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Dr. Samuel Verghese and Rita Verghese v. Comcast of Garden State

July 18, 2012

DR. SAMUEL VERGHESE AND RITA VERGHESE, PLAINTIFFS-APPELLANTS,
v.
COMCAST OF GARDEN STATE, L.P.,*FN1 DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2810-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 16, 2012

Before Judges Waugh and St. John.

Plaintiff Samuel Verghese appeals from a March 25, 2011 trial court order granting defendant Comcast of Garden State, L.P.'s (Comcast) motion for summary judgment and dismissing his complaint with prejudice.*fn2 After reviewing the record in light of the contentions advanced on appeal, we are satisfied the trial court's conclusions were correct and should be affirmed.

I.

The record discloses the following facts and procedural history.

At approximately 10:30 p.m. on June 3, 2008, during a torrential rainstorm, plaintiff parked his car at the curb in the cul-de-sac in front of his Glendora home. As he walked to his home, his leg got tangled in a black wire and he fell, injuring himself. When asked if he knew who the wire belonged to, plaintiff responded, "Yes, to some degree, because I [saw] PSE&G and Comcast trucks come and go." Plaintiff further stated that he had seen the wire laying there many times before the night of the accident and that he associated Comcast and PSE&G with that wire. Plaintiff also admitted he knew he had been injured when he fell, although he did not know the extent of his injuries at that time.

Plaintiff filed his complaint against Comcast on June 4, 2010. On March 10, 2011, Judge Stephen M. Holden conducted a Lopez*fn3 hearing at which plaintiff testified as to the events leading to his injury and the extent of his injury. After the testimony, the judge granted Comcast's motion for summary judgment for failure to comply with the two-year statute of limitations pursuant to N.J.S.A. 2A:14-2.*fn4 The judge stated, "It's clear to the court from the testimony that the plaintiff knew he was injured on June 3rd, and he knew that either Comcast or PSE&G were the tortfeasors." He also found that the complaint was filed two years and one day after the incident, falling outside the statute of limitations.

II.

On appeal, plaintiff argues the trial court erred in not applying the discovery rule, as articulated in Lopez, for purposes of the statute of limitations; that the trial court further erred in concluding that there did not exist a genuine issue of material fact; and finally, that the interests of justice demand the trial court not grant summary judgment.

We note first the standard governing our review of a trial court's award of summary judgment. When reviewing such a grant, the Appellate Division employs the same standard as the trial judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citations omitted). First, we must decide whether there was a genuine issue of material fact. If there was not, then we must decide whether the trial judge correctly applied the law. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006) (citations omitted). Because this case arises on a motion for summary judgment, we consider the facts in the light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2.

The motion judge's conclusion on an issue of law is accorded no deference and is reviewed de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007) (citing Manalapan Realty, L.P. ...


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