On appeal from the Superior Court, Law Division, Mercer County.
Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiffs, Catherine Milacci and Louis Milacci, husband and wife, appeal the entry of summary judgment in favor of defendants, Mato Realty Company, Inc., B. Anderson Custodial Services, and State of New Jersey.
Plaintiffs alleged that on September 22, 1982 at approximately 3 p.m. Catherine Milacci fell on an "accumulation of sand and dirt" on a floor in the State unemployment office as she "was going to step down onto the first step" to exit the building owned by defendant, Mato Realty Company, Inc., and leased by the defendant, State of New Jersey. The State had contracted with defendant, B. Anderson Custodial Services, for janitorial services at the premises commencing at 5 p.m. daily.
Summary judgment was granted in favor of the State as to the per quod claim of Louis Milacci on the grounds that the notice of claim filed with the State pursuant to the Tort Claims Act named only Catherine Milacci as a claimant and not her husband. Summary judgments were granted on Catherine's claim against the State of New Jersey for lack of proof as to how long the sand and dirt were present and in favor of B.
Anderson Custodial Services against both plaintiffs because of no showing that the condition existed the evening previous to Catherine's fall when the janitorial service was last on the premises. Plaintiffs' claims were dismissed as to Mato Realty Company, Inc. on the grounds that the premises had been leased to the State who had exclusive control.
The criteria governing summary judgment motions are contained in R. 4:46-2:
The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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.
The motion judge must determine if there is a "genuine issue as to material fact, but not decide the issue if [the court] finds it to exist." Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73 (1954). "[T]he absence of undisputed material facts must appear 'palpably.' All inferences of doubt are drawn against the movant in favor of the opponent of the motion." Id. at 74-75. However, an opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers. Id. at 75. "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." United States Pipe & Foundry Co. v. American Arbitration Association, 67 N.J. Super. 384, 399-400 (App.Div.1961). If the court finds that no issue of material fact does exist, it then must decide if the movant is entitled to judgment as a matter of law. R. 4:46-2; Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 167 (1985).
On appellate review this court is required to determine whether the trial court's order of summary judgment was proper. If any issues of material fact exist or if, under the applicable substantive law, drawing all inferences of doubt against the movant and in favor of the opponent of the motion,
the movant is not entitled to judgment as a matter of law, this court must reverse the ...