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Judy Smith v. City of Newark

June 30, 2011

JUDY SMITH, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, CITY OF NEWARK HOUSING AUTHORITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4478-10. Ronald M. Gutwirth argued the cause for appellant.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 15, 2011

Before Judges Reisner and LeWinn.

Plaintiff Judy Smith appeals from orders dated October 1, 2010, dismissing her personal injury claim against defendants City of Newark (City) and City of Newark Housing Authority (Authority). Because we conclude that the case was not ripe for summary judgment, we vacate the orders on appeal and remand this matter to the trial court.

I On August 26, 2008, plaintiff's counsel mailed a notice of tort claim to the City of Newark Law Department, contending that on May 29, 2008, plaintiff fell on an uneven sidewalk at the corner of Broome and Mercer Streets. See N.J.S.A. 59:8-8 (requiring a plaintiff to file a notice of tort claim as a prerequisite for tort litigation against a public entity). An attorney for the City responded by letter of August 28, 2008 advising, among other things, that due to "the volume of claims received by the City" and its limited resources, the City could not follow up on deficient claims and "compliance with the Tort Claims Act is your obligation."

Without filing a separate tort claim notice against the City of Newark Housing Authority, plaintiff filed a complaint on May 28, 2010, against both the City and the Authority. On August 17, 2010, the City filed a summary judgment motion in lieu of filing an answer, contending that the City did not own the sidewalk where plaintiff fell. The motion was supported by a certification from the City's Tax Assessor attesting that the sidewalk in question was part of the Oscar Miles Village apartment complex, which was owned by the Authority. Her certification authenticated copies of the City tax map and tax records.

The Authority also filed a summary judgment motion, based on plaintiff's failure to file a tort claim notice with the Authority. Plaintiff filed opposition, asserting that the Authority and the City should not be considered separate entities for purposes of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Alternatively, she argued that service of a notice on the City should be deemed substantial compliance with her obligation to make service on the Authority. She contended that she should be entitled to discovery on the relationship between the City and the Authority. She also sought discovery as to which entity repaired the sidewalk, because that might be relevant as to which entity controlled the sidewalk. Her counsel pointed out that he had served interrogatories but neither defendant had answered them and, therefore, the case was not ripe for summary judgment.

In an oral opinion issued October 1, 2010, the motion judge granted summary judgment to both defendants, without addressing plaintiff's argument concerning the need for discovery. Taking judicial notice of the City's tax records, she concluded that the City did not own the sidewalk where plaintiff fell. Citing English v. Newark Housing Authority, 138 N.J. Super. 425 (App. Div. 1976), she concluded that the Authority was a separate entity from the City and that a separate notice of tort claim was required. She also considered that plaintiff's counsel could have investigated and "discern[ed] the public nature of the Newark Housing Authority."

Relying on Leidy v. Ocean County, 398 N.J. Super. 449 (App. Div. 2008), the judge reasoned that the City had no duty to "ascertain where a tort claim should be filed or to pass along a notice of tort claim, or to notify any other party to the action that perhaps they should serve another entity." She rejected plaintiff's claim of substantial compliance, because the City and Authority had not concealed the identity of the property owner. See Feinberg v. State Dep't of Envtl. Prot., 137 N.J. 126 (1994).

The judge found that the Authority's non-profit status did not provide a basis to impose responsibility on the City for the upkeep of the sidewalk adjacent to the Authority's property. She dismissed the claim against the Authority because plaintiff did not serve the Authority with a tort claim notice.

II Our review of the trial court's summary judgment decision is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Using the Brill*fn1 standard, we determine whether, giving the non-moving party the benefit of all favorable inferences, the undisputed material facts entitle the moving party to judgment. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

However, a case is generally not ripe for consideration of summary judgment motions until the parties have had the opportunity to complete discovery on the issues relevant to the motions. James v. Bessemer Processing Co., 155 N.J. 279, 311 (1998). "When 'critical facts are peculiarly within the moving party's knowledge,' it is especially inappropriate to grant summary judgment when discovery is incomplete." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J. Super. 317, 326 (Ch. Div. 1981)).

A. On this appeal, plaintiff first contends that the City should not have been dismissed from the case because, even if the property adjoining the sidewalk belonged to the Authority, the City was still responsible for the upkeep of the sidewalk. In support of that argument plaintiff asks us to hold that the Authority is not subject to sidewalk liability because it is a non-profit provider of housing. Citing Norris v. Borough of Leonia, 160 N.J. 427 (1999), plaintiff further argues that if the Authority is not subject to liability, the municipality must be. Plaintiff ...


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