June 20, 2012
AMANY ISHAK AND MICHAEL ISHAK, HER SPOUSE, PLAINTIFFS-APPELLANTS,
JUMPING BROOK REALTY ASSOCIATES, L.L.C., A NEW JERSEY CORPORATION, AND/OR MACK-CALI REALTY, L.P., A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-696-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012
Before Judges Fisher and Grall.
Plaintiffs Amany Ishak and Michael Ishak appeal from a final order granting summary judgment to defendants Jumping Brook Realty Associates, L.L.C. (JBRA) and Mack-Cali Realty, L.P. (MCR). We affirm substantially for the reasons expressed in Judge LeBlon's written decision of September 28, 2011.
Amany Ishak is an employee of American General Insurance Company (AGIC). On February 26, 2008, Amany was injured when she tripped on an uneven portion of sidewalk on property that AGIC leased from JBRA. The private sidewalk upon which Amany fell connects the building to the parking lot, which are both located on the leased property. Plaintiffs allege that Amany was injured as the result of JBRA's negligence in exercising reasonable care to construct and maintain the sidewalk, and its failure to warn her of the dangerous condition existing thereon. Plaintiffs also allege negligence on the part of MCR, an entity hired by JBRA to manage the property in question. Michael Ishak is Amany's husband, and his claims are per quod.*fn1
On review of this grant of summary judgment in favor of defendants, we must consider the evidential materials submitted on the motion in the light most favorable to plaintiffs and give plaintiffs the benefit of all reasonable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We must affirm if there is "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see Brill, supra, 142 N.J. at 540.
Judge LeBlon appropriately granted summary judgment. At the time of Amany's fall, AGIC's tenancy on the property was subject to a lease agreement with a commencement date of January 1, 2004 and an expiration date of December 31, 2013. Pursuant to the terms of that lease, AGIC is required to "pay all costs, charges, expenses and outlays of every nature and kind" relating to the property, with the exception that JBRA is solely responsible for maintaining "structural portions of the Building, including the footings, foundations, structural steel, masonry and exterior walls (except windows), structural floor and . . . the Building's roof." Apart from that exception, JBRA has no obligation "to make any repairs, replacements or alterations to the Office Building Area, Building or Premises, it being the intention of the parties . . . that [AGIC] assume all of the repair and maintenance obligations therein." AGIC's repair obligations extend to defects "of every kind and nature, ordinary as well as extraordinary, non-structural, foreseen as well as unforeseen, whether necessitated by legal requirements, wear, tear, obsolescence or defects, latent or otherwise."
The lease further provides that JBRA is entitled, but not required, to enter the property upon reasonable notice to AGIC for the purpose of inspecting and making any repairs, replacements, or additions that JBRA deems necessary or desirable. In exercising that authority, JBRA utilized the property management services of MCR. Joan Rakita, an MCR employee, testified at deposition that she performed monthly inspections of the property and also completed annual reports. The most recent annual report prepared prior to Amany's fall is dated September 14, 2007; it indicates the condition of the sidewalk at that time was "[g]ood." Rakita testified that she did not observe any uneven or elevated portion of sidewalk in the course of preparing that report.
Viewed in the light most favorable to plaintiffs, these facts entitle defendants to judgment as a matter of law. As we have previously held, a landlord is not liable for personal injuries sustained by an employee of a commercial tenant "due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for maintenance or repair solely upon the tenant." McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521, 522 (App. Div. 1996); see also Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401 (App. Div. 2006) (applying McBride in concluding that a building owner owed no duty to maintain or repair an interior stairway because the lease unambiguously imposed exclusive responsibility for such repairs on the commercial tenant), certif. denied, 190 N.J. 254 (2007). A lease provision permitting, but not requiring, a commercial landlord to perform repairs, does not make the landlord liable for injuries sustained by an employee of the tenant due to a condition the tenant failed to repair. Geringer, supra, 388 N.J. Super. at 401; McBride, supra, 295 N.J. Super. at 526-27.
Here, the evidence clearly establishes that Amany's fall was due to a condition on a sidewalk within the exclusive control of her employer, the commercial tenant of JBRA, and that her employer was exclusively responsible for sidewalk maintenance pursuant to the terms of its lease with JBRA. On these dispositive points, this case is indistinguishable from McBride and Geringer. JBRA therefore cannot be liable for plaintiffs' injuries. Because JBRA had no obligation to maintain the sidewalk, it follows that MCR - the entity tasked with managing the property on behalf of JBRA - is likewise free from liability.