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Carman v. Estate of Dunkel

Superior Court of New Jersey, Appellate Division

July 9, 2013

DOROTHY CARMAN, Plaintiff-Appellant,
v.
ESTATE OF GEORGE AND HELEN DUNKEL, BOROUGH OF TENAFLY and BUY-GONE TRADING, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2012

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1748-09.

Kelly A. Conlon argued the cause for appellant (Law Offices of Rosemarie Arnold, attorneys; Ms. Conlon, on the brief).

Robert F. Colquhoun, II, argued the cause for respondent Estate of George and Helen Dunkel (Colquhoun & Colquhoun, P.A., attorneys; Mr. Colquhoun, on the brief).

Robert Zimmerer argued the cause for respondent Borough of Tenafly (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Zimmerer, of counsel and on the brief).

Anthony J. Accardi argued the cause for respondent Buy-Gone Trading (Accardi & Mirda, P.C., attorneys; Mr. Accardi, of counsel and on the brief).

Before Judges Fuentes, Graves, and Harris.

PER CURIAM

In this personal injury action, plaintiff Dorothy Carman alleges that she tripped and fell while walking to attend a private estate sale conducted by Buy-Gone Trading, as the agents for the Estate of George and Helen Dunkel. Plaintiff sued Buy-Gone Trading, the Estate of Dunkel, and the Borough of Tenafly, claiming that the area where she fell was owned or controlled by one or more of these parties.

On May 19, 2010, after more than one year of discovery time had elapsed, the parties entered into a formal stipulation pursuant to Rule 4:37-1(a), dismissing all claims against the Borough of Tenafly. On September 29, 2010, the estate received a report from an engineering firm retained to ascertain the exact location where plaintiff fell. The engineer concluded that plaintiff fell on the right-of-way of the street, placing the site of the accident on property owned and controlled by the Borough of Tenafly. The engineer based his conclusion on plaintiff's deposition testimony describing the area where the accident occurred, including a photograph depicting the area in which plaintiff placed several markings identifying the location where she fell.

Based on this information, the trial court granted Buy-Gone Trading's and the Estate of Dunkel's summary judgment motions and dismissed plaintiff's complaint against these parties. The trial court also denied plaintiff's motions to reinstate her complaint against the Borough and to extend the time for discovery. Plaintiff now appeals from these rulings. We affirm.

Because the trial court dismissed plaintiff's case as a matter of law, we will consider all of the relevant facts in the light most favorable to plaintiff, including any inferences that may rationally be drawn from such facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

I

At approximately 3:30 p.m., on Friday, June 8, 2007, plaintiff and her husband drove to a residence on Hudson Avenue in Tenafly to attend an estate sale plaintiff learned about from an announcement in the Bergen Record. The event was scheduled to start at approximately ten in the morning and end at around four o'clock in the afternoon. Plaintiff had never been on Hudson Avenue before that day. Plaintiff's husband parked the car in front of the house that was hosting the estate sale. Plaintiff described the weather conditions that day as a "beautiful" day.

As she walked from the car, she looked down and noticed the following: "[G]arden debris, debris, things from the trees that fall down from the trees. . . . There's a lot of [debris], and if there's tiny roots as big as a shoestring, and these cover it up and you don't see it, you don't see because it's obscured and don't expect it." As she walked from the car, she felt her "foot come in contact with something." She felt as if she was being "held and couldn't go forward, and it happened so fast that [she] fell on [her] knee and could not regain [her] composure." When asked directly at her deposition if she ...


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