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Cabrera v. Windmere Investors


May 13, 2008


On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-5970-05.

Per curiam.


Submitted April 29, 2008

Before Judges Fuentes and Grall.

Plaintiffs Pedro and Frances Cabrera appeal from a final order granting summary judgment to defendant Windmere Investors, L.P. We affirm substantially for the reasons stated by Judge O'Connor in his oral decision of June 13, 2007.

Pedro Cabrera is an employee of the United States Postal Service (USPS) who was injured when he slipped on ice in the parking lot of the building the USPS leased from defendant. Cabrera alleges that he was injured as a consequence of defendant's negligence in controlling, maintaining and supervising the parking lot and failing to remedy a dangerous and hazardous condition. Frances Cabrera is Pedro Cabrera's wife, and her claims are per quod.

On review of this grant of summary judgment in favor of defendant, we must consider the evidential materials submitted on the motion in the light most favorable to plaintiffs and give plaintiffs the benefit of all reasonable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We must affirm if there is "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see Brill, supra, 142 N.J. at 540.

The grant of summary judgment was appropriate. Pedro Cabrera fell on December 2, 2003. The USPS leased the property at issue in 1972, and that lease was subsequently extended. The lease gives the USPS "exclusive use and occupancy" of the leased building and property, including the parking areas. The USPS is required to "keep the demised premises in good repair and tenantable condition," unless the premises is damaged by "fire or other casualty or calamity, Acts of God, acts of the public enemy, or acts of a stranger . . . ." After the first year of the lease, Windmere is responsible for no repairs beyond latent defects occurring before the USPS occupied the premises and discovered by the USPS thereafter. The USPS is required to pay for all custodial services.

Snow removal was done by the USPS without assistance or supervision by Windmere. The USPS owns snow removal and salt spreading equipment that was used by its employees, and the USPS also had a contract for snow removal with defendant A. Veniero & Sons, Inc.*fn1 Windmere never provided snow removal service to the USPS and was not consulted about or a party to the snow removal contract. Although a maintenance manager employed by the USPS admitted that the macadam in the parking lot has deviations that commonly collect run-off from melting snow that freezes at night, there was no evidence that the USPS or any other person ever notified Windmere of or complained about the condition.

Viewed in the light most favorable to plaintiffs, these facts entitle defendant to judgment as a matter of law. This court has held that a landlord is not liable for personal injuries suffered by the employee of a commercial tenant "due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for [the] maintenance or repair solely upon the tenant." McBride v. Port Auth. N.Y. and N.J., 295 N.J. Super. 521, 522 (App. Div. 1996). This court has consistently applied the principle. Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007). We have also held that the landlord's obligation does not extend to demised premises when the landlord has relinquished exclusive possession and control and the condition is obvious. Milacci v. Mato Realty Co., Inc., 217 N.J. Super. 297, 301 (App. Div. 1987). Here the evidence establishes that Pedro Cabrera's fall was due to a condition in a parking lot within the exclusive possession and control of the USPS, which was obligated to maintain the area. The condition was obvious to the USPS employee responsible for maintenance and not due to a latent condition that Windmere might have been obligated to repair on notice from the USPS. This case cannot be distinguished from our prior decisions involving the duties of commercial landlords and tenants. Vasquez v. Mansol Realty Assocs., Inc., 280 N.J. Super. 234, 236 (App. Div. 1995), which applies to public sidewalks, has no application here.


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