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Frank Ozello, Jr., By His Father and Guardian Ad Litem, Frank Ozello v. Jason Cyrus

January 22, 2013

FRANK OZELLO, JR., BY HIS FATHER AND GUARDIAN AD LITEM, FRANK OZELLO, SR., AND FRANK OZELLO SR., INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JASON CYRUS, THE TOWNSHIP OF NEW BRUNSWICK, WILLIAM H. PETRY, JR., JOSEPH CARLINO, MATTHEW LANDIS AND MICHAEL ST. PIERRE, DEFENDANTS-RESPONDENTS, AND HOMESITE INSURANCE COMPANY, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8717-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued May 16, 2012

Before Judges Messano, Yannotti and Espinosa.

Plaintiff*fn1 appeals from orders that granted summary judgment to defendants City of New Brunswick (the City) and Joseph Carlino, Matthew Landis, and Michael St. Pierre (collectively, tenants or tenant defendants), and dismissed plaintiff's complaint with prejudice.

Plaintiff was a guest of Landis and Carlino on September 13, 2008, when he fell from the second-story landing of a wooden staircase leading to the backyard. He was seriously injured, fracturing several bones and falling into a coma.

Plaintiff filed a negligence action against Jason Cyrus, the owner of the apartment, in October 2008, and later obtained a default judgment against Cyrus for $2,350,000. Plaintiff was granted summary judgment as to Homesite Security, Inc., Cyrus's homeowner's insurance carrier, in a consolidated matter.

Plaintiff also amended the complaint to include claims of negligent hiring, supervision and retention against the City,*fn2 and a claim of negligence against the tenants. The City and the tenants filed motions for summary judgment, which were granted by the court.

In this appeal, plaintiff argues that the trial court erred in granting summary judgment to the City because immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, did not apply to his claims, and the City is liable for its negligent hiring, retention, supervision and training of the housing inspectors here. He also contends that the court erred in granting summary judgment to the tenant defendants because they had a duty to prevent him from "encountering the dangerous condition of the porch and railing of their rented premises." For the reasons that follow, we affirm.

I

In our review of an order granting summary judgment, we apply the same standard of review as the trial court. Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009). Summary judgment is appropriate if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

II

Plaintiff alleged that the City was negligent in failing to properly train and supervise housing inspectors Thomas Boylan and Sherriann Miller and that, as a result, the dangerous condition that caused his injury was permitted to exist. The evidence regarding the municipal inspections of the property, ...


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