Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montalvo v. Lincoln Avenue Corp.

October 30, 2009

SONNIA MONTALVO, AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE HEIRS AT LAW OF OSCAR MONTALVO, DECEASED, AND ADMINISTRATRIX OF THE ESTATE OF OSCAR MONTALVO, DECEASED, AND SONNIA MONTALVO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
LINCOLN AVENUE CORPORATION, INC., DEFENDANT-RESPONDENT,
v.
CITY OF NEWARK,*FN1 THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2406-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 18, 2009

Before Judges Carchman, R. B. Coleman and Simonelli.

Plaintiff Sonnia Montalvo (plaintiff), individually and as administratrix ad prosequendum for the heirs at law of Oscar Montalvo, deceased, and administratrix of the estate of Oscar Montalvo, appeals from an order of the Law Division, dated August 1, 2008, which granted summary judgment in favor of defendant Lincoln Avenue Corporation, Inc. (Lincoln Avenue), and from another order dated October 7, 2008, which denied plaintiff's motion for reconsideration. Plaintiff's husband, Oscar Montalvo, was fatally shot while he was performing his duties as superintendent of residential properties owned by Lincoln Avenue. In response to plaintiff's action for wrongful death, Lincoln Avenue took the position, accepted by the Law Division, that it was a joint employer of Montalvo and therefore protected by the exclusive remedy provisions of the Workers' Compensation Act.

Based upon our review of the record and applicable law, we affirm the grant of summary judgment for substantially the reasons expressed by Judge Theodore Winard in his oral opinion rendered at the conclusion of oral argument on August 1, 2008. The determinative issue concerned Montalvo's relationship with T.R. Murnick, the management company by which he was officially employed, and Lincoln Avenue, the owner of the residential properties managed by T.R. Murnick. To state it differently, the issue was and is essentially whether the rental value of the decedent's apartment, which was part of the decedent's remuneration for his services as superintendent of apartments managed by T.R. Murnick and owned by Lincoln Avenue, constituted compensation only from T.R. Murnick or from Murnick and Lincoln Avenue jointly.

We briefly state the relevant facts. Lincoln Avenue is a New Jersey corporation whose purpose is to own property located at 161 Lincoln Avenue and 167 Lincoln Avenue, Newark, and at other locations. Theodore Murnick (Theodore) was the secretary of the corporate entity, and his wife, Maxine Murnick (Maxine) was the only other officer. The Murnicks were also sole partners of T.R. Murnick, a partnership whose purpose was to manage several properties, including the properties owned by Lincoln Avenue. The Murnicks are also the principals of a number of limited liability corporations that own different properties. The Murnicks informally refer to their business entities together as "Murnick Property Group."

In 1997, Montalvo became a superintendent for the Lincoln Avenue buildings, at 161 Lincoln Avenue and 167 Lincoln Avenue. Montalvo's gross pay was $975 biweekly, paid by checks issued by T.R. Murnick. He and his family lived rent-free in their apartment at 167 Lincoln Avenue, which Theodore assessed in his deposition to have a value of $650 per month, and which Maxine, in connection with a 2008 audit, assessed at a value of $500 per month.

According to Theodore, Montalvo's duties were to "live in the building and take care of maintenance," cleanliness, security and repairs of the building, "show apartments to tenants and give notice to tenants, generally oversee the property." As far as security was concerned, Theodore expected that Montalvo would call the police and him if there were any suspicious activities at the properties. On November 15, 2006, Montalvo was shot to death while a burglary was taking place at 161 Lincoln Avenue.

According to plaintiff, rent forgiveness was part of the compensation provided to Montalvo by T.R. Murnick. Defendant, on the other hand, contends that it was Lincoln Avenue which provided the rent-free apartment to Montalvo.

The court found that Montalvo was paid by both entities concurrently because he received $815 weekly from T.R. Murnick, and he lived at 167 Lincoln Avenue without paying rent. The court found irrelevant to its decision whether the monetary value of the rent-free apartment was included in the workers' compensation proceedings.

On an appeal from an order granting summary judgment, we review the case de novo, applying the same standard as that which applies to the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any 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). The judge's role is to determine whether any genuine issues for trial exist, not to weigh the evidence and decide on the truth of the matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The inquiry is "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Ibid. (internal quotations and citations omitted).

The material facts are not in dispute. Montalvo was employed as the superintendent in a building owned by Lincoln Avenue and managed by T.R. Murnick. As part of his compensation, Montalvo and his family were permitted to occupy an apartment rent-free. What is in dispute is the effect of the relationship of the parties upon the right of Montalvo and his dependents to sue the owner of the property where he was shot.

Plaintiff contends that the trial court erred by piercing the corporate veil and ruling that Lincoln Avenue was not a separate legal entity and that it employed Oscar Montalvo. We, of course, acknowledge the fundamental propositions that a corporation is a separate entity from its shareholders and the remedy of piercing the corporate veil will not be employed unless the party seeking that remedy demonstrates it is necessary to "prevent an independent corporation from 'being used to defeat the ends of justice, to perpetuate fraud, to accomplish a crime or otherwise to evade the law[.]'" Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.