SCOTT VALENTINE VS. MAXIMO ALMANZARÂ (L-5292-14, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2207-15T4
SCOTT VALENTINE,
Plaintiff-Appellant,
v.
MAXIMO ALMANZAR and
ANA ALMANZAR,
Defendants-Respondents.
______________________________
Argued telephonically February 21, 2017 –
Decided June 12, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-5292-14.
Christina A. Vergara argued the cause for
appellant (Alonso & Navarrete, L.L.C.,
attorneys; Ms. Vergara, of counsel and on the
briefs).
Monique Moreira argued the cause for
respondents (Moreira & Moeira, P.C.,
attorneys; Ms. Moreira, on the brief).
PER CURIAM
In this slip and fall case, plaintiff Scott Valentine appeals
from the January 8, 2016 Law Division order, which granted summary
judgment to defendants Maximo and Ana Almanzar and dismissed the
complaint with prejudice. The issue is whether defendants had a
legal duty to remove snow and ice from the public sidewalk abutting
their three-family home. We conclude that because the property
was residential, not commercial, summary judgment was properly
granted.
We derive the following facts from the evidence submitted in
support of, and in opposition to, the summary judgment motion,
viewed in a light most favorable to plaintiff. Angland v. Mountain
Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v.
Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
Defendants have resided in their three-family home since
1992, and purchased it in 1994. They have a mortgage on the
property, which would be paid in full in five years of the summary
judgment motion. Defendants reside in one of the apartments and
rent the other two apartments to non-relative tenants under written
leases. Defendants receive rent totaling $3010 per month. There
was no evidence that defendants or their tenants used the property
for office or business purposes.
Maximo was disabled and received disability benefits, while
Ana was employed and had a net income of approximately $210 per
week. Defendants used the rent money to pay the property's
carrying charges of $2913 per month, consisting of the mortgage,
2 A-2207-15T4
taxes, and insurance. This left $97 per month for maintenance and
repair expenses, including replacing or repairing damages on the
property and walkway, purchasing salt to be used on the sidewalk,
and making repairs inside the building. Because $97 did not cover
all repair and maintenance expenses, defendants used their
personal funds for these purposes.
On February 19, 2014, plaintiff allegedly sustained injuries
when he slipped and fell on ice or snow on the public sidewalk
abutting defendants' property. He filed a complaint against
defendants, asserting, in part, that they breached their duty to
maintain the sidewalk in a safe condition.
Following the completion of discovery, defendants filed a
motion for summary judgment, arguing that as residential
homeowners, they had no duty to clear snow and ice on the public
sidewalk abutting their property. Applying the factors set forth
in Grijalba v. Floro, 431 N.J. Super. 57, 73 (App. Div. 2013), the
motion judge found that defendants owned the property and occupied
one-third of it; there were no commercial entities at the property;
there were additional repair expenses not covered by the rental
income; and this was not a profit-generating apartment building.
Citing Borges v. Hamed, 247 N.J. Super. 295, 296 (App. Div. 1991),
the judge found that defendants' property was not a commercial
venture, and granted summary judgment to defendants.
3 A-2207-15T4
On appeal, plaintiff argues that the judge misapplied
Grijalba in balancing the predominate use of the property as an
income-generating venture, and disregarded the property's capacity
to generate income and earn significant profit after the mortgage
was satisfied. Plaintiff argues that the judge improperly applied
Borges because unlike Borges, defendants occupied only one unit
of a three-family home; rented the other two units to non-relative
tenants at fair market value; and received rental income greater
than the monthly carrying charges with profit that covered those
charges. Plaintiff also argues that the judge considered mere
conjecture in finding that defendants could not pay their mortgage
if a tenant decided not to pay rent and the $97 profit did not
cover the repair expenses.
We review a ruling on a motion for summary judgment de novo,
applying the same standard governing the trial court. Templo
Fuente De Vida Corp. v. National Union Fire Ins. Co., 224 N.J.
189, 199 (2016) (citation omitted). Thus, we consider, as the
motion judge did, "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill, supra, 142 N.J. at 540. If there is no genuine
issue of material fact, we must then "decide whether the trial
4 A-2207-15T4
court correctly interpreted the law." DepoLink Court Reporting &
Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (citation omitted). We review issues of law de novo
and accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed
questions of law and fact, [we] give[] deference . . . to the
supported factual findings of the trial court, but review[] de
novo the lower court's application of any legal rules to such
factual findings." State v. Pierre, 223 N.J. 560, 577 (2015)
(citations omitted). Applying the above standards, we discern no
reason to reverse the grant of summary judgment.
"At common law, property owners were 'under no duty to keep
the public sidewalk adjoining their premises free of snow and
ice.'" Qian v. Toll Bros., Inc., 223 N.J. 124, 135 (2015) (quoting
Skupienski v. Maly, 27 N.J. 240, 247 (1958)). "Generally, property
owners, both commercial and residential, were 'not liable for the
condition of a sidewalk caused by the action of the elements or
by wear and tear incident to public use.'" Ibid. (quoting Yanhko
v. Fane, 70 N.J. 528, 532 (1976), overruled in part by Stewart v.
104 Wallace St., Inc., 87 N.J. 146 (1981)).
In Stewart, supra, 87 N.J. at 149, our Supreme Court carved
out an exception to the common-law rule to impose a duty only on
commercial property owners to maintain public sidewalks adjacent
5 A-2207-15T4
to the property. The Court later held that this common-law duty
of commercial property owners applies to snow and ice removal.
Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983). "Since Stewart,
residential-public-sidewalk immunity has remained intact." Qian,
supra, 223 N.J. at 136 (citing Norris v. Borough of Leonia, 160
N.J. 427, 434 (1999)). "Residential property owners do not have
a common-law duty to clear snow or ice from a public sidewalk and
the failure to do so does not expose them to tort liability. That
is so even if a municipal ordinance requires residential owners
to clear their sidewalks." Ibid. (citing Luchejko v. City of
Hoboken, 207 N.J. 191, 199, 211 (2011)).
In Luchejko, the Court held that the distinction between
residential and commercial properties was engrained in our tort
law and would not be abrogated so that a duty to maintain sidewalks
would apply to residential condominium owners. Luchejko, supra,
207 N.J. at 195. However, since Stewart, our courts have placed
residential rental properties in the category of commercial
properties if they are not owner-occupied. Wilson v. Jacobs, 334
N.J. Super. 640, 644-45 (App. Div. 2000) (holding that a house
entirely rented to tenant was commercial); Hambright v. Yglesias,
200 N.J. Super. 392, 394-95 (App. Div. 1985) (holding that a two-
family house entirely rented out for profit was commercial). The
"gray area of the commercial/residential distinction," Luchejko,
6 A-2207-15T4
supra, 207 N.J. at 210, is whether an owner-occupied property with
a small number of dwelling units should be considered residential
or commercial if the property is also used to generate income for
the owner. See Smith v. Young, 300 N.J. Super. 82, 97 (App. Div.
1997) (holding that a two-family home, one unit of which was owner-
occupied and the other rented to a tenant, was unquestionably
residential in use); Avallone v. Mortimer, 252 N.J. Super. 434,
438 (App. Div. 1991) (holding that where residential property is
partially owner-occupied and partially rented, the issue is its
predominant use); Borges, supra, 247 N.J. Super. at 296 (holding
that a multi-family home partially occupied by the owner and
partially rented to relatives was not commercial).
Courts must employ a "case-by-case, fact-sensitive analysis"
to determine whether owner-occupied property should be considered
residential or commercial. Grijalba, supra, 431 N.J. Super. at
62 (citation omitted) (quoting Stewart, supra, 87 N.J. at 160).
In Grijalba, the defendant converted her owner-occupied two-family
home into a three-family home and moved into the basement apartment
in order to generate more rental income from the other apartments.
Id. at 59-60. We reversed the trial court's grant of summary
judgment to the defendant and remanded the case for a more-detailed
factual determination of the use of the property and the nature
of the ownership. Id. at 59. We listed the following factors for
7 A-2207-15T4
the court to consider in determining whether the property was
primarily residential or commercial:
(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.]
The focus is on the bona fide primary use of the property. As we
stated in Smith:
[W]hile the Supreme Court may have intended
to include property solely held for investment
purposes within the Stewart rationale, it had
no intention to subsume small owner-occupied
dwellings, such as two- or three-family homes,
within the classification of commercial
property. Such uses are clearly in a category
of their own, for they are residential both
in the nature of their ownership as well as
in the use to which the property is put.
[Smith, supra, 300 N.J. Super. at 99-100
(quoting Hambright, supra, 200 N.J. Super. at
395).]
An owner-occupier of a three-family home may use part of the
property for income-production, but such a factor does not change
8 A-2207-15T4
the essential nature and status of the property as the owner's
residence. In addition, whether the property owner must make
mortgage payments is not the question. The relevant question is
the primary use of the property. Ibid.
Here, defendants used the property as their long-time
residence and rented two apartments to generate income to cover
the carrying charges. The small profit they received was
insufficient to cover repair and maintenance expenses, requiring
them to utilize their personal funds for these purposes.
Defendants are not using the property as a method to make money,
but to retain their home under their tight financial circumstances.
We are satisfied that the nature and purpose of defendants' owner-
occupied property was primarily residential, not commercial. As
residential property owners, defendants had no duty to clear snow
and ice from the public sidewalk adjoining their property.
Defendants, therefore, are not liable for plaintiff's alleged
injuries.
Affirmed.
9 A-2207-15T4