On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Shebell and Gaynor. The opinion of the court was delivered by Shebell, J.A.D.
[225 NJSuper Page 232] Defendants J. Edward Clouse and Clouse Trucking, Inc. appeal the denial of summary judgment dismissing the third count of plaintiff's Third Amended Complaint which alleged that defendants "through their actions in acting as co-signers of the aforementioned lease, negligently enabled defendant Craig Schilling to obtain the use of a motor vehicle," that they "were negligent in that they either knew or should have known that Craig Schilling was an individual who had repeatedly improperly operated a motor vehicle" and that they "acted with gross, wanton and reckless disregard of the safety of the general public at large in enabling defendant Craig Schilling to obtain the use of a motor vehicle, an inherently dangerous instrumentality, without investigating Craig Schilling's driving record and/or history." Plaintiff Anna W. Baran seeks compensatory and punitive damages against defendants for injuries arising out of a collision between a vehicle which she was operating and a vehicle which defendant Craig Schilling had leased from General Motors Acceptance Corporation under a
lease co-signed by J. Edward Clouse in his capacity as president of Clouse Trucking, Inc.
Plaintiff objects that J. Edward Clouse, individually, is not a proper party to this appeal, asserting that as an individual he never moved for summary judgment, and that the order denying summary judgment only refers to the corporate defendant. Defendants point out that their brief in support of the motion for summary judgment stated:
Defendants Clouse Trucking and J. Edward Clouse bring this motion for summary judgment based on the fact that Clouse Trucking, Inc. only co-signed the lease and did not own the motor vehicle driven by Schilling.
Defendants also note that their proposed order under R. 1:6-2 referred to the motion as being on behalf of both defendants and sought that the Complaint be dismissed and judgment entered in favor of both defendants. They point out that the order entered referring only to Clouse Trucking, Inc. was submitted by plaintiff.
We are satisfied that the intention of J. Edward Clouse, individually, was also to move for summary judgment. The moving papers, although somewhat lacking, were sufficient to give notice to plaintiff that both defendants were seeking relief. In the interests of justice we entertain this appeal as to both defendants.
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 it is found 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." U.S. Pipe & Foundry Co. v. Amer. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.Div.1961). If the court finds that no issue of material fact exists, it then must decide ...