Oscar Miles Village?" Patel replied, "No." When questioned by plaintiff's counsel if he knew of "any other circumstances" in which the Authority had repaired "perimeter sidewalks," Patel responded that he did not know. He was later asked, "Is the practice of the Newark Housing Authority to believe that perimeter sidewalks are the responsibility of the City of Newark?" Patel responded, "Yes." The attorney then asked, "that's been your practice and procedure from 1985 until the present?" Patel said, "That's what my understanding is, yes."

On further questioning from defense counsel, Patel admitted that he had no factual basis for his understanding that the [City] "usually . . . takes care of" repairing perimeter sidewalks. When asked, "Have you ever seen the city do that?" he responded: "I don't know because there's a lot of sidewalks a lot of people repair. I don't know whether the city is repairing them or some private owners repaired them. I really don't know." He then clarified that it was his understanding that the City was responsible for "the perimeter of the curb and handicap ramps."2 He also stated that he assumed that the City was generally responsible for repairing all perimeter sidewalks because he had seen "the [C]ity or its contractors repairing sidewalks around the City."

Despite Patel's testimony about his general assumptions, there was no testimony from any witness, including Patel, that the City agreed with Patel's assumptions, or that the City had undertaken a duty to repair sidewalks abutting Authority property, or that the City had acted in a manner consistent with such a duty. To the contrary, the highest ranking managers at both the City and the Authority, with personal knowledge, testified that there was no such arrangement, agreement, or understanding.

Eladio Negron, who was the asset manager for Oscar Miles Village in 2008, when plaintiff fell, and had personal knowledge of the complex's operation at the time, testified unequivocally that the Authority was responsible for the maintenance of the complex, including "the sidewalk that abuts the street at Broome and Mercer" in front of Oscar Miles Village. He testified that usually he would request that sidewalk repairs be done through the Authority's central maintenance office, but occasionally he would direct his own staff to repair a sidewalk.

Negron had no specific recollection of having the sidewalk repaired at the location where plaintiff fell, but he remembered that, during that time frame, the complex was working on a project to repair tripping hazards, in preparation for a HUD inspection. He testified that the sidewalk was probably repaired as part of that project. Negron also testified that he never asked anyone from the City to replace any sidewalk abutting Authority property.

Negron remembered that in May or June 2008, a short, heavyset African-American woman reported to him that "she fell on the property." She showed him where she fell and he "observed the little crack on the sidewalk." He testified that the sidewalk was repaired thereafter, and he assumed it was repaired as part of the "tripping hazards remediation" project undertaken in contemplation of the HUD inspection. He testified that the City was not involved in the HUD inspection and no City employees were present at the inspection. Negron testified that during his entire tenure at Oscar Miles Village, from 2008 to 2011, he never saw any City employees or contractors repairing any sidewalks in front of Authority property. He also testified that he had no "reason to believe" that the City repaired the sidewalk where plaintiff fell.

In short, we are unpersuaded by plaintiff's effort to create from Nata's testimony about one discrete street replacement project an inference that the City undertook a broader responsibility to repair sidewalks in general or, specifically, to repair the Authority's sidewalks. Nor was Patel's internally contradictory testimony about the Authority's "belief" sufficient, because he provided no specific facts to substantiate that belief.

Plaintiff contends that, under N.J.R.E. 407, evidence of a subsequent repair may be admissible as proof that the person performing the repair had control over the property being repaired. See Brown v. Brown, 86 N.J. 565, 581 (1981). However, on this record, that principle does not carry the day for plaintiff. Even if an occasional City contractor performed some repair work on a volunteer basis, as an accommodation to an Authority tenant, that would not establish the City's control over the Authority's sidewalks or create a duty for the City to inspect and repair those sidewalks. Therefore, even if we infer that because the Authority had no record of fixing the sidewalk after plaintiff fell, a City employee must have fixed it, such an inference would be insufficient to avoid summary judgment.3

Because plaintiff's evidence was inadequate to create a material dispute of fact as to the City's liability, even with the benefit of all favorable inferences, we affirm the grant of summary judgment to the City.

Affirmed.

1 The City Law Department responded to the notice with a form letter stating, among other things, that compliance with the Tort Claims Act was plaintiff's responsibility, and the City would not "assume the obligation" to advise plaintiff of deficiencies in her notice.

2A curb may be considered part of the street, as opposed to part of the sidewalk. See Norris, supra, 160 N.J. at 444-46.

3 The result might be different if plaintiff had fallen on a badly-repaired sidewalk, and the issue was which entity performed the negligent repair. A person who has no legal duty to maintain a sidewalk may nonetheless incur liability if he undertakes to perform a repair and does an inadequate job, thereby creating a dangerous condition. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 152 (1981).