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Rowe v. Mazel Thirty

October 29, 2010

WILLIE C. ROWE AND KAREN ROWE, HIS SPOUSE, PLAINTIFFS-APPELLANTS,
v.
MAZEL THIRTY, LLC AND 40-50 LENOX REALTY ASSOCIATES, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9353-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 31, 2010

Before Judges Payne and Messano.

Plaintiffs Willie C. Rowe and Karen Rowe*fn1 appeal from an order granting defendants Mazel Thirty, LLC, and 40-50 Lenox Realty Associates, LLC, summary judgment. In a single point heading plaintiff claims the motion judge erred by concluding "that defendants owed no duty to . . . plaintiff," because that a determination "necessarily required that [the judge] make factual determinations [that] should have been left for the jury." We have considered this argument in light of the motion record and applicable legal standards. We affirm.

When reviewing a grant of "summary judgment, we [employ] the same standard[s] . . . [used] by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citation omitted), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider 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. The judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quotations omitted).]

Only "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact" is "that issue . . . insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citation omitted).

We then consider whether the motion judge's application of the law was correct. Atl. Mut. Ins., supra, 387 N.J. Super. at 231. In this regard, we owe no deference to the judge's conclusions. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The relevant deposition testimony in the motion record revealed that on December 23, 2005, plaintiff, an East Orange police officer, injured himself when the masonry and brick steps that led into the basement of defendants' Lenox Avenue building crumbled and gave way. As part of the city's "safe block" initiative, plaintiff's job was to "control peoples' entrance on the street, check the . . . vacant apartment buildings and the houses on the streets, . . . and write up any violations." He was the only police officer assigned to Lenox Avenue that day.

Plaintiff had been to the premises once before for similar reasons, though he could not recall exactly when. On the prior occasion, he "wrote [the property] up for some broken windows." The building was vacant at that time and construction was ongoing.

On the day in question, plaintiff did not see any construction workers at the building. It was approximately 4:30 or 5:00 p.m., and plaintiff was able to observe the stairs, which appeared to be in the same condition as when he had visited the premises on the prior occasion. Plaintiff "looked to see if anyone was [on the stairs], then [he] went to check and ma[k]e sure the [outside] door was secure to the basement." He held onto the rail because "the steps were kind of narrow," and, as he proceeded down toward the door, "the cement cracked." Plaintiff's foot became stuck as his body was propelled forward. He never struck the ground, but his leg became "numb" and he experienced pain. He limped back up the stairs to his police vehicle.

Photos of the stairwell revealed its condition to be dilapidated. Although the steps were constructed of brick, apparently a cement wash was placed atop the treads. Plaintiff slipped when a piece of the cement overlay became dislodged and gave way.

Abraham Bender, defendants' representative, testified that the building was vacant and being rehabilitated pursuant to work permits issued by the city some nine months earlier. The building was secure, the windows boarded up with plywood, signs were posted prohibiting access, and guard dogs were present in the building from the late afternoon until the early ...


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