VALERIANA IXCOY VS. MOHAMMED MOHOSIN(L-3591-14, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4287-15T1
VALERIANA IXCOY,
Plaintiff-Appellant,
v.
MOHAMMED MOHOSIN and RUZI
BEGYM-MOHOSIN,1
Defendants-Respondents,
and
DEF INSURANCE COMPANY,
Jointly, Severally or
in the Alternative,
Defendants.
__________________________________
Argued May 24, 2017 – Decided June 30, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
3591-14.
Kristian A. Krause argued the cause for
appellant (Goldstein, Ballen, O'Rourke &
Wildstein, attorneys; Ms. Krause, of counsel
and on the brief).
1
Ruzi Begum-Mohosin was improperly pleaded as Ruzi Begym Mohosin.
Harry D. Norton, Jr. argued the cause for
respondents (Norton, Murphy, Sheehy &
Corrubia, P.C., attorneys; Mr. Norton, of
counsel; Jessica J. Centauro-Petrassi, on the
brief).
PER CURIAM
Plaintiff Valeriana Ixcoy appeals from an order granting
summary judgment in favor of defendants Mohammed Mohosin and Ruzi
Begum-Mohosin. After consideration of the record, and in light
of our standard of review and applicable law, we reverse and remand
for further proceedings.
I.
The following facts are derived from the evidence submitted
by the parties in support of, and in opposition to, the summary
judgment motion, viewed in a light most favorable to plaintiff.
Polzo v Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
Defendants purchased a residential, three-family house
located at 22 Sheridan Avenue in Paterson (the property) in 2003.
Sheridan Avenue is a residential street consisting of additional
three-family houses. Since the purchase of the property,
defendants have resided on the first floor. Defendant Mohammed
Mohosin contends that he maintained the property by way of cutting
the grass, shoveling snow and applying salt afterward, among other
duties. Within the same year, defendants rented out the second
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and third floors of the property. Those floors have been
continuously rented thereafter, except for gaps of tenancy
totaling less than six months. The first and second floors of the
property are each 850 square feet consisting of a kitchen, a living
area, two bedrooms and one bathroom. The third floor is 600 square
feet consisting of a kitchen, a living area, one bedroom and one
bathroom.
The second floor tenants began their tenancy in 2008, at a
monthly rent of $950. The third floor tenants began their tenancy
in September 2013, at a monthly rent of $800.
II.
On the date of the underlying incident, plaintiff resided in
a three-story house located on the same street as defendants'
property. On February 18, 2014, plaintiff left her home at 6:30
a.m. At that time, it was dark and lightly snowing with
approximately two-to-three inches of snow on the sidewalk along
Sheridan Avenue. As plaintiff walked past the property to meet a
driver who was taking her to work, she slipped and fell on the
sidewalk. Plaintiff got up and continued on her way. Defendants
were first made aware of plaintiff's fall when they received a
letter from plaintiff's attorney in June 2014.
3 A-4287-15T1
III.
On September 29, 2014, plaintiff filed a personal injury
complaint for injuries she alleged to have sustained in the slip
and fall. At the conclusion of discovery, defendants filed a
motion for summary judgment, arguing that the property was
residential at the time of the incident, therefore, no duty was
owed to plaintiff. In an accompanying written statement of reasons
attached to the order granting summary judgment, the judge held
the property was residential in use.
Applying the factors we listed in Grijalbo v. Floro, 431 N.J.
Super. 57 (App. Div. 2013), the judge found that there was no
evidence adduced during discovery to demonstrate defendants: used
the property to generate profits; owned the property as an
investment; or used the property as a commercial space under the
commonly accepted definition of "commercial." The judge further
found that the property was primarily used as defendants' residence
and the tax returns provided in discovery revealed little to no
profit generated from rental income. As such, the judge concluded
that summary judgment was appropriate. This appeal followed.
Plaintiff raises the following points on appeal:
POINT I
THE LEGAL CLASSIFICATION OF AN OWNER-OCCUPIED
THREE[-]FAMILY HOME AS RESIDENTIAL OR
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COMMERCIAL IS DETERMINED BASED ON A CASE-BY-
CASE, TOTALITY OF THE CIRCUMSTANCES TEST.
POINT II
IN LIGHT OF THE GRIJALBA FACTORS, DEFENDANTS
DO NOT MEET THE STANDARD FOR SUMMARY JUDGMENT
SET FORTH IN R. 4:46-2. SUMMARY JUDGMENT
SHOULD THEREFORE HAVE BEEN DENIED.
A. THE EVIDENCE PRODUCED BY
DEFENDANTS REQUIRES THE WEIGHING OF
EVIDENCE AND AN INQUIRY INTO
CREDIBILITY THAT SUMMARY JUDGMENT
IS NOT SUITED FOR.
B. DEFENDANTS DID NOT PROVIDE ALL OF
THE REQUESTED TAX RETURNS AND THE
THREE YEARS OF INFORMATION PROVIDED
IS NOT A SUFFICIENT AMOUNT OF
INFORMATION FOR THE COURT TO ENGAGE
IN A SUMMARY JUDGMENT ANALYSIS.
POINT III
ALTERNATIVELY WITH ALL INFERENCES OF DOUBT
FOUND IN PLAINTIFF'S FAVOR, THE FACTS BEFORE
THIS COURT ARE INSUFFICIENT TO DETERMINE THAT
THE PROPERTY IS RESIDENTIAL IN NATURE AS A
MATTER OF LAW.
A. THE NATURE OF THE OWNERSHIP OF
THE PROPERTY IS COMMERCIAL.
B. THE PREDOMINANT USE OF THE
PROPERTY IS COMMERCIAL.
C. THE PROPERTY HAS THE CAPACITY TO
GENERATE INCOME.
D. OTHER RELEVANT FACTORS
DEMONSTRATE THAT THE PROPERTY IS
COMMERCIAL AS A MATTER OF LAW.
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Residential property owners are not liable for sidewalk
injuries. Luchejko v. City of Hoboken, 207 N.J. 191, 195 (2011).
Conversely, commercial property owners have a duty to maintain
sidewalks that abut their property and are liable for injuries
suffered as a result of their negligent failure to do so. Stewart
v. 104 Wallace St., Inc., 87 N.J. 146 (1981).
In Grijalba, supra, 431 N.J. Super. at 57 (App. Div. 2013),
we directed trial courts to consider, at a minimum, four factors
in a "totality of circumstances" test when classifying a property
as either "commercial" or "residential."
(1) The nature of the ownership of the
property, including whether the property is
owned for investment or business purposes;
(2) The predominant use of the property,
including the amount of space occupied by the
owner on a steady or temporary basis to
determine whether the property is utilized in
whole or in substantial part as a place of
residence;
(3) Whether the property has the capacity to
generate income, including a comparison
between the carrying costs with the amount of
rent charged to determine if the owner is
realizing a profit; and
(4) Any other relevant factor when applying
commonly accepted definitions of commercial
and residential property.
[Id. at 73.]
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In Luchejko, the Court cited to cases that focused on either
the nature of the ownership or the property's use. The Court
cited Wilson v. Jacobs, 334 N.J. Super. 640 (App. Div. 2000)
(owner-occupied) focused on the nature of the ownership; Wasserman
v. W.R. Grace & Co., 281 N.J. Super. 34, 37, 39 (App. Div. 1995)
(owner-occupied) focused on use; Avallone v. Mortimer, 252 N.J.
Super. 434 (App. Div. 1991) (owner-occupied) focused on use;
Borges v. Hamed, 247 N.J. Super. 295 (App. Div. 1991) (owner-
occupied) focused on use; Hambright v. Yglesias, 200 N.J. Super.
392 (App. Div. 1985) (non-owner occupied) focused on profit; and
Abraham v. Vijay Gupta, 281 N.J. Super. 81 (App. Div. 1995) (non-
owner occupied) focused on nature of ownership. Luchejko, supra,
207 N.J. at 206.
In Grijalba, we explained that "[n]ormally, the nature of the
ownership is considered, but with mixed-use property, such as an
owner-occupied two or three-family home, use has generally been a
relevant consideration when resolving the residential-commercial
distinction. We stated that the theme emerging from our decisions
in such matters is 'whether a property's predominant use has the
capacity to generate income, regardless of whether an actual profit
is obtained through the use.'" Grijalba, supra, 431 N.J. Super. at
65 (citing Luchejko, supra, 207 N.J. at 206).
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Our review of a ruling on summary judgment is de novo,
applying the same standard as the trial court. Townsend v. Pierre,
221 N.J. 36, 59 (2015) (citing Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment must be granted
if 'the pleadings, depositions, answers to interrogatories[,] and
admissions on file, together with the affidavits, if any, 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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013)
(quoting R. 4:46-2(c)). The court first decides whether there was
a genuine issue of material fact. If not, the court then decides
whether the trial court's ruling on the law was correct. Walker
v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div.
1987).
Here, the judge appropriately addressed the Grijalba factors
in reaching her determination. We take no issue with the judge's
consideration of those factors, but do take issue with the
evaluation of the factors based upon the factual record.
Similar to Avallone, this is a hybrid case where the owners
reside in a three-family residence which abuts the sidewalk at
issue. Unlike Grijalba, there is no issue whether defendants used
the house as a place of residence; they did. However, in
determining the property's use in the context of "residential" or
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"commercial," the inquiry does not end there. Given that the
majority of the house was tenant-occupied, the judge must determine
whether the property's predominant use was as an income producing
property which preponderated the defendants' residency. Avallone,
supra, 252 N.J. Super. at 438.
Also, we are not confident that the resort to three years
of defendants' income tax returns is dispositive of the property's
capacity to generate income insofar as what was reported was a
reliable indicator of defendants' realization of profits.2 The
tax returns, which are hearsay per N.J.R.E. 802 and may be
otherwise unreliable as essentially self-reported, should be
subjected to scrutiny; especially predicated upon their use in a
summary dismissal of plaintiff's cause of action. Whether that
scrutiny takes the form of additional discovery of supplemental
records to support what was reported on the returns, additional
tax returns, a testimonial hearing where issues of credibility may
be determined or a combination thereof, we leave to the discretion
of the Law Division.
We conclude our discussion by observing that the policy
considerations enunciated in Stewart and Luchejko involve the
financial implications of cost-sharing by a commercial property
2
Plaintiff argues that the "quantity" of the returns was
insufficient for a determination as well.
9 A-4287-15T1
owner relative to their duty to provide a remedy to innocent third
parties. Luchejko, supra, 207 N.J. at 203-04. In order to
evaluate whether defendants possess the ability to share in those
costs, revenue produced by the property is a salient consideration.
On this record, we hold a reviewing court would be unable to
conclude whether defendants possess that ability.
We close by adding that in reaching our decision we express
no opinion as to the property's status.
Reversed and remanded. We do not retain jurisdiction.
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