NEVILLE RODRIGUEZ v. JOHN T. TAMASIK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0049-06T20049-06T2

NEVILLE RODRIGUEZ,

Plaintiff-Appellant,

v.

JOHN T. TAMASIK,

Defendant-Respondent,

and

TOWNSHIP OF PISCATAWAY, COUNTY OF

MIDDLESEX, and STATE OF NEW JERSEY,

Defendants.

____________________________________

 

Submitted April 23, 2007 - Decided May 4, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-6025-03.

Ray Roche & Associates, attorneys for appellant (Daniel G. Larkins, of counsel; Paul M. McCormick, on the brief).

Leary, Bride, Tinker & Moran, attorneys for respondent (David J. Dering, of counsel and on the brief).

PER CURIAM

Plaintiff, Neville Rodriguez, tripped and fell on a public sidewalk abutting defendant, John Tamasik's residence at 402
Washington Avenue in Piscataway. Plaintiff instituted a personal injury suit against defendant Tamasik and the Township of Piscataway, County of Middlesex, and State of New Jersey. Defendant moved for summary judgment. Plaintiff countered with a cross-motion to extend discovery for the limited purpose of taking defendant's deposition. Noting that plaintiff "had ample opportunity to . . . depose [defendant] during the discovery period," the judge denied plaintiff's cross motion. The motion judge granted defendant's motion and dismissed plaintiff's complaint. He relied on Liptak v. Frank, 206 N.J. Super. 336, 338-39 (App. Div. 1985), certif. denied, 103 N.J. 471 (1986), in which we recounted the decision in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 159-60 (1981), where the Court declined to overrule the rule of non-liability of abutting residential property owners for maintenance of public sidewalks. Plaintiff appealed following denial of his motion for reconsideration. We now affirm essentially for the reasons set forth by the motion judge in his decision rendered from the bench on June 9, 2006.

We restate the relevant facts, giving plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's fall occurred on August 16, 2001, at approximately 8:00 p.m. while he was walking home from shopping at Krauszer's food store. In answers to interrogatories, plaintiff stated, "I slipped and fell on the sidewalk . . . due to sidewalk covered with leaves and uneven pavement." In deposition testimony, plaintiff claimed, "I think I tripped over a crack on the sidewalk or something. I didn't see quite well what it was. Everything -- there was a lot of debris on the sidewalk, a lot of leaves and stuff so I couldn't see exactly what I tripped over. There were [tree branches], there were pieces of wire and old leaves dried up." Plaintiff further testified that the sidewalk adjacent to defendant's residence had "approximately a length of four to five feet of cracks," but he "couldn't see them very good because they were covered with debris and leaves." He described the wire as "[c]ommon wire."

Defendant's answers to interrogatories denied "knowledge of the conditions, artificial or natural, alleged by [plaintiff] to have caused or resulted in the accident or occurrence." Defendant was never deposed. In his counterstatement of facts in opposition to defendant's motion for summary judgment, plaintiff relied on his deposition testimony. He also asserted, "[f]rom the fact that wire, leaves, and branches were strewn on the sidewalk in front of defendant's property, an inference of negligence on defendant's part should be drawn."

On appeal, plaintiff essentially argues that the presence of common wire, leaves, branches, and other debris on the sidewalk constituted a continuing nuisance for which defendant can be held liable; the ruling in Yanhko immunizing residential property owners should be overruled; and the decision in Stewart, which created liability for commercial landowners should be extended to residential owners because "virtually all abutting landowners . . . have insurance" and there was a question of fact presented as to whether defendant participated in the creation or continuation of a nuisance. Plaintiff also contends that the denial of his motion to extend discovery was erroneous and a mistaken use of discretion, as was the denial of his motion for reconsideration.

R. 4:24-1(c) provides in pertinent part "[t]he court may, for good cause shown, enter an order extending discovery for a stated period, and specifying the date by which discovery shall be completed. . . . Absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed." Generally, in order to demonstrate "exceptional circumstances" sufficient to extend discovery, there "'must be some showing that the circumstances presented were clearly beyond the control of the attorney and the litigant seeking an extension of time.'" Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473 (App. Div.) (quoting Zadigan v. Cole, 369 N.J. Super. 123, 132 n.8 (Law Div. 2004)), rev'd on other grounds, 185 N.J. 290 (2005). "Our standard of review is limited to a determination of whether the trial court mistakenly exercised its discretion in denying [plaintiff's] motion for an extension of the discovery period. . . ." Id. at 471. After a matter is scheduled for arbitration or trial, attorneys seeking an extension of discovery are required to establish that they made "'effective use of the time permitted under the rules.'" Id. at 473 (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)).

Defendant obtained an extension of discovery on December 2, 2005, extending the period to April 15, 2006. Plaintiff's deposition took place within the extended discovery period. Mandatory non-binding arbitration, R. 4:21A-1(a), took place on June 6, 2006. The record is bare of any explanation by plaintiff as to why he did not seek to depose defendant within the discovery period as initially extended or a showing that there were circumstances, beyond his control, that prevented him from doing so. Rather, the record establishes that plaintiff had an ample opportunity to schedule defendant's deposition. Plaintiff never sought to cross-notice defendant's deposition despite receiving defendant's notice to take plaintiff's deposition. Moreover, plaintiff had several additional opportunities to hold defendant's deposition on the same date as plaintiff's because plaintiff's deposition was scheduled and re-scheduled multiple times before it was actually taken. To be sure, the most efficient use of time would have been to have both parties deposed at the same time and place. The judge correctly applied the Rules of Court in denying plaintiff's motion to extend discovery. Contrary to plaintiff's contentions, the judge did not misapply his discretion in denying plaintiff's motions to extend discovery or reconsider the grant of summary judgment to permit him to belatedly take defendant's deposition.

"'An abutting owner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in title participated in the creation or continuance of the nuisance.'" Yanhko, supra, 70 N.J. at 531 (quoting Murray v. Michalak, 114 N.J. Super. 417, 418 (App. Div. 1970), aff'd o.b., 58 N.J. 220 (1971)). In 1981, Stewart, supra, 87 N.J. 157, carved out an exception to the Yanhko non-liability rule by extending liability to commercial property owners for injuries resulting from failing to maintain sidewalks from deterioration. Since the decision in Stewart, Yanhko, as it applies to abutting residential landowners, has not been overruled by the Supreme Court. See Norris v. Borough of Leonia, 160 N.J. 427, 434 (1999); Brown v. St. Venantius Sch., 111 N.J. 325, 327 (1988). "'[A]s an intermediate appellate court, [we] are not free to deviate from . . . the Supreme Court's presently articulated view,' immunizing abutting residential landowners from liability." Lodato v. Evesham Twp., 388 N.J. Super. 501, 507 (App. Div. 2006) (quoting Liptak, supra, 206 N.J. Super. at 338-39).

In a summary judgment motion, the court must grant the non-moving party all favorable inferences from the competent evidence presented. Brill, supra, 142 N.J. at 540. We do not pass upon credibility as that is reserved for the trier of fact. However, as the Brill Court re-emphasized, it is within our province "'to determine whether there is a genuine issue for trial.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). That the trier of fact makes determinations as to credibility "does not require a court to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986)), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993). Plaintiff has done no more than that.

Here, there is a complete lack of any evidence establishing that the debris plaintiff alleges existed on the sidewalk was caused by a "wrongful act" on the part of defendant. See, e.g., Saco v. Hall, 1 N.J. 377, 383 (1949) (installation of drains, leaders, and sewers to carry water from landowner's roof causing the breaking of the sidewalk from melting snow); Wirth v. Peters, 36 N.J. Super. 172, 176-77 (App. Div. 1955) (cracking of the sidewalk worsened by the property owner's continued parking and driving of trucks over it for a period of years).

The judge appropriately found that plaintiff's proofs were devoid of any showing that defendant or his predecessor in title participated in the creation or continuance of a nuisance. Although plaintiff suggests that he may have fallen as a result of debris (leaves, cracks, or wire) left on the sidewalk, there is nothing to suggest that the condition was attributable to defendant rather than to use by the general public or normal wear and tear. Nor is there evidence that defendant had notice of the debris on the sidewalk. There is only speculation, on the part of plaintiff, that defendant's actions caused him to fall. Plaintiff's use of the word "think" when asked what caused him to fall only adds to the speculative nature of his claim. His inability to describe what actually caused him to fall, other than perhaps an uneven or cracked sidewalk, brings the case squarely within the non-liability parameters of Yanhko. Contrary to plaintiff's contention there was no "'genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Anderson, supra, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212).

 
Affirmed.

No answer was filed on behalf of the Township, County, or State and, in his Appellate Division Civil Case Information Statement, plaintiff asserts that there is no case pending arising out of the same controversy. We, therefore, consider Tamasik as the only defendant and the order dismissing plaintiff's complaint against Tamasik as final. Plaintiff is thus precluded from asserting any further claims against the Township, County, or State.

Rodriguez initially referred to the tree branches as "hangers" because "[i]n Puerto Rico branches are called hangers."

(continued)

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A-0049-06T2

May 4, 2007