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Smith v. Greenstone Development

September 28, 2009

BRIAN SMITH AND KAREN SMITH, HIS SPOUSE, PLAINTIFFS-APPELLANTS,
v.
GREENSTONE DEVELOPMENT, LLC, DEFENDANT-RESPONDENT, AND THE CITY OF HOBOKEN, DEFENDANT, AND MOLFETTA CORPORATION, AND/OR MOLFETTA, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
CIRILLO ELECTRIC, CAPITAL PLUMBING, LIBERTY FIRE SPRINKLER, TAAS CONSTRUCTION, AND AIR TEMP CONTROL, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1988-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2009

Before Judges Skillman and Gilroy.

Plaintiffs Brian Smith and Karen Smith,*fn1 his wife, appeal from the August 19, 2008 order of the Law Division that granted summary judgment to defendants Greenstone Development, LLC (Greenstone), and Molfetta Corporation (Molfetta).*fn2 We affirm.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. Greenstone is the owner of property located at 98 Garden Street, at the intersection of Garden Street and First Street, Hoboken (the property). Molfetta is a general contracting company. In December 2004, Greenstone entered into a contract with Molfetta to construct a multi-unit structure on the property. On March 3, 2005, after a stop-work order was issued against the project, Molfetta notified all subcontractors to cease all construction activities at the property.

On May 1, 2005, plaintiff, while walking on the public sidewalk adjacent to that portion of the property abutting First Street, stepped on a screw lying on the sidewalk. The screw penetrated plaintiff's sandal, imbedding itself into plaintiff's right foot. Plaintiff hailed a taxicab, instructing its driver to take him to a hospital emergency room. The taxicab driver proceeded to St. Mary's Hospital, where emergency room personnel x-rayed plaintiff's foot, removed the screw, and provided plaintiff with medication. On release from the hospital, the emergency room physician gave plaintiff the screw that he removed from plaintiff's foot. Plaintiff described the screw as a black Phillips-head screw, approximately two-inches in length.

At the time of the accident, plaintiff did not observe any ongoing construction occurring at the property. Plaintiff returned to the accident site approximately one week after the incident and observed various types of screws and nails scattered upon the sidewalk. However, none of the screws observed were identical to the type of screw that caused his injury. In the weeks following the accident, plaintiff observed construction occurring on the site and noticed a Molfetta construction truck parked nearby.

On April 19, 2007, plaintiff filed a personal injury complaint against Greenstone, Molfetta and defendant City of Hoboken. Molfetta filed a third-party complaint for indemnification or contribution against Cirillo Electric, Capital Plumbing, Liberty Fire Sprinkler, Taas Construction, and Air Temp Control.*fn3

Following the close of discovery, the three defendants filed motions for summary judgment. Plaintiff did not contest the City's motion. After oral argument on August 15, 2008, the trial court reserved decision as to Greenstone's and Molfetta's motions. On August 19, 2008, Judge O'Shaughnessy entered an order, supported by an oral decision, granting the two remaining defendants' motions. In so doing, the court reasoned:

[T]he [c]court finds that there is no evidence that defendants Molfetta or Greenstone had actual or constructive knowledge of [an] alleged dangerous condition. In point of fact, the plaintiff has testified that it was not until after the incident that he even saw a Molfetta construction truck. There was no act of construction taking place on the date of the incident. Indeed a stop work order had been issued in March of 2005. The plaintiff suffered his injuries in May of [2005], almost two months later.

. . . There's no evidence that the screw in question is of the same type that was commonly used by Molfetta or Greenstone especially on this site. There's no evidence as to the length of time the screw was on the ground . . . .

It is clear that the plaintiff did not know that Molfetta was, in fact, working at the site of the incident until he noticed a truck on the property several days after the incident. This in no way can . . . import notice on the defendants at the time of the accident. It is indeed after the fact, as are almost[all] of plaintiff's assertions. Plaintiff has failed to support his [bare] assertions with actual evidence.

The fact that the area in question was covered by scaffolding cannot be used to support the assertion that the screw that pierced the plaintiff's foot was, in fact, the same or ...


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