CINTHIA TORRES v. EMAD F. MASOUD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CINTHIA TORRES,

Plaintiff-Appellant,

v.

EMAD F. MASOUD, ALFIE MELEIKA,

ALPHIA CONSTRUCTION, and ALFIE

CONSTRUCTION,

Defendants,

and

MICHAEL PERDIKOS and HELEN

PERDIKOS,

Defendants-Respondents.

_______________________________________

September 22, 2014

Argued September 9, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1841-11/J-135668-12.

A. John Blake argued the cause for appellant (Marciano & Topazio, attorneys; Andrew R. Topazio, on the briefs).

Edward L. Thornton argued the cause for respondents (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel; James H. Foxen, on the brief).

PER CURIAM

Plaintiff Cinthia Torres appeals from an order entered by the Law Division on September 27, 2013, granting summary judgment in favor of defendants Helen and Michael Perdikos. We affirm.

This appeal arises from the following facts. Helen Perdikos and her husband Michael Perdikos are the owners of an apartment building in Bayonne. Plaintiff was a tenant in the building. She resided there with her husband and daughter. Mrs. Perdikos hired Alfie Meleika from time to time to do certain small construction or maintenance jobs in the apartment building. She considered him a handyman.

At her deposition, plaintiff testified that, around 10:00 a.m. on April 8, 2009, Meleika knocked on the door to her apartment. Meleika was accompanied by his workers. He said they were there to do some work in the apartment. Plaintiff testified that the landlord never informed her that the workmen would be coming. Plaintiff let the workers into the apartment. She took her daughter to stay with her brother and thereafter returned to the apartment.

Plaintiff said Meleika was in the apartment with two workers. They were talking and working. Plaintiff told Meleika she was going to be in the bedroom, but emerged at one point to provide drinks for the workers. Plaintiff testified that she was "feeling uncomfortable" because the men were looking at her and speaking to each other in another language. One of the workers was Emad F. Masoud. According to plaintiff, Masoud said something offensive and she told him to stop "being fresh" because she was a married woman.

Plaintiff went to her bedroom and closed the door. Later on, around 2:00 p.m., Meleika told her that they were ready to work in the living room. He asked her to move a toy chest so they could work on the floor. She moved the chest. Apparently, Meleika left the apartment and his two workers remained. Masoud had been working in the kitchen. Plaintiff said Masoud exited the kitchen and tried to kiss her. She turned away. He again attempted to kiss her and she again turned away.

Plaintiff said, "What are you doing?" and Masoud "tried it again." Plaintiff stated that she "got really ticked off." She turned around and started to walk to her bedroom. She claimed that Masoud then grabbed her from behind, put his hands on her shoulders, grabbed her and rubbed his private parts against her buttocks. The other worker was in the bathroom at the time.

Plaintiff went to her bedroom and spoke with her mother on the phone. Her mother told her to report the incident to the police. When she exited the bedroom, the workers were gone. Plaintiff's husband returned and she told him what had happened. Plaintiff called the police and two police officers were sent to her apartment. The police report indicates that Masoud denied plaintiff's allegations. Plaintiff filed a complaint charging Masoud with criminal sexual contact. The record does not indicate how the complaint was resolved.

On April 1, 2011, plaintiff filed a complaint in the Law Division, naming Masoud, Helen and Michael Perdikos, Meleika and Meleika's construction company as defendants.1 Plaintiff alleged that Masoud assaulted and made sexual contact with her, without her consent. She alleged that Meleika and his company were responsible for Masoud's actions. She claimed these defendants were negligent in their hiring and supervision of Masoud.

Plaintiff also asserted claims of negligent hiring and supervision against Mr. and Mrs. Perdikos. She claimed they were responsible for the negligence of the contractor they hired. She further claimed that Mr. and Mrs. Perdikos were negligent in failing to exercise reasonable care in providing safe premises to her, and for failing to deliver safe and habitable premises to her in violation of their obligations under the lease.

Masoud and Meleika filed answers to the complaint, and plaintiff thereafter resolved her claims against these defendants. Mr. and Mrs. Perdikos did not file an answer and a default judgment was later entered against them. However, the court granted the Perdikoses' motion to set aside the default judgment. They then filed an answer denying liability, and asserted cross claims against Masoud, Meleika and Alphie Construction.

In August 2013, Mr. and Mrs. Perdikos filed a motion for summary judgment, which plaintiff opposed. The trial court considered the motion on September 27, 2013. After hearing oral argument from counsel, the court placed its decision on the record. The court determined that there was no genuine issue of material fact and Mr. and Mrs. Perdikos were entitled to judgment as a matter of law on the claims asserted against them.

The court stated that Mr. and Mrs. Perdikos were not liable for Masoud's alleged wrongful actions because he was employed by Meleika, who was an independent contractor. Moreover, there was nothing in Masoud's background that would have revealed he was not a suitable employee. In addition, Mr. and Mrs. Perdikos had no knowledge that Meleika or his employees were incompetent. The court observed that landlords do not have a duty to supervise the contractors they hire to do work in the leased premises. Moreover, there was nothing in Masoud's background which suggested a need for such supervision.

The court accordingly entered an order dated September 27, 2013, granting the Perdikoes' motion for summary judgment. This appeal followed.

Plaintiff argues that summary judgment should not have been granted because there are genuine issues of material fact as to whether Mr. and Mrs. Perdikos: (1) are responsible for the negligent hiring or supervision of their employees; (2) exercised reasonable care in providing safe premises for plaintiff; and (3) failed to deliver safe and habitable premises to plaintiff, as required by the lease agreement. We are convinced that these arguments are without merit.

Summary judgment may be granted when the evidence before the trial court on the motion, viewed in a light most favorable to the non-moving party, indicates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing an order granting or denying summary judgment, we employ the same standard that the trial court applies when considering a summary judgment motion. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

Here, the record shows that Meleika was not employed by Mr. and Mrs. Perdikos. Rather, as the trial court determined, Meleika was retained by them to perform work as an independent contractor.

In determining whether a person is an employee or independent contractor, the court considers (1) the extent to which the master controls the details of the work; (2) whether the individual "'is engaged in a distinct occupation or business'"; (3) the skill required for the work; (4) whether the person engaging the worker provides his or her own "'instrumentalities, tools and the place of work'"; (5) "'the length of time for which the person is employed'"; (6) "'the method of payment'" by time or by job; (7) whether the work is "'part of the regular business of the employer'"; and (8) whether "'the parties believe they are creating'" a master-servant relationship. Mavrikidis v. Petullo, 153 N.J. 117, 132 (1998) (quoting Restatement (Second) of Agency, 220(2) (1958)).

The record shows that Mr. and Mrs. Perdikos hired Meleika to do construction or maintenance work in their building. There is no evidence that they controlled the manner in which Meleika performed his work. Meleika was engaged in a construction business, not the ownership of a multi-family rental property. His work required some skill, and he provided his own tools for the work. Mrs. Perdikos testified that Meleika was only hired for small jobs, and he had done work for the Perdikoses over a five or six-year period prior to the April 2009 incident. In addition, Meleika was paid by the job. He was not paid a salary or paid on an hourly basis. Thus, the record established that, in performing the work in plaintiff's apartment, Meleika was an independent contractor, and not an employee of Mr. and Mrs. Perdikos.

Because Meleika was acting as an independent contractor for the Perdikoses, they cannot be liable for the negligent or wrongful acts of Meleika's employees except "'(a) where the landowner [or principal] retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor; or (c) where . . . the activity contracted for constitutes a nuisance per se.'" Id. at 133 (alteration in original) (quoting Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959)).

These exceptions do not apply in this case because Mr. and Mrs. Perdikos did not retain control over the manner and means by which Meleika performed the work. Furthermore, there is no evidence that Meleika was not competent to perform the work for which he was engaged. In addition, the work involved did not constitute a nuisance per se. Therefore, the Perdikoses cannot be liable for Masoud's alleged wrongful actions.

In support of her argument, plaintiff relies upon Di Cosala v. Kay, 91 N.J. 159 (1982). In that case, the Court recognized the tort of negligently hiring "an incompetent, unfit[,] or dangerous employee." Id. at 174. However, as we have explained, Masoud was hired by Meleika, not by Mr. and Mrs. Perdikos. Even if the Perdikoses had employed Masoud, they would only be liable if (1) he acted outside of the scope of his employment; (2) they knew or had reason to know of his particular unfitness; and (3) they could reasonably foresee that his unfitness presented "a risk of harm to othe[r]s." Id. at 173. In this case, there is no evidence that the Perdikoses knew or had reason to know that Masoud was likely to engage in the conduct alleged or that he created a risk of harm to others.

Plaintiff's other claims against the Perdikoses fail as a matter of law. Plaintiff alleges that these defendants failed to exercise reasonable care to guard against a foreseeable danger that she would be sexually assaulted by one of the men sent to perform work in her apartment. However, plaintiff did not present any evidence to show that Masoud presented a foreseeable risk to tenants in the Perdikoses' building.

It is undisputed that Masoud had no record of any prior criminal offense. Meleika testified at his deposition that Masoud never displayed any type of criminal or deviant behavior in the past, and he had no indication that Masoud was likely to commit a criminal act, as alleged by plaintiff. Thus, there was insufficient evidence to support a claim that Mr. and Mrs. Perdikos failed to provide plaintiff with reasonably safe premises, or failed to exercise reasonable care to protect her against a foreseeable danger arising from her use of the premises.

Plaintiff's contention that Mr. and Mrs. Perdikos had a duty to investigate Meleika's employees before allowing them to work in the building is without sufficient merit to warrant comment. R. 2:11-3(e)(1)(E). As we have explained, however, even if such an investigation had been undertaken, the record demonstrates that it would not have produced any information indicating that Masoud presented a risk of harm to the tenants.

Affirmed.

1 In the complaint, the company is referred to as Alphia Construction and Alfie Construction.