On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3729-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Simonelli.
Plaintiff, Ewald Pries, appeals from an order, dated June 9, 2006, granting summary judgment in favor of defendants, Thomas Mallon, Michael J. Mallon, and Dennis M. Mallon (collectively the Mallon defendants), as heirs to the Estate of Catherine Mallon, deceased (the Estate). Additional heirs to the Estate, defendants Kathleen Hugin, Christa Quagliaozzi, and Maureen Lopez are not participating in this appeal. Defendants Quagliaozzi and Lopez were dismissed from the action by order for voluntary dismissal filed on November 29, 2006. A separate order for entry of judgment against the Estate and against Kathleen Hugin, individually and as Executrix of the Estate, was filed on December 21, 2007.
Plaintiff asserts in his appellate brief that "[t]he crux of the motion for summary judgment was whether or not, under the facts as stated, the heirs of the estate were liable to plaintiff as owners of the property from which the raw sewerage flowed into the plaintiff's property." Plaintiff contends that under Orland Props. v. Broderick, 94 N.J. Super. 307 (Ch. Div. 1967), the defendants became owners of the property once owned by the late Catherine Mallon on Ninth Street, Union City (the property), upon her death. Plaintiff further contends that as owners of the property, defendants' failure to repair a broken sewer line, which caused raw sewage to flow onto plaintiff's property constituted a failure to abate a nuisance and continuing trespass.
The Mallon defendants contend that Orland is no longer good law, and that the controlling authority is N.J.S.A. 3B:10-29 and -30. Pursuant to N.J.S.A. 3B:10-29, "every personal representative has a right to and shall take possession or control of, the decedent's property . . . [and] shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession." In accordance with N.J.S.A. 3B:10-30, "a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate." Defendants argued that as beneficiaries of their mother's Will, they were rightfully joined in the action as interested parties, but that they owe no duty to plaintiff.
At the conclusion of the oral arguments, the motion judge expressed her agreement with the defense "that the Orland case is distinguishable, and that the statute [N.J.S.A.] 3B:10-29 is what is in fact controlling in this day and time." The court observed that "as far as ownership [is concerned], legally the ownership is still vested in [the] Estate." The court added that the property will continue to be owned by the Estate until such time as a deed has been executed transferring the property. While we agree with plaintiff that defendants became owners of the property upon Catherine Mallon's death, we nonetheless agree with defendants and the motion judge that they owe no duty to plaintiff. The duty, if any, is owed by the Estate and the Executrix, who manages and controls the property. We, therefore, affirm the order granting summary judgment.
The material facts in this case are undisputed. At all relevant times, plaintiff was the owner of a property on Ninth Street, Union City, which was adjoined to the property owned by the late Catherine Mallon. On May 10, 1990, Catherine Mallon died testate. In her Will, she bequeathed and devised the property to her six children: Thomas Mallon, Michael J. Mallon, Dennis M. Mallon, Kathleen Hugin, Christa Quagliaozzi, and Maureen Lopez. Kathleen Hugin was named Executrix of the Estate.
Plaintiff suspected that raw sewage was continuously flowing from the property onto his property on Ninth Street. Based on that suspicion, he obtained an order allowing him access to the property. An inspection by plaintiff's experts confirmed that the source of the sewage was a broken sewer line in the basement of the property which was flowing under the common foundation wall and into plaintiff's basement.
When it became apparent to plaintiff that he could not reach a satisfactory resolution of the problem with the Estate or the individual devisees under the Will of Catherine Mallon, he filed a complaint in the Superior Court of New Jersey, Law Division, Hudson County, to compel abatement of the nuisance and continuing trespass, and to recover damages. In that complaint, plaintiff alleged that all who inherited the property under Catherine Mallon's Will, including the Mallon defendants, were liable for failing to fix the broken sewer line in the basement of the property.
After discovery was complete, the Mallon defendants moved for summary judgment. They argued that they should not be held liable for damage caused by a condition on the property because they neither owned nor controlled the property. Plaintiff responded that under Orland, title to the real estate passed to the heirs of the deceased owner upon the owner's death. The heirs contended that they were mere beneficiaries, without title to the property. As already noted, the court agreed that Orland is distinguishable and that N.J.S.A. 3B:10-29 is the controlling authority. An order granting summary judgment in favor of the Mallon defendants only was entered on June 9, 2006.*fn1 Plaintiff filed a notice of appeal from that order on May 30, 2008.
The standard controlling our review is well established.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material ...