On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8329-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and C.L. Miniman.
Plaintiff filed a complaint that alleged she fell and suffered injuries in a building owned by defendant due to a faulty metal nosing on a stair. Defendant successfully moved for summary judgment on the ground that it lacked knowledge of the allegedly defective property condition. We agree plaintiff's opposition did not generate a genuine dispute when plaintiff merely relied upon her deposition testimony as to what someone else told her about defendant's knowledge of the property. We nevertheless vacate the summary judgment and remand for further proceedings in order to permit plaintiff an attempt to dispel the ambiguity surrounding the admissibility of her hearsay testimony.
The facts are simple. On September 14, 2005, plaintiff arrived at defendant's building in Orange at the suggestion of a friend, George Jones, who advised her that an apartment in the building had become available. She claims that she rang the doorbell, and George, who was a tenant, let her in. Allegedly, as plaintiff descended the stairs to Jones's apartment, she caught her foot on the third step from the top and fell, fracturing her ankle. Plaintiff claims that while sitting on the floor in extreme pain, she looked back up the stairs and saw the metal nosing piece on the stair sticking up "like half an inch." Her suit is based upon this alleged defect in the condition of the stairs.
The parties exchanged answers to interrogatories. Plaintiff was also deposed. Defendant then moved for summary judgment, arguing it had no actual or constructive knowledge of the alleged condition of the property and relying upon Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div.), aff'd o.b., 63 N.J. 577 (1973).*fn1
Plaintiff did not file an affidavit or certification in response. Rather, she relied only on her following deposition testimony:
Q: Okay. After the accident, did Mr. Jones say anything about the steps?
Q: All right. Tell me what he said.
A: He said specifically "I keep -- we keep telling them to fix this God damn step," or something like that, you know.
Q: So words to the effect that he had told somebody that they should ...