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David Ayala v. West First Roselle

August 27, 2012

DAVID AYALA, PLAINTIFF-APPELLANT,
v.
WEST FIRST ROSELLE, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
TLMORE, INC. D/B/A TOP LINE, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7233-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges J. N. Harris and Fasciale.

Plaintiff appeals from a November 29, 2011 order granting summary judgment dismissing his complaint arising out of injuries he sustained when he fell in a parking lot of property owned by defendant West First Roselle, LLC (WFR), and leased to plaintiff's employer, third-party defendant TLMORE, Inc., d/b/a Top Line (Top Line). We affirm.

The record contains the following relevant facts, which we view in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Top Line operated an appliance business and employed plaintiff as a deliveryman. Top Line leased the building and parking lot (the Premises) from WFR "as is"; however, pursuant to paragraph six of the Lease, WFR continued to occupy the following areas: the back office including the "safe" storage closet; the storage room on the second floor; the northeast corner of the parking lot[,] which measures one hundred thirty-five (135) feet long by fifty (50) feet wide; and one-half (1/2) of the entire width of the southern portion of the parking lot from the property line to a depth of forty (40) feet.

Plaintiff certified that he "was walking in [the] parking lot of the [P]remises [and] was pulling a large refrigerator when he fell in the driveway." It is undisputed that the accident occurred in that part of the parking lot leased by Top Line. The accident occurred six months after the Lease became effective, and there are no facts to suggest that during the lease term WFR caused or contributed to any unsafe conditions in the parking lot leased by Top Line.

In September 2011, plaintiff filed a motion seeking declaratory relief that the Lease "does not insulate [WFR] from liability." Plaintiff argued that WFR owed him a duty of care because the Premises were not "wholly demised." In October 2011, WFR filed its motion for summary judgment.*fn1 WFR contended that it was entitled to summary judgment because the accident occurred on property occupied by Top Line pursuant to a "triple net" lease.*fn2

On November 18, 2011, Judge Rachel N. Davidson conducted oral argument, denied plaintiff's motion, and granted summary judgment to WFR. On November 29, 2011, Judge Davidson issued a six-page oral opinion and stated:

It is established, for purposes of this motion, that [Top Line] leased the premises in question under a triple net lease. [WFR] alleged that the contract in question was a triple net lease in its statement of material facts, which was not disputed by plaintiff.

In addition, [WFR] presented [Top Line] with a request that it admit that the contract in question was a triple net lease, which was admitted by default.

There are no facts in dispute.

The only question for the [c]court to resolve is whether the terms of the triple net lease in this case ...


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