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Alvarez v. Pizzeria

April 9, 2010

FRANCISCA ALVAREZ, PLAINTIFF-APPELLANT,
v.
TERMINI PIZZERIA AND MARIA SANFILIPPO, DEFENDANTS, AND ANTONIO SANFILIPPO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3003-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2010

Before Judges J. N. Harris and Newman.

Plaintiff, Francisca Alvarez, appeals from an order granting summary judgment to defendant, Antonio Sanfilippo, the landlord/owner of the building at 4107 Bergenline Avenue, Union City, New Jersey. We affirm.

Viewing the facts in a light most favorable to plaintiff, they may be summarized as follows. The building in question has a commercial pizzeria on the ground floor and two rental apartments on the second floor. Sanfilippo operated the pizza establishment for many years but sold it to Termini. In the lease agreement, Termini assumed all responsibility for repairs to the premises and also held Sanfilippo harmless from any injuries or damages that could occur on and to the premises.

Plaintiff was exiting the pizzeria with a cup of soup when she slipped and fell on the one step down from the entrance/exit door of the pizzeria. She suffered a femoral fracture, requiring surgery, as well as depression and post-traumatic reaction to the accident.

Plaintiff sued both the landlord and tenant, settling her case against the tenant for $125,000.

The step on which plaintiff fell was not a design defect which could affect the potential liability of Sanfilippo because he made certain repairs when he took over the premises. The step was in disrepair because of excessive wear and tear which, according to plaintiff's engineering expert, Wayne F. Nolte, left the step with an irregular edge due to wear and tear. Nolte was of the opinion that it constituted an extreme hazard. Subsequent to the accident, Termini had the step repaired.

Sanfilippo had nothing to do with repairs to the pizzeria, but did maintain responsibility for the second floor apartments which had a separate entrance on the side of the building. His only contact with the pizzeria was to collect the rent. He did not assume any inspection role regarding the pizzeria.

In granting summary judgment, the trial court relied on Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007), and concluded that the landlord owed no duty to the pizzeria patron.

On appeal, plaintiff raises the following issues for our consideration:

POINT I.

SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED SINCE THERE IS A GENUINE ISSUE OF MATERIAL FACT WHICH SHOULD BE DECIDED BY A JURY AS TO ...


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