CLORINDA NORIEGA et al. v. TMC PROPERTIES, LLC

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1720-04T11720-04T1

CLORINDA NORIEGA and CARLOS NORIEGA,

her husband,

Plaintiff-Appellant,

v.

TMC PROPERTIES, LLC,

Defendant-Respondent,

and

TMC PROPERTIES, LLC,

Third-Party Plaintiff-Respondent,

v.

PLASTXWORLD, INC. and TRAVELERS

INSURANCE COMPANY,

Third-Party Defendants-Respondents.

__________________________________

 

Argued October 12, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Morris County,

No. L-886-03.

Vincent Jesuele argued the cause for

appellant (Kessler, DiGiovanni & Jesuele,

attorneys; Mr. Jesuele, on the brief).

Deirdre M. Dennis argued the cause for

respondent/third-party plaintiff

TMC Properties, LLC (Brigid Hagerty

Farley, attorney; Ms. Dennis, on the brief).

Third-Party respondents PlastxWorld, Inc.

and Travelers Insurance Company did not

participate in this appeal.

PER CURIAM

Plaintiff appeals from trial court orders granting defendant's motion for summary judgment and denying plaintiff's motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was injured on January 16, 2002, when she fell in a building owned by defendant, TMC Properties, LLC, and leased to her employer, Plastxworld, Inc. Plaintiff was walking down a set of interior concrete steps when she slipped and fell and injured herself. Friction treads had been affixed to the steps to make them safer; plaintiff alleged that one of those treads came off as she stepped on it, causing her to fall. Plaintiff sued TMC, contending it was responsible for maintaining the stair treads in good condition.

Plastxworld rented the entire building from TMC. Paragraph 7 of the lease dealt with the parties' obligations for repair and maintenance. Paragraph 7.1 of the lease provided:

7.1 Landlord shall maintain, take good care of and repair the Common Facilities, the exterior walls, roof, foundation, load bearing members, trusses, joists and those parts of the Building systems located outside of the Premises to the extent they service the Premises, except for repairs, replacements, or maintenance occasioned by the negligence or intentional act of Tenant or Tenant's Responsible Parties. Any repairs or maintenance occasioned by the negligence or intentional act of Tenant or Tenant's Responsible Parties shall be repaired at the sole cost and expense of Tenant.

Paragraph 7.4, on the other hand, provided in pertinent part:

7.4 Tenant shall throughout the Term take good care of the Premises, and those parts of the Building within the Premises which are not the Landlord's responsibility under Section 7.1 and, at Tenant's sole cost and expense, make all repairs and replacements thereto as and when needed to preserve all of the foregoing in Restoration Condition.

The lease also contained this limitation, in a separate paragraph.

8.1 Notwithstanding anything contained herein to the contrary, Tenant will not be required to make any structural changes to the Premises or any capital improvements thereto if such would be required of any user of the Premises, Landlord being responsible for any such structural changes or capital improvements.

After a period of discovery, TMC moved for summary judgment, contending that under the terms of its lease, Plastxworld was responsible for maintenance of items such as the stair treads. The trial court granted defendant's motion. It rejected plaintiff's contention that once the friction treads were glued in place to the treads of the stairway, they became part of the structure of the building and were thus encompassed within the landlord's scope of responsibility. Plaintiff then retained new counsel, who filed a motion for reconsideration. After the trial court denied that motion, plaintiff appealed.

In our judgment, this case fits within the principles we enunciated in McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 524 (App. Div. 1996). In that case, plaintiff's employer leased a 300,000 square-foot warehouse and surrounding land from defendant Port Authority of New York and New Jersey. Id. at 523. Plaintiff was injured when he fell and fractured his heel, allegedly due to the deteriorated condition of the loading dock. Id. at 524. We held that the defendant landlord, having rented the entirety of the premises to plaintiff's employer, was not liable. Id. at 522.

Plaintiff in this matter attempts to distinguish our holding in McBride on the basis of Paragraph 8.1 of the lease, which we have set forth earlier in this opinion. Under that paragraph, defendant retains responsibility for "structural changes or capital improvements." We consider the trial court entirely correct in having rejected plaintiff's contention that these friction stair treads became part of the structure when they were affixed to the stairs.

Similarly, we reject plaintiff's alternative argument, that these friction stair treads should be considered capital improvements and, thus, encompassed within the landlord's responsibility. In support of her position, plaintiff has cited N.J.A.C. 18:24-5.16(a)(6)(i), which defines a capital improvement as "an installation of tangible personal property which results in an increase of the capital value of the real property or a significant increase in the useful life of such property." She then points to N.J.A.C. 18:24-22.3(b), which provides that "installation of floor covering results in a capital improvement only where the floor covering is permanently affixed to a subfloor." She asserts that such friction stair treads serve to extend the useful life of the concrete steps and are permanently affixed to the steps. Thus, plaintiff concludes, these friction treads qualify as a capital improvement.

We are satisfied that plaintiff reads too much into these regulatory provisions. N.J.A.C. 18:24-1.1 to -31.9 are intended to set forth the parameters and procedures for imposition and collection of sales and use taxes. They have little, if any, applicability to the present controversy. We have recognized that "[a]lthough tax criteria may be instructive in determining what constitutes a capital improvement for tax purposes, they are not controlling" in another context. Tenants Ass'n v. Georgian Gardens, 249 N.J. Super. 475, 478 (App. Div. 1991).

In sum, we are satisfied that the trial court correctly concluded that seeing to the state of these friction stair treads constituted ordinary repair and maintenance and was the duty of defendant's tenant and plaintiff's employer, Plastxworld.

The order under review is affirmed.

 

(continued)

(continued)

6

A-1720-04T1

November 4, 2005

 


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