JESUS HERNANDEZ v. JOSEFINA HERNANDEZ

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5983-05T25983-05T2

JESUS HERNANDEZ,

Plaintiff,

v.

JOSEFINA HERNANDEZ,

Defendant-Appellant,

and

JUSTIN OGBONNA, AUSTIN EGWUONWU,

FRANK ACHEBE, EZI ENYI ASSOCIATES,

Defendants-Respondents.

__________________________________

 

Submitted January 26, 2009 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1918-05.

Josefina Hernandez, appellant pro se.

Joel C. Seltzer, attorney for respondents.

PER CURIAM

Plaintiff Jesus Hernandez (Jesus) sued defendants Josefina Hernandez, Justin Ogbonna, Austin Egwuonwu, Frank Achebe, and Ezi Enyi Associates, for injuries he suffered when a concrete porch slab at 41 Rector Street, Newark, collapsed beneath him on April 13, 2003. The premises had been purchased by defendant Josefina Hernandez (Josefina), Jesus's sister, from the remaining named defendants on December 20, 2002. The accident occurred as Jesus was assisting his sister in clearing the backyard to the premises.

A motion for summary judgment was filed by defendants Ogbonna, Egwuonwu, Achebe, and Ezi Enyi Associates (the sellers), seeking dismissal of the complaint and all cross-claims. The motion was granted on June 23, 2006. Josefina objects to the award of summary judgment. For the reasons that follow, we affirm.

Summary judgment is granted where the pleadings, depositions, and answers to interrogatories establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). In reviewing the grant of summary judgment, we employ the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We view the facts in the light most favorable to the non-moving party. Piccone v. Stiles, 329 N.J. Super. 191, 194 (App. Div. 2000). Minor factual disputes do not defeat a motion for summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995). Summary judgment is appropriate when the evidentiary materials, giving all favorable inferences to the non-moving party, are insufficient to establish a genuine dispute of material fact that would permit a rational trier of fact to resolve the dispute in the non-moving party's favor, entitling that party to judgment. Id. at 540.

Briefly, it is undisputed that the sellers sold the property in question to Josefina on December 20, 2002. Josefina entered into the agreement to purchase the subject real estate on July 10, 2002. The contract provided that the premises were being sold "as is." The sellers were obligated by the agreement to be in compliance with all zoning laws and to obtain, if legally required, a certificate of occupancy (CO) prior to closing. The contract also provided that if the sellers did not correct any zoning or other violations, the buyer had the right to cancel the contract. Apparently, no CO was provided at settlement. Josefina accepted title and continued to pursue her request for a CO from the sellers after closing.

The sellers' failure to produce a CO constitutes Josefina's principal argument on appeal. She claims that the sellers' failure to provide the CO establishes willful conduct designed to hide the fact that the slab in question was defective and posed a danger. Unfortunately, there is no factual nexus between the seller's failure to obtain a CO and the defective slab. Furthermore, Josefina accepted title at closing and had owned the property for nearly four months when the accident occurred. There was ample time in which Josefina could have discovered this defect, which Jesus's expert characterized as clearly visible to anyone who looked at the property. Hence, Josefina's arguments do not give rise to any genuine dispute of material fact.

On November 6, 2003, the sellers advanced Josefina $4,354.44 on account of the collapse of the slab. This payment does not make the sellers liable in the first instance; nor does it mean that they assumed liability for repairs or for any injuries that Jesus may have suffered. The payment does not give rise to a genuine issue of material fact either.

We affirm for the reasons stated in the motion judge's oral decision of June 23, 2006. Josefina had ample time between the execution of the contract and the closing to inspect the property. The dangerous condition, according to Jesus's expert report, was readily foreseeable and preventable. Generally, once title passes to the buyer, the seller no longer has a duty to repair. See Cogliati v. Ecco High Frequency Corp., 181 N.J. Super. 579, 585 (App. Div. 1981), aff'd, 92 N.J. 402 (1983). Josefina's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

The record does not disclose the disposition of Josefina's complaint against certain third-party defendants.

(continued)

(continued)

5

A-5983-05T2

June 1, 2009