On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-4275-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Plaintiffs Helen and Joseph Suarez appeal from the August 22, 2006 order granting summary judgment to defendant, Dean Yoffredo, dismissing plaintiff's complaint for damages alleging personal injuries sustained when she tripped on a crack in the sidewalk adjacent to defendant's property.*fn1 Relying on Smith v. Young, 300 N.J. Super. 82, 99-100 (App. Div. l997), the court held that as a matter of law, defendant's owner-occupied, two-family home was a residential property for liability classification and thus defendant did not have a duty to maintain the abutting sidewalk in reasonably good condition.
On appeal, plaintiffs contend they were denied their rights to conduct and obtain relevant discovery pertaining to financial aspects of the subject property. They further assert the trial court erred in ruling that the property was residential based on Smith and, instead, should have analyzed the case under Avallone v. Mortimer, 252 N.J. Super. 434 (App. Div. l99l), utilizing the "predominance of use" or "primary function" test. Plaintiffs alternatively make the policy argument that "the residential-commercial distinction places an unfair burden on plaintiffs to discover and establish what is occurring behind the façade of a building and unfairly shelters property owners from liability who know their sidewalk is a hazard, know that pedestrians will walk upon it and neglect taking corrective action" and urges us to hold all property owners responsible for injuries caused to the public by sidewalks they control. We are not persuaded by plaintiffs' arguments and affirm substantially for the reasons articulated by Judge O'Shaughnessy in his oral decision of August 22, 2006.
In l999, defendant took title to a two-story building located at 46 W. 22nd Street in Bayonne. The first floor consisted of a store that had been closed and the second floor consisted of a one-bedroom apartment occupied by a tenant who remained. Defendant renovated the first floor into a one-bedroom apartment and moved in, where he remained for the duration of his ownership of the property.
Plaintiff tripped on the sidewalk adjacent to defendant's property on August 7, 2004, sustaining injuries. On August 23, 2005, plaintiffs filed suit. Defendant testified at depositions that he did not repair, perform any construction or make any improvements to the sidewalk from the time he bought the property to the date of the accident. Defendant also testified that he continuously resided in the property from the time he purchased it and explained that the municipal tax bills were mailed to his sister's address in West Windsor because she was more "financially responsible." The tenant sent her his rental checks and she paid the taxes, often using her own funds to make up the shortfall. Defendant's sister provided corroborating testimony in her deposition.*fn2
On June 2, 2006, plaintiffs filed a motion to compel discovery, returnable on June 23, specifically requesting defendant's financial records relative to the property, which she asserted were relevant to the issue of "commercial" classification for sidewalk liability. On the same date, defendant moved for summary judgment, returnable on July 7. Oral argument on both motions was rescheduled to August 4, 2006. Defendant argued he did not owe a duty to plaintiff because, as a residential property owner, he was not responsible for the care or maintenance of the abutting sidewalk and did not have a duty to maintain it in a reasonably safe condition. He further argued the fact that a tenant occupied one of the units of the property did not render the building a "commercial property" for the purposes of sidewalk liability, relying on the bright-line rule established in Smith excluding small owner-occupied dwellings from commercial classification. Smith, supra, 300 N.J. Super. at 99-100. In support of his claim he was occupying the first-floor unit, defendant submitted his deposition and an affidavit with a copy of his driver's license listing the property address and Bayonne MUA and PSE&G bills and correspondence from Social Security sent to him at that address; his sister's affidavit, which was consistent with her deposition testimony; and an affidavit of the upstairs tenant, who was unrelated to defendant, confirming the living arrangements.
Plaintiffs countered that the court should analyze the case under the "predominant use" or "primary function" test of Avallone and consider factors such as the extent of income and the extent of non-owner occupancy in terms of time and space. Avallone, supra, 252 N.J. Super. at 437-38. Plaintiffs argued the property should be considered commercial in nature because:
(1) the upstairs unit was significantly larger than defendant's*fn3 and thus the rental space was the majority of the square footage of the building; (2) the tenant's rental of $675 per month, which covered more than 95% of the taxes and thus substantially offset the carrying costs, indicated the property's use was predominantly for rental purposes; and (3) the property had been a commercial use before defendant purchased it, and even though on February l7, 2004, five months before the accident, the City had issued defendant a "Certificate of Continued Occupancy" for "Two (2) Dwelling Units - For Re-Financing," he had not signed a document with the City until October 31, 2005, over a year after the accident, formally abandoning the commercial use of the property. Plaintiffs again raised the issue that the tax bill was sent to a different location but argued whether the property was owner-occupied was not dispositive of its use under Avallone.
At the conclusion of argument, the court ordered defendant to produce, within fourteen days, any loan application he made regarding the property and copies of portions of his 2003 and 2004 federal income tax returns reflecting income and expenses relating to the property, and denied other discovery requests. The court reserved decision on the summary judgment motion. On August 21, 2006, the court signed an order memorializing its ruling on the discovery motion, which further provided that "Defendant's motion for summary judgment argued on August 4, 2006 but not yet decided by the Court is unaffected by this order."
On August 22, 2006, the court issued its decision on the record, summarizing the law on sidewalk negligence and granting summary judgment to defendant based on Smith. Judge O'Shaughnessy made the following findings:
Now, the property at issue is distinctly residential in the common understanding of that term. Focusing on the mere use, it is clear that the subject property was used by defendant movant for ...