DIANE J. KECHEJIAN VS. WANAQUE RESERVE CONDOMINIUM ASSOCIATION, INC. VS. TICO'S LANDSCAPING (L-2085-16, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4397-17T1
DIANE J. KECHEJIAN and
GREGORY KECHEJIAN,
her spouse,
Plaintiffs-Appellants,
v.
WANAQUE RESERVE
CONDOMINIUM ASSOCIATION,
INC., FIRST SERVICE
RESIDENTIAL MIDATLANTIC,
LLC, LAN EXTERIOR CONSULTING,
LLC a/k/a LAN EXTERIORS, TICO'S
LANDSCAPING, and TICO'S
LAWN CARE, LLC,
Defendants-Respondents,
and
LAN EXTERIOR CONSULTING,
LLC, a/k/a LAN EXTERIORS,
Third-Party Plaintiff,
v.
TICO'S LANDSCAPING,
TICO'S LAWN CARE, LLC,
and PLANNED SECURITY
SERVICES, INC.,
Third-Party Defendants-
Respondents.
_____________________________
Argued June 5, 2019 – Decided August 21, 2019
Before Judges Nugent and Reisner.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2085-16.
Lisa A. Lehrer argued the cause for appellants (Davis,
Saperstein & Salomon, PC, attorneys; Lisa A. Lehrer,
of counsel and on the brief; David A. Drescher, on the
brief).
Joao M. Sapata argued the cause for respondents
Wanaque Reserve Condominium Association, Inc. and
First Service Residential MidAtlantic, LLC (Tango,
Dickinson, Lorenzo, McDermott & McGee, LLP,
attorneys; Joao M. Sapata, on the brief).
Thomas E. Emala argued the cause for respondent
Planned Security Services, Inc. (McGivney, Kluger &
Cook, PC, attorneys; William D. Sanders and Emily R.
Weisslitz, of counsel and on the brief; Thomas E.
Emala, on the brief).
PER CURIAM
Plaintiff Diane J. Kechejian, a unit owner of a condominium in the
Wanaque Reserve Condominium complex, appeals the summary judgment
dismissal of her personal injury action, which arose when she slipped and fell in
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a common area of the complex.1 She also appeals an interim order that denied
her cross-motion to file a fourth amended complaint and add an additional
defendant.
Defendant Wanaque Reserve Condominium Association, Inc.'s by-laws
immunize the Association from liability to unit owners for bodily injury
occurring on the Association's common elements. The relevant by-law excepts
cases of bodily injury caused by the Association's willful, wanton, or grossly
negligent acts. The trial court granted the Association's summary judgment
motion after determining the evidence on the motion record did not establish a
triable issue as to whether the Association acted in a grossly negligent, willful,
or wanton manner. Finding no error in the trial court's decision, and finding no
abuse of discretion in the trial court's denial of plaintiff's cross-motion to amend
the complaint, we affirm.
1
Gregory Kechejian alleged in the complaint he had been deprived of the
services and consortium of his wife, Diane J. Kechejian. Because his claim is
derivative, and for ease of reference, in this opinion we refer to Diane J.
Kechejian as plaintiff.
A-4397-17T1
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I.
A.
This action's history is relevant to the procedural issue plaintiff argues on
appeal. Plaintiff fell and was injured on June 18, 2015, and commenced this
action a year later, on June 9, 2016. The complaint named as defendants the
Association; its management company, FirstService Residential New York, Inc.
(FirstService); and its landscape and snow removal contractor, Lan Exterior
Consulting, LLC (Lan). The complaint also named a number of fictitious
persons and entities. Upon the complaint's filing, the trial court issued a track
assignment notice that fixed 300 days for discovery.
During discovery, plaintiff amended her complaint three times: first to
correct a party's name, next to add an allegation the Association was grossly
negligent, and last to add Lan's snow removal subcontractor, Tico's Lawn Care
Limited Liability Company (Tico), as a defendant. One and one-half years after
the action commenced, Lan filed a motion to file a third-party complaint against
the Association's security company, Planned Security Services, Inc. (Planned
Security). Plaintiff cross-moved to file a fourth amended complaint to substitute
Planned Security for a fictitiously named defendant. Plaintiff filed the cross-
motion on December 27, 2017, and it was returnable January 5, 2018. The
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discovery end date was February 27, 2018, and arbitration was scheduled for
March 9, 2018.
The trial court denied both motions. Acknowledging that motions to
amend pleadings are to be liberally granted, the court determined that granting
the motion when the parties already had more than 500 days of discovery would
unduly delay the action's resolution. The order denying the motions was dated
February 8, 2018.
Meanwhile, on February 2, 2018, plaintiff had filed a motion to re-open
and extend discovery and to adjourn the March 9, 2018 arbitration. Plaintiff's
liability expert had died. Lan filed a cross-motion in which it argued that if the
court granted plaintiff's motion to extend discovery, the court should reconsider
its decision denying Lan's motion to file a third-party complaint against Planned
Security. Plaintiff, however, neither filed a motion to implead Planned Security
nor asked for reconsideration of its previously denied cross-motion.
On March 8, 2018, the court granted plaintiff's motion to re-open
discovery. The court extended discovery through May 1, 2018. In the same
order, the court cancelled the scheduled arbitration, set deadlines for additional
expert reports, and fixed the trial date as May 14, 2018. The court granted Lan's
motion to file a third-party complaint against Planned Security.
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The case was not tried. The Association and the other defendants filed
summary judgment motions. 2 On April 23, 2018, the trial court granted
summary judgment to the Association and FirstService. The court dismissed the
complaint and all cross-claims against those entities. This appeal followed.
B.
Construed in the light most favorable to plaintiff as the non-moving party,
Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018), the
motion establishes the following material facts. Plaintiff and her husband owned
a unit in the condominium complex operated by the Association. The
condominium complex was an "over [fifty-five] planned community." Unit
owners were permitted to have pets and the condominium development included
certain areas where owners could walk their dogs.
The Association's by-laws included the following immunity provision:
Article XVI. Tort Immunity
In accordance with N.J.S.A. 2A:62A-13, the
Association will not be liable in any civil action
brought by or on behalf of the Unit Owner to respond
to damages as a result of bodily injury to the Unit
Owner occurring on the Association's Common
Elements. This grant of immunity from liability will not
2
Plaintiff has not appealed the summary judgment dismissal of its complaint
against Lan and Tico.
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be effective if the Association causes bodily injury to
the Unit Owner on the premises by its willful, wanton
or grossly negligent act of commission or omission.
Plaintiff's accident occurred at approximately 8:45 a.m. on Sunday,
January 18, 2015. Plaintiff had exited her building's parking garage and begun
to walk on the driveway when she slipped and fell on ice.
The Association had contracted with Lan to perform snow and ice
removal. Lan subcontracted the snow removal to Tico's Lawn Care. Because
no managerial or maintenance personnel are on site during weekends, "it is up
to the security guard at the gate entrance to the property to contact the snow
removal contractor if necessary."
Security guard personnel are stationed in a gatehouse at the entrance to
the condominium development. The guards do not walk the property. Rather,
they remain at the gatehouse, which is not near the area where plaintiff fell.
On a weekend, if a security guard decided it was necessary to contact the
snow removal contractor, the guard would call a Lan supervisor. Lan would not
perform snow or ice removal at the condominium complex unless the security
guard first notified LAN that such work was needed.
According to an expert meteorologist's report, the following weather
conditions were relevant to plaintiff's fall:
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On January 18, 2015, no snow or ice cover was present
at the start of the day (midnight). Precipitation in the
form of freezing rain and/or sleet fell frequently from
around 7:46-8:00 AM EST to 3:00-4:00 PM EST. After
3:00-4:00 PM EST, precipitation fell frequently in the
form of rain to around 6:25-7:10 PM EST and then
intermittently to around 7:55-8:40 PM EST.
Approximately 0.2 inch of ice accumulated on this day.
Due to melting and compaction, a trace (less than 0.1
inch) or patches of ice cover was present at the end of
the day. The high temperature was near 35 F and the
low temperature was near 19 F.
The Association's employee who was responsible for property
management was on vacation in another state on the day plaintiff fell.
Nevertheless, at 10:14 a.m., she emailed Lan and inquired where they were. She
"was advised that Lan was still three hours away."
Lan's president testified at depositions that Lan would notify Tico's if Lan
received notification from a guard at the condominium's gatehouse that snow
removal services were necessary. According to the deposition testimony of a
Lan representative, Lan telephoned Tico's at 4:17 p.m. on the date of plaintiff's
accident.
II.
Plaintiff first contends the trial court erred by granting summary judgment
to the Association and FirstService because the factual record established a
prima facie case of gross negligence. Plaintiff adds that the trial court
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improperly relied upon unpublished and distinguishable case law in reaching its
decision, and improperly drew conclusions concerning the motives of the
Association and FirstService.
We need not address plaintiff's contentions about the trial court
improperly relying upon unpublished case law and motive evidence, because our
review of an order granting summary judgment is de novo. 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). Our function is not "to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); accord, R. 4:46-
2(c). We view competent evidential materials presented in the light most
favorable to the non-moving party. R. 4:46-2(c); Brill, 142 N.J. at 540. 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, Inc. v. Adria Towers, L.L.C., 226 N.J. 403,
415 (2016) (citation omitted).
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With that standard in mind, we turn to the primary issue: whether plaintiff
established a prima facie case of gross negligence. We conclude she did not.
"The tort of gross negligence falls on a continuum between ordinary
negligence and recklessness, a continuum that extends onward to intentional
conduct." Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363 (2016)
(citing Introductory Notes, Model Jury Charge (Civil) § 5.12 "Gross
Negligence" (approved Feb. 2004))
. Thus, "[w]hereas negligence is 'the failure to exercise ordinary or
reasonable care' that leads to a natural and probable injury, gross negligence is
'the failure to exercise slight care or diligence.'" Id. at 364 (quoting Introductory
Notes, Model Jury Charge (Civil) § 5.12 "Gross Negligence" (approved Feb.
2004)). Gross negligence is more than inattention or mistaken judgment. Ibid.
Contrary to plaintiff's argument, the motion record does not demonstrate
that Wanaque and FirstService failed to exercise "slight care or diligence." The
Association had a snow and ice removal company under contract to provide
services as necessary. The Association also had a procedure in place whereby
its security guards would notify the snow removal contractor if the services of
the latter were needed. Moreover, on the day of plaintiff's accident, the freezing
rain or sleet did not begin to fall until about 7:45 or 8:00 a.m., one hour or less
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before plaintiff fell. Additionally, the precipitation in the form of sleet or rain
continued to fall until 3:00 in the afternoon or later. Even if the security
guard had notified Lan the instant precipitation began to fall, it is questionable
whether Lan could have responded and reached the specific area where plaintiff
fell within an hour. It is also questionable in view of the continuously falling
precipitation whether Lan's services would have prevented the condominium
driveway from being slippery.
Plaintiff emphasizes certain events that occurred after she fell, including
conflicting evidence about when the security guard notified the snow removal
contractor. Those events, however, could not have proximately caused
plaintiff's accident.
In view of the systems the Association had in place to address snow and
ice on its premises when required, and given the timeline between the onset of
precipitation and plaintiff's fall, the record does not demonstrate, as plaintiff
argues, that the Association and FirstService failed to exercise slight care o r
diligence, that is, they were grossly negligent. Plaintiff did not establish a triable
issue of gross negligence. Accordingly, we affirm the grant of summary
judgment.
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III.
Except for the following brief comments, plaintiff's second argument—
the trial court erred in denying its motion to file a fourth amended complaint to
add Planned Security —is without sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E).
We review a trial court's grant or denial of a motion to amend a complaint
for abuse of discretion. Kernan v. One Wash. Park Urban Renewal Assocs., 154
N.J. 437, 457 (1998). The trial court did not abuse its discretion when it initially
denied plaintiff's motion to file yet a fourth amended complaint as the extended
discovery end date neared. Adding another party would have unduly prolonged
resolution of the matter.
Plaintiff criticizes the trial court for granting Lan's subsequent motion to
file a third-party complaint and not permitting her to file a fourth amended
complaint. The argument is without merit. Plaintiff never filed a motion for
reconsideration after discovery was extended so that she could retain a new
expert. Presumably the court would have granted plaintiff's motion had she filed
it. It is fundamental that "[a]n application to the court for an order shall be by
motion[.]" R. 1:6-2(a). Here, when circumstances changed, unlike Lan, plaintiff
did not apply to the court to amend its complaint by filing a motion. The trial
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court can hardly be accused of abusing its discretion for failing to decide a
matter that was not before it.
For the foregoing reasons, the trial court's orders are affirmed in their
entirety. Affirmed.
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