EDWARDO VEGA v. SURESH MUTHUPANDI

NOT FOR PUBLICATION WITHOUT THE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-4615-15T4
EDWARDO VEGA,

        Plaintiff-Appellant,

v.

SURESH MUTHUPANDI,

        Defendant/Third-Party
        Plaintiff-Respondent,

v.

CASTLEPOINT INSURANCE COMPANY
and COE GROUP, INC.,

     Third-Party
     Defendants-Respondents.
________________________________

              Argued April 16, 2018 – Decided May 10, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-
              1699-14.

              Christopher F. Struben argued the cause for
              appellant (Percario, Nitti & Struben,
              attorneys; Christopher F. Struben, on the
              brief).

              James P. McBarron argued the cause for
              respondent Coe Group, Inc. (Hardin, Kundla,
          McKeon & Poletto, PA, attorneys; John R.
          Scott, of counsel and on the brief; Cynthia
          Lee, on the brief).

PER CURIAM

     In this sidewalk slip-and-fall matter, plaintiff Edwardo

Vega appeals from the April 1, 2016 Law Division order granting

third-party defendant Coe Group, Inc., (Coe) summary judgment

dismissal of plaintiff's complaint.   Plaintiff also appeals from

the June 17, 2016 order denying his motion for reconsideration

of the April 1, 2016 order and dismissing the complaint against

defendant Suresh Muthupandi.1   We affirm.

                                I

     We glean the following from the summary judgment record

provided to us.   In December 2013, Muthupandi purchased a vacant

two-family house.   Defendant wanted to rent out one of the

dwellings in the building and, because he was having marital

problems with and wanted to separate from his wife, to move into

the other dwelling.   In addition, Fannie Mae, the mortgagee from

which he obtained a mortgage to purchase the property, required

and in fact defendant signed a certification stating he would

move into the property within sixty days of purchase.   In

1
   Plaintiff's notice of appeal states third-party defendant
Castlepoint Insurance Company was granted summary judgment
dismissal before the orders under review were entered.
Castlepoint Insurance Company did not participate in this
appeal.
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preparation for moving into the property, in December 2013

defendant secured a driver's license that reflected the address

of the two-family house as his residence.

    Before he could move in, in January 2014, the roof on the

building collapsed, causing extensive damage and precluding his

ability to move into one of the units and rent out the other.

Defendant did not bother to advertise or show the rental unit to

any prospective tenant.   In February 2014, plaintiff slipped and

fell on snow that had accumulated on the sidewalk abutting the

property, and sustained injuries.   No one moved into the

building until February 2015.   In the interim, defendant

reconciled with his wife and never moved into either unit in the

two-family house.

    Plaintiff filed a complaint against defendant alleging he

had been negligent for failing to remove the snow from the

sidewalk that had accumulated in front of the property at the

time of plaintiff's fall.   Defendant in turn filed a third-party

complaint against Coe and Castlepoint Insurance Company.

Defendant alleged either Coe, an insurance agency, failed to

secure or Castlepoint Insurance Company improperly declined to

provide coverage under a homeowners insurance policy defendant

contended he had acquired before plaintiff's fall.


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    After discovery concluded, Coe obtained summary judgment

dismissal of plaintiff's complaint.   Plaintiff's motion for

reconsideration was not only unavailing, but also plaintiff's

complaint was dismissed as to defendant.   The trial court found

that at the time of plaintiff's fall, the two-family home was

not a commercial but a residential property; therefore,

defendant was not liable for any injuries arising out of his

failure to remove snow and ice from the sidewalk.

                                II

    On appeal, plaintiff argues the court erred when it found

the two-family house was not a commercial property.   In support

of his argument, plaintiff maintains defendant did not actually

intend to move into the property just before plaintiff's fall

or, at the least, there is a question of fact over what his

intentions were.   Plaintiff argues that if defendant intended at

the time of the fall to rent out both units, the property was a

commercial one and defendant is liable for plaintiff's injuries.

Plaintiff also contends that, in the weeks preceding his fall,

the workers present at the property to fix the damage to the

roof and the interior of the house walked over the existing snow

on the sidewalk, causing the snow to "pack down" and create an

enhanced dangerous condition.


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    Rule 4:46-2(c) directs that summary judgment be granted "if

the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show

there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a

matter of law."   Essentially, the court must determine "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. v. Nowell Amoroso, PA, 
189 N.J. 436, 445-46 (2007)

(quoting Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520,

536 (1995)).

    We review a trial court's decision on summary judgment "de

novo, employing the same standard used by the trial court."

Tarabokia v. Structure Tone, 
429 N.J. Super. 103, 106 (App. Div.

2012) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 
307 N.J. Super. 162, 167 (App. Div. 1998)).   We give "no deference

to the trial court's conclusions on issues of law."   Depolink

Court Reporting & Litig. Servs. v. Rochman, 
430 N.J. Super. 325,

333 (App. Div. 2013).   We must also "view the evidence in the

light most favorable to the non-moving party and analyze whether

the moving party was entitled to judgment as a matter of law."


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Mem'l Props., LLC v. Zurich Am. Ins. Co., 
210 N.J. 512, 524

(2012) (citing Brill, 
142 N.J. at 523).

    Currently, owners of residential property are not liable to

those injured as a result of the failure to remove snow and ice

from an abutting public sidewalk.   See Brown v. St. Venantius

Sch., 
111 N.J. 325, 327 (1988).   Further, two-family homes in

which the owner occupies a unit are not deemed commercial

properties.   See Smith v. Young, 
300 N.J. Super. 82, 97 (App.

Div. 1997) (noting a two-family home, one unit of which was

owner-occupied and the other rented to a tenant, was

"unquestionably residential in use").

    Even if the subject property were deemed commercial,

defendant is not liable under the facts presented here.    In Gray

v. Caldwell Wood Prods., Inc., 
425 N.J. Super. 496 (App. Div.

2012), we examined whether the defendant, the owner of a vacant

commercial building, was liable to the plaintiff after she fell

on a snow-covered sidewalk abutting the defendant's property.

The defendant had moved for summary judgment and relied upon our

decision in Abraham v. Gupta, 
281 N.J. Super. 81 (App. Div.

1995) to support its argument it was not liable to the

plaintiff.

    In Abraham, we held the owner of a vacant commercial lot

was not liable for injuries the plaintiff sustained when he fell
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on snow that had accumulated on the sidewalk adjacent to the

defendant's property.     Drawing from Stewart v. 104 Wallace St.,

Inc., 
87 N.J. 146, 157 (1981), we determined that because the

lot was vacant and the defendant was not conducting any

commercial activity on such property, there was no need for the

defendant to provide safe access to such lot.      Further, we found

the defendant was not generating income to purchase liability

insurance coverage.     We noted:

         What we glean from Stewart and its progeny
         is an unexpressed, but nevertheless intended
         limitation to its rule [imposing liability
         for owners of commercial properties abutting
         public sidewalks]: . . . . It is the
         capacity to generate income which is the
         key. In part, liability is imposed because
         of the benefits the entrepreneur derives
         from providing a safe and convenient access
         for its patrons. Secondly, such an
         enterprise has the capacity to spread the
         risk of loss arising from injuries on
         abutting sidewalks, either through the
         purchase of commercial liability policies or
         "through higher charges for the commercial
         enterprise's goods and services." Mirza [v.
         Filmore Corp., 
92 N.J. 390, 397 (1983)].

         [Abraham, 
281 N.J. Super. at 85.]

    In Gray, the defendant argued it was not liable to the

plaintiff because its commercial building was vacant and no

business operations were being conducted at the property at the

time of the plaintiff's fall.       We distinguished Abraham and held

the defendant was liable.     We found the building the defendant
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owned in Gray had the capacity to generate income at the time of

the accident.   Specifically, the property could have been put to

use to produce income as a retail store but, instead, the

defendant chose to keep the building vacant and market the

building for sale.

    In addition, we observed the defendant "made the property

accessible to potential buyers thereby subjecting itself to the

duty to keep their property safe for their invitees.     Defendant

maintained property insurance, presumably to protect against

injuries to their invitees. . . .     Defendant is precisely the

type of commercial property owner upon whom it is appropriate to

impose liability."     Gray, 
425 N.J. Super. at 501.

    Here, by the time of plaintiff's fall, the roof had

collapsed into the building.     The building was not habitable.

There was no use to which the building could have been put to

generate income.     Defendant was not even showing the property to

prospective tenants.    Defendant was not and could not have

conducted the business of renting out the property.    Therefore,

at the time of plaintiff's fall, defendant's property was not a

commercial one.

    We reject plaintiff's remaining arguments, none of which

warrants discussion in a written opinion.     R. 2:11-3(e)(1)(E).

    Affirmed.
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