On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2193-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Carchman and Simonelli.
Plaintiffs Boban Jovanovic*fn1 and Rosa Jovanovic appeal from a July 22, 2005 order of the Law Division granting summary judgment dismissing their complaint against defendant Girard Lukowiak*fn2. Plaintiffs also appeal from the October 14, 2005 and December 16, 2005 orders of the Law Division denying plaintiffs' motions for reconsideration. We affirm.
These are the relevant facts related to this appeal. On June 10, 2001, plaintiff, accompanied by his seventeen-year-old daughter, traveled to Newark for the purpose of looking at used cars. Although the business was closed, plaintiff stopped at the premises occupied by C&S Motor Corp. (Motor Corp.) located at 525 McCarter Highway. Plaintiff and his daughter looked at cars through a fence surrounding the property, and after being distracted by a passer-by seeking money, plaintiff turned and fell on a sign located immediately adjacent to the fence. The sign contained the legend "C&S Auto Sales" (Auto Sales). According to the deposition of Armando Conceicao, a principal of both Motor Corp. and Auto Sales, the three signs*fn3 had been removed and placed on the ground along a fence line on June 9, 2001, one day before the accident.
A critical issue disputed by plaintiff involved the status of the lease agreement between Motor Corp. and defendant. Discovery revealed that in June 1996, defendant entered into a lease agreement with Conceicao and Fernando DaSilva, partners doing business as Auto Sales. That partnership failed to survive, and Conceicao formed Motor Corp., a corporation doing business at the McCarter Highway location. Despite plaintiff's challenge to the bona fides of the relationship, both defendant and Conceicao agreed that the lease arrangement previously entered into between defendant and Auto Sales continued in force with Motor Corp. continuing to pay the rent and maintaining exclusive control of the premises.
On defendant's original motion for summary judgment, the trial judge dismissed the complaint focusing on the tenant's exclusive possession. On plaintiff's motion for reconsideration, the judge shifted her focus and limited her reasoning to the issue of actual or constructive notice. She concluded:
2. As to the second issue however, Mr. Jovanovic fails to establish that Mr. Lukowiak had either actual or constructive notice regarding the dangerous condition present on his property. In order to recover in a sidewalk negligence case, a plaintiff has to also establish that the owner had actual or constructive notice regarding a dangerous condition affecting the sidewalk, and failed to act. Mirza v. Filmore, 92 N.J. 396 (1983). In the present case plaintiff fails to bring forward any evidence showing that the landlord had either actual or constructive notice. Therefore, the motion for reconsideration is hereby DENIED.
On appeal, plaintiff asserts that the motion judge erred by concluding that there was a valid lease, that plaintiff was denied due process, that the judge erred by concluding that defendant was a landlord "out of possession" and that there were material facts in dispute.
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). Our inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986))). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540). See also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div. 2006), certif. denied, 189 N.J. 103 (2006).
We apply the same standard as the trial court in reviewing the granting of motions for summary judgment, EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp., supra, 142 N.J. at 445-46) and we review the lower court's decision de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div. 2008), certif. denied, 196 N.J. 85 (2008)(citing Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). If then there is no genuine issue of material fact, we must "determine whether the trial court correctly interpreted the law." ...