LEGINA AIME v. MICHAEL LOBRACE, 355 UNION AVENUE, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3168-04T53168-04T5

LEGINA AIME,

Plaintiff-Appellant,

v.

MICHAEL LOBRACE, 355 UNION AVENUE, LLC,

Defendants/Third-Party Plaintiffs-Respondents,

v.

ANTHONY FONSECA and MARK ANTHONY ASSOCIATES,

Third-Party Defendants-Respondents.

___________________________________________________________

 

Submitted October 12, 2005 - Decided

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3981-03.

Freeman & Bass, attorneys for appellant Legina Aime (Randall Bass, on the brief).

Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys third-party defendant respondent Anthony Fonseca (Meredith Kaplan Stoma, of counsel; Jeffrey S. Leonard, on the brief).

Sachs Maitlin, attorneys for third-party defendant respondent Mark Anthony Associates, have not filed a brief.

PER CURIAM

Plaintiff Legina Aime, appeals from a January 21, 2005 order of the Law Division granting summary judgment (a) in favor of defendant/third-party plaintiff Michael LoBrace and his company, 355 Union Avenue, LLC, dismissing plaintiff's personal injury complaint and (b) in favor of all third-party defendants dismissing the third-party complaint. Defendants/third-party plaintiffs are 355 Union Avenue, LLC, the owner of an unoccupied single family residence located at 355 Union Avenue in the City of Elizabeth, and Michael Lobrace, a principal of the owner. When sued by plaintiff, defendants/third-party plaintiffs joined their insurers as parties in a third-party complaint. They joined third-party defendant Anthony Fonseca, the producer who was to have placed the insurance policy on their behalf, and third-party defendant Mark Anthony Associates, the agency through which Fonseca was to have placed the insurance policy. We affirm the order granting summary judgment.

Accepting the facts in the light most favorable to plaintiff, the record discloses that on or about June 3, 2002, plaintiff fell on a sidewalk abutting the premises at 355 Union Avenue, Elizabeth, New Jersey, and sustained injuries as a proximate result of the dilapidated condition of the sidewalk. The property located at 355 Union Avenue was an unoccupied single family, residential property. At the time of plaintiff's accident, as well as the entire time defendants/third-party plaintiffs owned the property, no one occupied or resided at the property. The owner of the premises at the time of the alleged incident was a limited liability corporation, 355 Union Avenue, LLC. On July 16, 2003, slightly more than one year after the date of plaintiff's alleged injury, 355 Union Avenue, LLC sold the property to Triple M Investment Company for $200,000, having paid $150,000 as the purchase price on December 27, 2001. Because defendant is an artificial entity, rather than a natural person, and because plaintiff assumes defendant made a profit on the sale, plaintiff contends defendant owed a duty to pedestrians to maintain the sidewalk in good condition.

In general, under our law, owners of residential property are not liable for "injuries to pedestrians caused by the evident and dangerous deterioration of sidewalks" abutting their property. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 153 (1981). As the Court acknowledged in Norris v. Borough of Leonia, 160 N.J. 427 (1999), "The [Stewart] Court . . . imposed a duty to maintain a sidewalk in a reasonably good condition on owners of commercial property, while retaining the common law sidewalk immunity for residential landowners." Norris, supra, 160 N.J. at 434. "[C]ommercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart, supra, at 157.

Commercial landowners have such added responsibility because of the utility the sidewalks provide to their business endeavors by affording their customers easy access to their location. The key to a determination that a property is commercial is the property's "capacity to generate income." Abraham v. Gupta, 281 N.J. Super. 81, 85 (App. Div. 1995) (holding that a vacant lot zoned for commercial use and not used in conjunction with a business enterprise is not to be considered commercial property for sidewalk liability purposes). See also Briglia v. Mondrian Mortgage Corp., 304 N.J. Super. 77, 79 (App. Div.) certif. denied, 152 N.J. 13 (1997) (holding that "a mortgagee in possession of vacant residential property is not a commercial landowner for purposes of imposing sidewalk liability").

In granting summary judgment against plaintiff in this case, Judge Malone reasoned:

[T]he fact that a commercial entity owns the property does not change its residential nature . . . . Here the only suggestion that the property is commercial is the fact that it is a business entity that owns the property. In fact, in all other documentation it indicates it is residential. It is not occupied by anyone, therefore it is not used in a commercial sense since it's not used at all . . . . The owner of this residential property is not responsible for the repair of the sidewalk. It is therefore not negligent as it relates to this accident.

We affirm the judgment of the Law Division substantially for the reasons expressed by Judge Malone in his oral opinion.

Affirmed.

 

The motion for summary judgment was initially filed on behalf of third-party defendant Anthony Fonseca. Thereafter, all third-party defendants and defendants/third-party plaintiffs filed cross-motions seeking to dismiss claims asserted against them, respectively. All the motions were consolidated and decided by Judge John F. Malone on January 21, 2005. No appeal has been taken from the dismissal of the third-party complaint.

(continued)

(continued)

5

A-3168-04T5

December 16, 2005