TINA WALDEIER VS. PIPER 1 TOWNHOUSE CONDOMINIUM ASSOCIATES(L-0555-13, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0257-16T1

TINA WALDEIER and PAUL WALDEIER,

Plaintiffs-Appellants, v.

PIPER 1 TOWNHOUSE CONDOMINIUM ASSOCIATION,

Defendant-Respondent, and

CITY OF OCEAN CITY,

Defendant. _________________________________

Argued September 27, 2017 – Decided November 22, 2017

Before Judges Alvarez, Nugent and Geiger.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L- 0555-13.

Albert J. Brooks, Jr., argued the cause for appellants (Fodera & Long, P.C., attorneys; Mr. Brooks, on the briefs).

Gregory S. Pennington argued the cause for respondent (White Fleischner & Fino, LLP, attorneys; Mr. Pennington and John J. Megjugorac, on the brief).

PER CURIAM

Plaintiffs appeal the summary judgment dismissal of plaintiff Tina Waldeier's personal injury complaint, in which she alleged defendant Piper I Townhouse Condominium Association (the Association) was liable for a defect in the sidewalk that caused her to fall from her bicycle.1 The trial court determined the condominiums governed by the Association were primarily residential. Because homeowners are not liable for defects in public sidewalks adjacent to public streets that adjoin their residences, the court dismissed plaintiff's complaint. Having reviewed the motion record de novo, we agree with the trial court's determination that the motion record presented no genuine issue of material fact. We also agree with the trial court's legal conclusions. Accordingly, we affirm the order of summary judgment.

Plaintiff commenced this action by filing a complaint against the Association, the individual owners of the thirteen condominium units in the complex, and the City of Ocean City (the City), where the condominium complex is located. During discovery, plaintiff dismissed the complaint against the individual condominium owners and settled her claim against the City. Her remaining claim

1 Paul Waldeier's per quod claim is derivative. For that reason, we use the term "plaintiff" to refer to Tina Waldeier.

2 A-0257-16T1 against the Association was resolved when the trial court granted the Association's summary judgment motion.

The summary judgment motion record, viewed in the light most favorable to plaintiff as the non-moving party, R. 4:46-2, supports the following facts.

Plaintiff was thrown from her bicycle and injured when her bike struck a defect in the sidewalk at the southeast corner of 13th Street and Haven Avenue in Ocean City. The Piper I Condominium (the Condominium) buildings are adjacent to the 13th Street and Haven Avenue sidewalks where plaintiff's accident occurred.

The sidewalks extending easterly and southerly from the southeast corner of 13th Street and Haven Avenue border the Condominium buildings, which front on Haven Avenue. The Condominium complex includes thirteen units. The unit owners make up the Association, which is a not-for-profit entity. The Condominium's Master Deed contains a restrictive covenant, which states, "[e]ach [u]nit is intended to be, and shall be, used as a private residence only." Nonetheless, unit owners are permitted to rent the units. At least two units, and possibly as many as four, were held for rent by their owners.

The record shows unresolved factual disputes about whether the sidewalk where plaintiff was injured is included in the Master

3 A-0257-16T1 Deed's description of the Condominium property, and whether it is a common element of the Condominium property. The parties based their arguments on circumstantial evidence derived from the Master Deed's references to walkways and pedestrian sidewalks, a map, and deposition testimony. Neither party provided expert testimony as to whether the sidewalk on the southeast corner of 13th Street and Haven Avenue fell within the metes and bounds description of the Condominium property. The parties disputed whether it was the City or the Association that was responsible for maintaining the sidewalk.

The record also contains conflicting evidence concerning the number of unit owners who resided in their units throughout the year. In supplemental interrogatory answers, the Association stated that five of the thirteen units were owner-occupied all year:

Units A, C, F, G and M are occupied by their owners year-round. Units D, E, I and J are rental Units and are occupied approximately 25% of the year, and Units B, H, K and L are used as second homes and are occupied approximately 10% of the year.

However, when the City cited the unit owners for code violations with respect to the adjoining sidewalk, the City served the violation notices by mailing them to each unit owner at his or her primary residence address contained in the City's property tax records. According to the tax records, only three of the unit owners resided permanently at their units.

When the trial court granted the Association's summary judgment motion, it determined the Condominium complex was predominantly residential. Owners of predominantly residential premises are not liable under current case law for injuries caused by defects in abutting public sidewalks. The court did not determine whether the abutting sidewalks were common elements of the Condominium property or what consequences flowed from such a determination.

On appeal, plaintiff argues that the Supreme Court's decision in Qian v. Toll Bros., 223 N.J. 124 (2015), decided after the trial court granted summary judgment here, requires reversal. Plaintiff contends the sidewalk where she fell was a common element of the Condominium complex, and, therefore, the Association is liable under the principles announced in Qian concerning sidewalk liability for a condominium complex's common elements. Plaintiff also argues the trial court erred by finding the Condominium complex was predominantly residential notwithstanding materially disputed facts to the contrary.

The Association claims the sidewalk where plaintiff was injured is not a common element of the Condominium, so Qian is inapposite. Alternatively, the Association argues even if the

5 A-0257-16T1 sidewalk is a common element, the facts in Qian are so distinguishable from those in this case that the Association has no liability. The Association also argues the trial court correctly determined the Condominium was predominantly residential. Lastly, the Association asserts that imposing liability would undermine the condominium form of home ownership.

Appellate courts "review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial court's determination that a party is entitled to summary judgment as a matter of law is not entitled to any "special deference," and is subject to de novo review. Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).

Applying that standard to the motion record in the case before us, we conclude the trial court correctly determined the Condominium complex was predominantly residential.

In an "unbroken series of decisions" by our Supreme Court, the "Court has maintained a distinction between commercial and

6 A-0257-16T1 residential property owners for the purpose of imposing a duty to maintain sidewalks." Luchejko v. City of Hoboken, 207 N.J. 191, 195 (2011) (citation omitted). In the Court's view, "the development of the condominium form of home ownership has done nothing to undermine the principles that support the residential/commercial dichotomy." Id. at 211. In recognizing this distinction, the Court has explained that "commonly accepted definitions of 'commercial' and 'residential' property should apply." Ibid. (quoting Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 160 (1981)). In determining that a 104-unit condominium complex was residential, the Luchejko Court noted the condominium association was a non-profit corporation whose members were the unit owners, and though fees were collected from the members, the funds were used solely for the upkeep of the property. Id. at 146, 207. Further, the Master Deed restricted the use of each unit as a private residence, although the unit owners were permitted to lease their units. Id. at 207. And though the Association was "required by its bylaws to maintain liability insurance, public sidewalks [were] not required to be covered under the Master Deed and [were] not a common element under the policy." Ibid.

Here, the trial court correctly concluded the Condominium complex was predominantly residential. In addition to the units

7 A-0257-16T1 that were owner-occupied year-round, other units were occupied during part of the year. That some units may have been used for purposes of vacation, or for some other purpose on a part-time basis, did not change the residential character of those units. Only two, perhaps four of the units were held for rental, that is, for investment purposes.

Moreover, like the condominium in Luchejko, here the Master Deed restricted the units to residential use. The Condominium complex included no retail or commercial establishment. We conclude, as did the trial judge, that the Condominium is used predominantly for residential purposes and, therefore, the Association has no sidewalk liability for plaintiff's accident and injuries.

We also reject plaintiff's argument that the Supreme Court's decision in Qian requires reversal. In that case, "a resident fell on ice on a private sidewalk within a common-interest community." Qian, supra, 223 N.J. at 127. The Court held that "[r]esidential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community." Ibid. The Court explained, "[w]ho owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk." Ibid.

Although plaintiff disputes who owns or controls the sidewalk where she fell, the evidence that the sidewalk is public, not private, is so one-sided that plaintiff must prevail as a matter of law. See Brill, supra, 142 N.J. at 540. Plaintiff's argument that the sidewalk was a common element of the Condominium is circumstantial. Plaintiff bases the argument on terminology in the Master Deed and the alleged absence of any internal sidewalks in the Condominium complex. Yet, her own deposition testimony as well as her exhibits show, indisputably, that the sidewalks along 13th Street and Haven Avenue extend well beyond the Condominium property. If the Association owned and controlled the sidewalk, it would presumably be able to exclude members of the public from the Condominium property. No one can seriously contend the Association could exclude members of the public from using the sidewalks along 13th Street and Haven Avenue.

In the present case, the sidewalk abuts the Association's property and is subject to control by the municipality. The municipality demonstrated this control over the sidewalks when it cited the unit owners for the defects in the sidewalk.

Plaintiffs emphasize the Association's repair of the sidewalk as evidence the Association controls and owns the sidewalk. However, plaintiffs overlook that:

[B]reach of an ordinance directing private persons to care for public property "shall be remediable only at the instance of the municipal government . . . and that there shall be no right of action to an individual citizen especially injured in consequence of such breach. The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property-owners to maintain sidewalk pavements or to remove ice and snow from the walks."

[Luchejko, supra, 207 N.J. at 200 (quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 352 (E. & A. 1902)) (bolded emphasis added).]

N.J.S.A. 40:65-14 authorizes municipalities to make it the duty of abutting landowners to maintain a curb or sidewalk. Stewart, supra, 87 N.J. at 155. By adopting an ordinance as authorized by this statute, however, the municipality does not impose tort liability on the abutting landowners for defects in the sidewalk. Therefore, the Association's repair of the sidewalk is not dispositive of ownership.

The Condominiums are predominantly residential, and the abutting sidewalks along 13th Street and Haven Avenue are public sidewalks. For these reasons, we affirm the trial court's order of judgment.

Affirmed.

Footnotes

[4] A-0257-16T1

[8] A-0257-16T1

[9] A-0257-16T1

[10] A-0257-16T1