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Papakostas v. Mitterman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 10, 2008

SOPHIA PAPAKOSTAS, PLAINTIFF-APPELLANT,
v.
GARY E. MITTERMAN AND JUDITH A. MITTERMAN, HIS WIFE, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4371-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2008

Before Judges Coburn, Grall and Chambers.

Plaintiff Sophia Papakostas appeals from a final order granting summary judgment to defendants Gary E. Mitterman and Judith A. Mitterman. Defendants are the owners of property leased to plaintiff's employer, Central Animal Hospital, PA (CAH). We affirm the grant of summary judgment in favor of the landlords substantially for the reasons stated by Judge Espinosa in her oral decision of July 6, 2007.

Plaintiff was injured when she slipped on ice in the CAH parking lot. She alleges that her injuries resulted from the landlords' negligence in failing to repair a hazardous condition in the parking lot, which was a depression that permitted water to accumulate and freeze.

On review of this grant of summary judgment in favor of defendants, we consider the evidential materials submitted on the motion in the light most favorable to plaintiff and give her 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 [defendants are] 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. CAH and Gary E. Mitterman leased the property at issue in 1990, for a term of five years with an option to renew. CAH is the only tenant, and it occupies the entire premises. At the time of the initial lease, the property was owned by Gary E. and Frank S. Mitterman. Subsequently, Judith A. Mitterman acquired Frank S. Mitterman's interest in the property and the lease. There is no dispute that the terms of the initial lease were extended and in effect when plaintiff slipped and fell on December 15, 2003. In addition to owning an interest in this property, Gary E. Mitterman is a veterinarian and the president of CAH, which is a professional association.

The lease at issue here is a "'triple net' or 'net-net-net' lease . . . in which [the] commercial tenant is responsible for 'maintaining the premises and for paying all utilities, taxes and other charges associated with the property.'" Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400 n.2 (App. Div. 2006) (quoting N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985)), certif. denied, 190 N.J. 254 (2007). The lease provides for repair and care as follows:

The Tenants have examined the premises and have entered into this lease without any representation on the part of the Landlord as to the condition thereof. The Tenants shall take good care of the premises and shall at the Tenants' own cost and expense, make all repairs, including structural and roof repairs, . . . and shall maintain the premises in good condition and state of repair, and at the end or other expiration of the term hereof, shall deliver up the the rented premises in good order and condition . . . . The Tenant shall neither encumber nor obstruct the sidewalks, driveways, yards, entrances, hallways and stairs, if any, but shall keep and maintain the same in a clean condition, free from debris, trash, refuse, snow and ice . . . .

With respect to inspection and repair, the landlord retained the right to enter for the purpose of examining the premises at reasonable hours and making repairs necessary for safety. The paragraph that includes this reservation of rights, however, also provides that it cannot be "construed to create an obligation on the part of the Landlord to make such inspection or repairs."

Viewed in the light most favorable to plaintiff, the facts entitle defendants 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, supra, 388 N.J. Super. at 401. "'[T]here is no landlord liability' for personal injuries suffered by a commercial tenant's employee on the leased premises 'due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for such maintenance or repair solely upon the tenant.'" Id. at 401 (quoting McBride, supra, 295 N.J. Super. at 522). We fail to see a basis for distinguishing this case 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.

On appeal plaintiff argues that Gary E. Mitterman's status as a tenant and landlord calls for an imposition of a duty. We recognize that under New Jersey law a defendant's duty to one injured on his or her property "turns upon a multiplicity of factors, including a consideration of the relationship of the parties, the nature of the attendant risk, defendant's opportunity and ability to exercise reasonable care and the public interest in the proposed solution." Geringer, supra, 388 N.J. Super. at 400. Nonetheless, our courts have not held that allocation of responsibility under the terms of a triple-net lease could be altered by the landlord's knowledge of a condition the landlord is not obligated to repair or correct. In this case, plaintiff has no common law cause of action in tort against the tenant, CAH, because the professional association is her employer within the meaning of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. See N.J.S.A. 34:15-36.

Plaintiff's complaint cannot be read to assert, and she did not argue below, that Gary E. Mitterman was negligent as a tenant with a status distinct from that of CAH. Compare Lyon v. Barrett, 89 N.J. 294, 298-304 (1982) (discussing the immunity of the workers' compensation law and its application to a professional corporation and its sole owner in a case involving injury on property leased to the corporation by its owner under a lease that exposed the landlord to liability for injuries to employees of tenants and overruling Seltzer v. Isaacson, 147 N.J. Super. 308 (App. Div. 1977)) with Mazzuchelli v. Silberberg, 29 N.J. 15, 21-23 (1959) (noting that partners are not entities separate from the partnership and concluding that as long as the employer and the tort-feasor are identical, the injured employee is limited to an action under the workers' compensation laws). Because plaintiff did not include an allegation based on Gary E. Mitterman's negligence as a tenant in her complaint or her argument on summary judgment, we decline to consider that claim on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

20080610

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