On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9036-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
JP Morgan Chase Bank (Chase) appeals by leave granted from an order entered by the Law Division on July 31, 2009, denying its motion to dismiss a third-party claim asserted against it by Peter O. Bryn General Contractor (Bryn), and an order entered on October 9, 2009, denying its motion for reconsideration. We reverse.
This appeal arises from the following facts. Russo Family Limited Partnership (Russo) owns an office building at 600 Commerce Boulevard in Carlstadt, New Jersey, and leased the premises to Chase, pursuant to a lease agreement dated March 13, 2000. The lease provides in pertinent part that Chase shall, at its own cost and expense, maintain the interior and exterior of the leased premises.
Chase entered into a contract dated October 15, 2003, with Bryn, under which Bryn was required to provide snow removal and related services. Among other things, the contract stated that Bryn would remove snow and ice from the roadways, drives, parking lots and other areas in the leased premises. The contract detailed the services that Bryn would provide and stated that the services would be performed "without notification" from Chase.
Carmen Mayorga (Mayorga) is one of Chase's employees. On December 11, 2007, Mayorga and her husband, Fermin Mayorga, filed a complaint in the Law Division, and named Russo and Bryn as defendants. Plaintiffs alleged that, on December 12, 2005, Russo and Bryn negligently and carelessly permitted the parking lot and adjacent sidewalk on the premises at 600 Commerce Boulevard in Carlstadt "to become snow covered, wet, slippery, icy, and otherwise [permitted these areas] to remain in an unsafe and dangerous condition." Plaintiffs alleged that Mayorga was walking to the aforesaid parking lot/sidewalk and "slipped and fell due to the icy and otherwise unsafe and dangerous condition." Mayorga sought damages for her personal injuries, and her husband asserted a claim for the loss of his wife's services and consortium.
Bryn thereafter filed an answer, cross-claims and a third-party complaint against Chase. In count one of the third-party complaint, Bryn asserted a claim against Chase for contribution pursuant to the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, to the extent that any of plaintiffs' injuries or damages "were proximately caused by" Chase's "carelessness and negligence[.]" In count two of the third-party complaint, Bryn asserted a claim against Chase for "full indemnification" if plaintiffs sustained any injuries or damages due to Chase's "primary negligence[.]" Chase filed an answer denying liability.
In March 2009, Chase filed a motion to dismiss Bryn's third-party complaint. The court heard argument on the motion on May 15, 2009, and issued an order on July 31, 2009, denying the motion. The court appended a rider to the order, in which it set forth its reasons for denying Chase's motion.
The court wrote that Chase's motion was premature because there were genuine issues of material fact. The court stated that Bryn had alleged that Chase had a contractual duty to notify it if its performance of the snow/ice removal services was in any way deficient. The court additionally noted that Bryn also had claimed that Chase's actions or omissions could have caused or contributed to plaintiff's injuries.
The court also wrote that the subject snow/ice removal contract was ambiguous. The court noted that the agreement expressly provided that Bryn would indemnify Chase for claims arising out of the performance of the contract, but the indemnity provision in the contract was silent as to negligence created by Chase's own acts or omissions.
The court additionally stated that there was a "question of fact as to whether [Chase] had agreed to timely notify Bryn of deficiencies or problems in Bryn's performance under the contract." In addition, the court stated that there was a genuine issue of fact as to whether Chase's failure to notify Bryn had contributed to Mayorga's personal injuries and discovery was required to resolve that issue.
Thereafter, Chase filed a motion in seeking reconsideration of the court's July 31, 2009 order. The court heard arguments on this motion on September 11, 2009, and filed an order dated October 9, 2009, denying the motion. In a rider attached to ...