VIVIAN ACOSTA QUINTINAL v. LIEBENZELL MISSION OF USA

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5499-15T1

VIVIAN ACOSTA QUINTINAL,

        Plaintiff-Appellant,

v.

LIEBENZELL MISSION OF USA,

        Defendant/Third-Party
        Plaintiff-Respondent,

v.

CHURCH OF GOD OF BROOKLYN,

     Third-Party Defendant.
_______________________________

              Submitted October 23, 2017 - Decided November 9, 2017

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              3978-14.

              The Anthony Pope Law Firm, PC, attorneys for
              appellant (Annette Verdesco, on the brief).

              Harwood Lloyd, LLC, attorneys for respondent
              (Gregory J. Irwin, of counsel and on the
              brief).

PER CURIAM
       Plaintiff Vivian Acosta Quintinal appeals from a final

order denying reconsideration of summary judgment dismissing her

personal injury complaint against defendant Liebenzell Mission

of USA.    Because we agree defendant is immune from liability for

plaintiff's accident pursuant to 
N.J.S.A. 2A:53A-7, we affirm,

essentially for the reasons expressed by Judge D'Alessandro in

the statements of reasons accompanying his June 9, 2016 order

for summary judgment and July 27, 2016 order for

reconsideration.

       The facts essential to resolution of the motion are

undisputed.    Defendant Liebenzell Mission is a 501(c)3 tax

exempt, not-for-profit corporation, organized "to promote,

support and advance the cause of Christ and the Christian way of

life."    It operates a 150-acre retreat in Morris County, which

it makes available to churches and other non-profit groups for a

fee.   Plaintiff was attending a three-day conference at the

retreat center sponsored by Church of God of Brooklyn,1 and the

pastors of Nueva Arca, a church she attended.    She traveled to

the retreat center in a van provided by the pastors of Nueva



1
  Church of God of Brooklyn obtained summary judgment in the same
order as Liebenzell. Plaintiff has not appealed from that
aspect of the order and Church of God of Brooklyn is not a
participant in this appeal. Accordingly, "defendant" refers
only to Liebenzell.

                                 2                           A-5499-15T1
Arca.   Plaintiff paid $120 to attend the retreat, $6 of which

was allocated for costs of insurance.    While leaving a

"religious conference" at the center on Saturday, plaintiff

slipped on snow and ice on a ramp leading out of the building,

sustaining injury.

    Following discovery, Liebenzell moved for summary judgment

contending it is a charitable association engaged in the works

it was organized to advance, when plaintiff, a beneficiary of

those works, was injured, thus entitling it to immunity pursuant

to the Charitable Immunity Act, 
N.J.S.A. 2A:53A-7 to -13.1.

Plaintiff opposed the motion claiming defendant deviated from

its stated purpose by charging her a $6 fee for insurance, that

there was a "dispute as to what type and amounts of income that

Defendant receives in order to operate," and that plaintiff was

not a beneficiary because "Defendant was not promoting [its]

objectives as a religious retreat at the time of the injury."

    Judge D'Alessandro rejected those arguments in a

comprehensive thirty-one page opinion.   The judge concluded from

the evidence in the record that Liebenzell was organized

exclusively for religious and charitable purposes as defined in

the Charitable Immunity Act because those purposes represented

its "dominant motive."   See Parker v. St. Stephen's Urban Dev.

Corp., Inc., 
243 N.J. Super. 317, 325 (App. Div. 1990)

                                3                          A-5499-15T1
(explaining examination of the aims, origins and method of

operation of an "entity seeking to clothe itself in the veil of

charitable immunity" is necessary "to determine whether its

dominant motive is charity or some other form of enterprise").

    Noting "[a] qualifying organization does not lose its

statutory immunity merely because it charges money for its

services," Rupp v. Brookdale Baptist Church, 
242 N.J. Super.
 457, 465 (App. Div. 1990), the judge found nothing in the record

to contradict Liebenzell's assertion it charged the $6 fee "'to

encourage the churches to have their own insurance and to offset

the costs'" of Liebenzell's insurance.   The judge rejected

plaintiff's claim that she had raised sufficient questions as to

the source of Liebenzell's operating funds to defeat summary

judgment, finding plaintiff failed to evince any evidence "that

Liebenzell was a profit-making organization with any aim other

than a 'dominant motive' of charity by providing a place for

low-cost religious and personal reflection."   See Pomeroy v.

Little League Baseball, 
142 N.J. Super. 471, 473 (App. Div.

1976) (finding no genuine issue of material fact as to whether

the defendant had been organized for exclusively educational

purposes).

    Analyzing the question of whether plaintiff was a

beneficiary of the works of Liebenzell within the intendment of

                               4                            A-5499-15T
1 N.J.S.A. 2A:53A-7, the court applied the two-part test

enunciated in DeVries v. Habitat for Humanity, 
290 N.J. Super.
 479, 487-88 (App. Div. 1996), aff’d, 
147 N.J. 619 (1997):     "(1)

did the injury occur while the organization was engaged in its

charitable works, and (2) was the injured party a direct

recipient of those works."   Concluding there could be no genuine

dispute that plaintiff accepted the invitation of her church "to

attend the retreat, to use [Liebenzell's] facilities and to

attend services or conferences during the retreat," Judge

D'Alessandro found plaintiff was clearly a beneficiary of

Liebenzell's charitable works.

    Plaintiff moved for reconsideration, contending Liebenzell

did not establish it was a charitable organization because by

charging plaintiff the $6 fee to offset insurance costs,

Liebenzell "deviated from [its] stated purpose and has received

a profit, non-related to its charitable works," and that

plaintiff had raised a genuine issue of material fact regarding

the types and amount of income Liebenzell received in order to

operate, "especially from the recreational activities provided

on its premises."   Plaintiff also claimed Liebenzell could not

demonstrate she was a beneficiary of its works at the time of

the accident because Liebenzell "was not promoting [its]

objectives at the time . . . and she paid extra-monies for

                                 5                          A-5499-15T1
liability insurance, . . . which clearly is not related to

retreat or religious objectives."

    The judge heard argument on the motion, providing plaintiff

the opportunity to further argue the points raised in her brief

on reconsideration.    The judge thereafter issued a nineteen-page

opinion addressing each point.     The judge acknowledged

plaintiff's arguments, but found she had failed to come forward

with evidence in the record to support her claims.

    Plaintiff appeals, reprising the arguments she made on the

motions.    We, of course, review summary judgment using the same

standard that governs the trial court.     Murray v. Plainfield

Rescue Squad, 
210 N.J. 581, 584 (2012).     Thus, we consider

"whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law."     Liberty Surplus

Ins. Corp., Inc. v. Nowell Amoroso, P.A., 
189 N.J. 436, 445-46

(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 
142 N.J.
 520, 536 (1995)).     Applying that standard here after having

considered plaintiff's arguments and having reviewed the entire

record, we agree with the trial judge that plaintiff failed to

set forth any evidence that could have sustained a different

decision.    Accordingly, we affirm for the reasons set forth in



                                  6                         A-5499-15T1
Judge D'Alessandro's two thorough and thoughtful written

opinions.

    Affirmed.




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