MOURIES YOUSSEF ETC. VS. SHRI-RAM DONUTS (L-0929-17, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3903-18T3
MOURIES YOUSSEF and
FATEN YOUSSEF, his wife,
Plaintiffs-Appellants/
Cross-Respondents,
v.
SHRI-RAM DONUTS #3 LLC,
d/b/a DUNKIN DONUTS,
Defendant-Respondent/
Cross-Appellant,
and
LIPOWSKI SNOW PLOWING,
STATE FARM FIRE AND
CASUALTY INSURANCE
COMPANY and CLG
BROADWAY, LLC,
Defendants-Respondents.
______________________________
Argued October 28, 2020 – Decided January 7, 2021
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0929-17.
Timothy J. Foley argued the cause for appellants (Foley
& Foley attorneys; Michael C. Kazer, of counsel;
Sherry L. Foley and Timothy J. Foley, on the briefs).
Robert J. Gallop argued the cause for respondent-cross
appellant Shri-Ram Donuts #3, LLC (O'Toole Scrivo,
LLC, attorneys; Robert J. Gallop, of counsel and on the
briefs; Amy H. Sachs, on the briefs).
Alexander A. Fisher argued the cause for respondent
Lipowski Snow Plowing, LLC (Gartner & Bloom, PC,
attorneys; Alexander A. Fisher and Kenneth M.
O'Donohue, on the brief).
PER CURIAM
Plaintiff Mouries Youssef (Youssef) claims he slipped, fell, and suffered
injuries on an ice and snow-covered walkway adjacent to the donut shop he had
just departed. The shop is operated by defendant Shri-Ram Donuts #3, LLC
d/b/a Dunkin Donuts (Shri-Ram). Youssef and his wife, plaintiff Faten Youssef,
filed negligence claims against Shri-Ram and the contractor it employed to
provide snow removal services, defendant Lipowski Snow Plowing, LLC
(Lipowski).1 Plaintiffs appeal from orders denying their motions to extend or
reopen discovery and for reconsideration, and granting Shri-Ram and Lipowski
1
We do not address the claims asserted against the other defendants because
they have not participated in the appeal.
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summary judgment. Shri-Ram cross-appeals from the court's order finding it is
obligated to indemnify Lipowski for attorney's fees and costs incurred in defense
of plaintiffs' claims.
Based on our review of the record, we reverse the court's summary
judgment awards to Shri-Ram and Lipowski because the court erred by finding
neither defendant had a duty to act reasonably to remove or reduce the hazard
presented by the ice and snow on the walkway while the precipitation
"continue[d] to fall." We reject plaintiffs' claim the court abused its discretion
by denying plaintiffs' motions to extend or reopen discovery and for
reconsideration. We vacate the court's order directing that Shri-Ram indemnify
Lipowski for defense costs because a determination of the indemnification claim
must abide the disposition of plaintiffs' negligence claims.
I.
Because we consider the court's summary judgment orders, we discern the
facts from the summary judgment motion record and view them in the light most
favorable to plaintiffs, the non-moving parties. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995). The record includes a statement of material
facts submitted in accordance with Rule 4:46-2(b) in support of Lipowski's
A-3903-18T3
3
summary judgment motion. 2 In their response to Lipowski's statement of
material facts, plaintiffs admitted many of the averments of fact and denied
others. The denials are untethered to the requisite citation to competent record
evidence, see R. 4:46-2(b), and we therefore accept as true the facts for which
no competent evidence supporting the denials is provided, see Baran v. Clouse
Trucking, Inc., 225 N.J. Super. 230, 234 (App. Div. 1988) ("[A]n opposing party
who offers no substantial or material facts in opposition to the motion cannot
complain if the court takes as true the uncontradicted facts in the movant's
papers."); see also R. 4:46-2(b) (providing properly supported facts in a
movant's statement of material facts will be deemed admitted unless disputed in
accordance with Rule 4:46-2(a)).
The record, however, also includes a counterstatement of material facts
submitted by plaintiffs in opposition to the summary judgment motions. The
facts asserted in the counterstatement are properly supported by citations to
transcripts of deposition testimony as required by Rule 4:46-2(b). Thus, in our
consideration of the facts presented in the summary judgment record in the light
2
It also appears Shri-Ram relied on Lipowski's statement of material facts in
support of its summary judgment motion.
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most favorable to plaintiffs, Brill, 142 N.J. at 540, we also accept as true the
facts set forth in their counterstatement.
The Facts Presented on Summary Judgment
At approximately 10:30 a.m. on March 5, 2015, Youssef exited a Jersey
City donut shop and slipped and fell on the shop's walkway, which led to the
public sidewalk. At that time, there was an ongoing snow event, with snow
falling when he slipped and fell. According to Youssef, there was approximately
five inches of snow and ice on the walkway when he fell.
Shri-Ram leases the property and operates the donut shop. The lease
provides that Shri-Ram is responsible for snow removal. On the date of
Youssef's fall, Shri-Ram and Lipowski were parties to a snow removal
agreement, which provides that Lipowski will remove snow and ice from the
property's parking lot, sidewalk, and walkway, and salt the walkways and
stairways. Under the agreement, Lipowski is obligated to provide those services
when two inches of snow accumulates or upon Shri-Ram's request.
The snow removal agreement provides that Lipowski "is not responsible
for any . . . [p]ersonal injuries resulting from slip and fall accidents," and
"[Lipowski] assumes no responsibility for slip and fall accidents." The
agreement also includes an indemnification provision that generally provides
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Shri-Ram will indemnify, defend, and hold Lipowski harmless against certain
claims.
Vinod Mally worked as the donut shop's manager. She was responsible
for deciding whether Lipowski satisfactorily performed its services. On March
5, 2015, prior to Youssef's fall, Lipowski performed snow and ice removal
services at the property two or three times, the last of which occurred
approximately thirty minutes before Youssef slipped on the walkway. In
addition to clearing the parking lot and walkway, Lipowski applied salt using a
walk-behind spreader. Richard Lipowski, the owner of Lipowski, recalled that
the shop's manager inspected and approved the work.
Mally assisted Youssef after he slipped and fell. Mally described the
walkway as "pretty clean" with "no ice." Michael Manzo also assisted Youssef.
Manzo observed the walkway "[l]ooked like it was just cleaned," and that the
snow was still falling. He testified the snow did not cover the entire walkway,
and he could still see the pavement.
Ahssaine Ifegous went to the donut shop around the same time as Youssef.
When Ifegous walked into the shop, he observed the walkway covered with
approximately five to six inches of snow with ice underneath the snow, and no
signs the walkway was salted. Ifegous nearly fell on the walkway due to the
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snow before he entered the shop. When he left the shop, he saw Youssef in an
ambulance.
On the date of the incident, Ehab Malak stopped at the shop at around
10:00 a.m. or 11:00 a.m. When he arrived, he observed an ambulance and
Youssef. He further observed the sidewalk and walkway were "bumpy" and had
snow and ice.
Shortly after Youssef fell, Richard Lipowski returned to the property and
took photographs. The time stamps on some of the photographs reflect they
were taken at 11:28 a.m. on March 5, 2015. The time stamps of the photographs
of the sidewalk in front of the property show they were taken at 12:15 p.m. The
photographs show the walkway and sidewalk and that it is snowing. Malak,
however, testified the photographs did not accurately represent the conditions
of the walkway and sidewalk when he was at the donut shop.
Plaintiffs' Motions to Extend or Reopen Discovery and for Reconsideration
Plaintiffs filed their complaint in 2017, and the court set May 21, 2018, as
the discovery end date. The end date was extended first by consent of the
parties, and then on two subsequent occasions at plaintiffs' request. In a
September 14, 2018 order, the court granted the final extension to November
17, 2018, and scheduled an arbitration for December 5, 2018.
A-3903-18T3
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On November 14, 2018, plaintiffs moved to extend or reopen discovery,
and requested oral argument. Defendants opposed the motion. In his
certification supporting the motion, plaintiffs' counsel asserted a discovery
extension was required to permit a second deposition of Manzo because counsel
"inadvertently neglected" to ask Manzo questions about his observations of the
walkway and counsel had otherwise been unable to obtain a certification from
Manzo.
Plaintiffs' counsel also claimed he had learned about a new witness,
Malak, who he sought to depose. Plaintiffs' counsel referred to an October 17,
2018 letter to defendants' counsel explaining he had learned of Malak as a
witness a week earlier and that he wanted to depose Malak. In his certification,
plaintiffs' counsel also claimed plaintiffs' liability expert could not complete his
report because of the delay in obtaining the additional information from Manzo
and the need for the information it was anticipated Malak would provide.
On November 30, 2018, the trial court denied plaintiffs' motion. The
court's order notes the arbitration was scheduled for December 5, 2018. The
court found that plaintiffs argued the extension was required because of a need
to depose a new witness, Malak, but plaintiffs did not provide an explanation as
to when or how the witness was discovered or why they needed to depose him.
A-3903-18T3
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The court also found plaintiffs did not demonstrate exceptional circumstances
warranting a discovery extension.
Plaintiffs moved for reconsideration and requested oral argument.
Defendants filed opposition to the motion. In the certification supporting the
motion, plaintiffs' counsel certified for the first time to the facts asserted in the
October 17, 2018 letter he annexed to the certification he submitted in support
of the motion to extend or reopen discovery. The facts, however, were not of
his personal knowledge. They related solely to Youssef's discovery of Malak as
a potential witness. Plaintiffs' counsel otherwise generally asserted there was a
need for Malak's testimony and relied on the exhibits and information presented
in support of the initial motion.
In his certification, plaintiffs' counsel also asserted that five days prior to
the November 17, 2018 discovery end date Lipowski amended and
supplemented its answers to interrogatories to include photographs of the
walkway and sidewalk purportedly taken the day Youssef fell. Plaintiffs'
counsel asserted he received the photographs via email on November 13, 2018—
four days before discovery ended—and via regular mail on November 19, 2018.
He claimed the photographs "beg for investigation" and should be barred
because Lipowski's counsel's due diligence certifications were inadequate.
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Plaintiffs did not move to bar Lipowski's amendment of its interrogatory
answers to include the photographs.
The court issued an order denying plaintiffs' reconsideration motion,
finding plaintiffs failed to demonstrate the court erred by finding no exceptional
circumstances permitting an extension of discovery to obtain information from
Manzo. The court also noted that plaintiffs did not explain the putative
importance of Malak's anticipated testimony or explain the failure to take
Malak's deposition after plaintiffs' counsel first learned about him in early
October 2018, more than a month prior to the November 17, 2018 discovery end
date. The court also found plaintiffs' other arguments were known but not
asserted when the motion to extend discovery was made, and, for that reason,
the arguments did not properly support a grant of the reconsideration motion.
Lipowski's and Shri-Ram's Summary Judgment Motions
Following the completion of discovery, Lipowski moved for summary
judgment, and Shri-Ram cross-moved for summary judgment, on plaintiffs'
claims. Lipowski also sought summary judgment on its crossclaim for
indemnification against Shri-Ram.
After hearing argument, the court determined neither Shri-Ram nor
Lipowski owed a legal duty to plaintiffs concerning any hazard caused by the
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ice and snow because Youssef fell while the precipitation was still falling. In
finding Shri-Ram and Lipowski did not breach any duty to Youssef, the court
appeared to apply the so-called "ongoing-storm rule," which "relieves
commercial landowners from any obligation to try to render their property safe
while sleet or snow is falling." Pareja v. Princeton Int'l Props., 463 N.J. Super.
231, 235 (App. Div.), certif. granted, 244 N.J. 168 (2020).
The trial court also determined Shri-Ram's obligation under the snow
removal agreement's indemnification provision was triggered by the filing of
plaintiffs' negligence claim against Lipowski. The court granted Lipowski's
motion for summary judgment against Shri-Ram and awarded Lipowski defense
fees and costs.
Plaintiffs appeal from the orders denying their motions to extend or reopen
discovery and for reconsideration, and from the orders granting Shri-Ram and
Lipowski summary judgment. Shri-Ram cross-appeals from the order granting
Lipowski summary judgment on the crossclaim for indemnification and
awarding Lipowski defense fees and costs.
II.
We first consider the court's orders denying plaintiffs' motions to extend
or reopen discovery and for reconsideration. We review a trial court's
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disposition of discovery matters under the abuse of discretion standard. State v.
Brown, 236 N.J. 497, 521 (2019); see also Rivers v. LSC P'ship, 378 N.J. Super.
68, 80 (App. Div. 2005). "[A]n abuse of discretion 'arises when a decision is
"made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis."'" State v. R.Y., 242 N.J. 48, 65
(2020) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We
apply the same abuse of discretion standard to a denial of a motion for
reconsideration. Branch v. Cream-O-Land Dairy, 459 N.J. Super. 529, 541
(App. Div. 2019).
Where, as here, a party moves to extend or reopen discovery after a court
fixes an arbitration date, a court will grant the motion only if the party shows
exceptional circumstances. R. 4:24-1(c); Tynes v. St. Peter's Univ. Med. Ctr.,
408 N.J. Super. 159, 168-69 (App. Div. 2009). Under this standard,
the moving party must satisfy four inquiries: (1) why
discovery has not been completed within time and
counsel's diligence in pursuing discovery during that
time; (2) the additional discovery or disclosure sought
is essential; (3) an explanation for counsel's failure to
request an extension of the time for discovery within
the original time period; and (4) the circumstances
presented were clearly beyond the control of the
attorney and litigant seeking the extension of time.
[Garden Howe Urb. Renewal Assocs. v. HACBM
Architects Eng'rs Planners, L.L.C., 439 N.J. Super. 446,
A-3903-18T3
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460 (App. Div. 2015) (quoting Rivers, 378 N.J. Super.
at 79).]
"[F]ailure to properly prepare a matter in a timely manner is not exceptional
circumstances . . . . [and] is not a reason to reopen discovery or to adjourn a
trial." O'Donnell v. Ahmed, 363 N.J. Super. 44, 52 (Law Div. 2003).
Measured against the exceptional circumstances standard, we find no
abuse of discretion in the court's denial of plaintiffs' motion to extend or reopen
discovery. The reason proffered for the requested discovery extension to obtain
a second deposition of Manzo—plaintiffs' counsel's inadvertent failure to make
inquiry of Manzo during his first deposition—does not constitute an exceptional
circumstance. See, e.g., Bldg. Materials Corp. of Am. v. Allstate Ins., 424 N.J.
Super. 448, 479 (App. Div. 2012) (explaining counsel's delay in obtaining
discovery in a timely manner does not support a finding of exceptional
circumstances). Moreover, plaintiffs failed to demonstrate that the additional
discovery from Manzo is essential to their claims, see Vitti v. Brown, 359 N.J.
Super. 40, 51 (Law Div. 2003) (finding discovery is essential if "the matter
simply could not proceed without" it or if the party seeking the discovery "would
suffer some truly substantial prejudice"), or that the failure to timely obtain the
additional information was beyond plaintiffs' control, Garden Howe Urb.
Renewal, 439 N.J. Super. at 460.
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Similarly, plaintiffs failed to present competent evidence supporting a
finding of any of the factors required to establish exceptional circumstances
allowing an extension of discovery to depose Malak. Plaintiffs' counsel's
supporting certification is bereft of any facts based on his personal knowledge
concerning the delay in identifying Malak as a witness, and the letter plaintiffs'
counsel attached to his certification does not include any facts related to Malak
based on counsel's personal knowledge. See R. 1:6-2(a) (requiring a motion that
relies on facts that are not of record or judicially noticeable "shall be supported
by affidavit made in compliance with [Rule] 1:6-6"); see also R. 1:6-6 (stating
facts offered in support of a motion that do not appear of record or are not
judicially noticeable may be supported by affidavits based on the affiant's
personal knowledge). The court was therefore without competent evidence
concerning Malak upon which a proper finding of exceptional circumstances
could be made.
Plaintiffs' counsel's certification also did not explain or demonstrate why
Malak's testimony was essential to the prosecution of plaintiffs' claims, see Vitti,
359 N.J. Super. at 51, and it did not offer any reason for the delay in deposing
Malak until after the November 17, 2018 discovery deadline after learning about
Malak in early October 2018. Again, an unexplained delay in obtaining
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discovery does not support a finding of exceptional circumstances allowing an
extension or reopening of discovery under Rule 4:24-1(c). Bldg. Materials
Corp., 424 N.J. Super. at 479.
Plaintiffs' failure to present evidence supporting each of the four factors
required to establish exceptional circumstances required the court's rejection of
the motion to extend discovery. Thus, the trial court did not abuse its discretion
by denying plaintiffs' motion to extend or reopen discovery.
The court also did not abuse its discretion by denying the motion without
hearing oral argument. Rule 1:6-2(c) provides that "[d]iscovery and calendar
motions shall be disposed of on the papers unless" the court "directs oral
argument on its own . . . or, in its discretion, on a party's request." Rule 1:6-
2(d) further provides that where a party requests oral argument on a discovery
motion or calendar motion, the "request shall be considered only if accompanied
by a statement of reasons."
The court did not abuse its discretion by deciding the motion without oral
argument because plaintiffs did not provide a statement of reasons supporting
the request; Rule 1:6-2(c) provides such motions shall be decided on the papers;
and, on its face, the motion did not include competent evidence establishing the
exceptional circumstances required for an extension of discovery. See
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Clarksboro, LLC v. Kronenberg, 459 N.J. Super. 217, 221 (App. Div. 2019)
(finding "[t]he trial court retains discretion as to whether oral argument is
necessary or appropriate when 'the motion involves pretrial discovery'" (quoting
Vellucci v. DiMella, 338 N.J. Super. 345, 347 (App. Div. 2001))); see also
Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003) (explaining a
motion may be decided without oral argument if the "motion on its face did not
meet the applicable test for that relief"). We affirm the court's denial of
plaintiffs' motion to extend or reopen discovery.
For essentially the same reasons, we affirm the court's denial of plaintiffs'
reconsideration motion. A court should grant a motion for reconsideration only
when "1) the [c]ourt has expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence[.]"
Branch, 459 N.J. Super. at 541 (alterations in original) (quoting Cummings v.
Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)). Reconsideration is not
appropriate when a party is merely "dissatisfied with [the court's] decision,"
"wishes to reargue a motion," Palombi v. Palombi, 414 N.J. Super. 274, 288
(App. Div. 2010), or intends "to bring to the court's attention evidence that was
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not presented, but was available, in connection with the initial argument," J.P.
v. Smith, 444 N.J. Super. 507, 520 (App. Div. 2016).
For the reasons we have explained, the court correctly denied plaintiffs'
discovery extension motion. Plaintiffs' reconsideration motion consisted of
nothing more than a repackaging of the arguments it asserted in support of the
discovery extension motion. Plaintiffs added only a claim that a discovery
extension was required due to Lipowski's alleged late delivery of photographs
in its amendment to its interrogatory answers.3 The alleged late delivery of the
photographs, however, was known to plaintiffs when they filed their initial
motion, and they therefore could not properly rely on those facts to support the
reconsideration motion. See Cummings, 295 N.J. Super. at 384 (explaining
3
Plaintiffs claim the production of the photographs was improper because the
Rule 4:17-7 certifications of due diligence that accompanied the photographs
were inadequate. We find the argument unavailing because plaintiffs did not
file a motion challenging the certifications in accordance with Rule 4:17-7. The
Rule provides that "[a]ny challenge to the certification of due diligence will be
deemed waived unless brought by way of motion on notice filed and served
within [twenty] days after service of the amendment." R. 4:17-7. Having
waived the right to challenge the sufficiency of the certifications of due
diligence in the trial court, we will not consider the claim for the first time on
appeal. See Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973) (explaining
there is no appellate review of an argument that was not presented to the trial
court).
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reconsideration is not warranted where alleged new facts supporting the
reconsideration motion were available when the underlying motion was made).
Plaintiffs did not establish the court's decision denying the discovery
extension was palpably incorrect or that the court overlooked or failed to
appreciate plaintiffs' evidence, see Palombi, 414 N.J. Super. at 289 (affirming
trial court's denial of motion for reconsideration when movant could not identify
any error made by the court), and the court did not abuse its discretion by
rejecting plaintiffs' attempt to reargue their discovery motion, see id. at 288-89(explaining a party's desire to reargue a motion does not warrant reconsideration
and noting a movant must show the "[c]ourt acted in an arbitrary, capricious, or
unreasonable manner[] before [a] [c]ourt should" consider such a motion
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990))). The
court also did not abuse its discretion by denying the reconsideration motion
without oral argument. The motion was devoid of merit on its face. See, e.g.,
Raspantini, 364 N.J. Super. at 532. We therefore affirm the court's order
denying plaintiffs' motion for reconsideration.
III.
We next consider plaintiffs' challenge to the orders granting Shri-Ram and
Lipowski summary judgment and dismissing the complaint. We review an order
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granting summary judgment by applying the same standard as the trial court.
Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). Under this standard,
summary judgment is appropriate "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." Ibid.(quoting R. 4:46-2(c)). We review the trial court's legal conclusions de novo.
Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 385 (2010).
The court granted the summary judgment motion based on its finding Shri-
Ram and Lipowski could not be found liable for negligence because they owed
no legal duty to address or remedy any hazards on the walkway while the
precipitation—ice and snow—was falling. We are persuaded the court erred in
reaching that legal conclusion for the reasons we explained in detail in Pareja,
where we rejected the "ongoing-storm rule" and held that "a commercial
landowner has a duty to take reasonable steps to render a public walkway
abutting its property—covered by snow or ice—reasonably safe" regardless of
whether there is an ongoing snow event. 463 N.J. Super. at 235. We hold here,
as we did in Pareja, that a landowner's liability for hazards created by falling ice
or snow "may arise only if, after actual or constructive notice" there is a failure
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"to act in a reasonably prudent manner under the circumstances to remove or
reduce the foreseeable hazard." Ibid. As a result, we conclude the court erred
by finding that neither Shri-Ram nor Lipowski owed a legal duty to Youssef
simply because he fell during an ongoing snow event.
"The fundamental elements of a negligence claim are a duty of care owed
by the defendant to the plaintiff, a breach of that duty by the defendant, injury
to the plaintiff proximately caused by the breach, and damages." Shields v.
Ramslee Motors, 240 N.J. 479, 487 (2020) (quoting Robinson v. Vivirito, 217
N.J. 199, 208 (2014)). Courts will consider four factors when analyzing a
negligence claim: "the relationship of the parties, the nature of
the attendant risk, the opportunity and ability to exercise care, and the public
interest in the proposed solution." Id. at 492-93 (quoting Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 439 (1993)).
Our holding in Pareja makes clear that a negligence claim based on a
hazard created by ice or snow must be determined based on the same factors that
govern any other negligence cause of action, and without regard to a rule that
exempts a party from liability simply because an injury is caused by a hazard
during an ongoing ice or snow event. See 463 N.J. Super. at 249-52. As we
explained in Pareja, "To permit commercial landowners under every
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circumstance to wait until the end of a storm before taking any reasonable
precautions, or to attempt removing or reducing known precipitation hazards,
would arbitrarily create a rigidity in the law inconsistent with the innumerable
variables that are possible." Id. at 248.
Shri-Ram, as the lessee of the donut shop and property, had "a duty to take
reasonable steps to render [the] public walkway abutting its property—covered
by snow or ice—reasonably safe, even when precipitation [was] falling." Id. at
251. Although not an owner or lessee of the property, Lipowski had an ordinary
duty of care to act in a reasonably prudent manner under all the circumstances.
The court did not make findings of fact supporting its summary judgment
determinations. See R. 1:7-4(a); see also Estate of Doerfler v. Fed. Ins., 454
N.J. Super. 298, 301 (App. Div. 2018) (explaining a court is required to "set
forth factual findings and correlate them to legal conclusions" on a summary
judgment motion (citation omitted)). However, our de novo review of the record
permits us to conclude there are factual issues concerning the condition of the
walkway when Youssef fell; the amount of snow and ice on the walkway when
he fell; the timing, extent, and adequacy of Lipowski's snow removal efforts;
and other issues pertaining to the reasonableness of Shri-Ram's and Lipowski's
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actions prior to Youssef's fall. 4 A determination of the reasonableness of Shri-
Ram's and Lipowski's actions may only follow after a resolution of those
genuine issues of material fact. That is a task for a jury. We therefore reverse
the court's summary judgment orders and remand for further proceedings on
plaintiffs' claims.
IV.
We next consider the court's order granting Lipowski summary judgment
on its counterclaim against Shri-Ram for indemnification for defense fees and
costs. The court determined indemnification was required under the
indemnification provision in the snow removal agreement.
When there are no factual disputes, "we review the interpretation of a
contract de novo." Serico v. Rothberg, 234 N.J. 168, 178 (2018). We "give 'no
4
We recognize plaintiffs' failure to cite to competent evidence supporting their
denials of Lipowski's statements of material facts renders those facts admitted,
but the record also includes plaintiffs' counterstatement of facts, which are
supported by evidence that in our view creates fact issues concerning the
conditions of the walkway and the amount of snow and ice on the walkway when
Youssef fell. In addition, we note plaintiffs' counterstatement of facts includes
citations to Malak's deposition, which was taken after the discovery end date
expired. Even if the facts supported by the references to Malak's deposition are
ignored, plaintiffs presented sufficient facts supported by citations to competent
evidence that raise issues concerning the condition of the walkway and the
amount of snow and ice on the walkway when Youssef slipped and fell, and,
more generally, whether Shri-Ram and Lipowski exercised reasonable care
under all the circumstances presented.
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special deference to the trial court's interpretation and look at the contract with
fresh eyes.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014)
(quoting Kieffer v. Best Buy, 205 N.J. 213, 223 (2011)).
Shri-Ram argues the trial court erred by granting Lipowski's motion for
indemnification because Shri-Ram was not negligent, and therefore the
indemnification obligation was not triggered. Alternatively, Shri-Ram argues
that if we vacate the court's dismissal of the complaint, the order granting
Lipowski indemnification for defense costs should be vacated because a
question of fact will exist as to whether Lipowski's negligence caused Youssef's
accident. Lipowski argues the court properly interpreted the agreement to
require that Shri-Ram indemnify Lipowski and that Shri-Ram's indemnification
obligation was triggered when plaintiffs filed their claims against Lipowski.
A court's "objective in construing a contractual indemnity provision
is . . . to determine the intent of the parties." New Gold Equities Corp. v. Jaffe
Spindler Co., 453 N.J. Super. 358, 385 (App. Div. 2018) (quoting Kieffer, 205
N.J. at 223). When analyzing a contract, the court "give[s] contractual terms
'their plain and ordinary meaning.'" Kieffer, 205 N.J. at 223 (quoting M.J.
Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002)). Where "the
meaning of an indemnity provision is ambiguous, the provision is 'strictly
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construed against the indemnitee.'" Ibid. (quoting Mantilla v. NC Mall Assocs.,
167 N.J. 262, 272 (2001)).
Where a contract fails to unambiguously provide for indemnification of
an indemnitee for the costs of defending claims of the indemnitee's negligence,
courts will apply what has been characterized as the Central Motor default rule.
New Gold Equities, 453 N.J. Super. at 386-87 (quoting Mantilla, 167 N.J. at
273). Under the rule, "[c]osts incurred by [an indemnitee] in defense of its own
active negligence . . . are not recoverable." Id. at 387 (alterations in original)
(quoting Cent. Motor Parts Corp. v. E.I. duPont deNemours & Co., 251 N.J.
Super. 5, 11 (1991)).
Here, the the snow removal agreement's indemnification provision states:
The owner[, Shri-Ram,] shall indemnify, defend and
hold harmless the contractor . . . from and against any
and all claims, damages, reasonable attorneys' fees,
costs and expenses which the contractor incurs as a
result of a claim or claims brought by the owner or third
party, arising out of any wrongdoing[] [and/or]
negligence . . . by the owner alleged or
otherwise, . . . including but not limited to personal
injuries resulting from slip and fall accidents.
In other words, Shri-Ram is required to indemnify, defend, and hold
harmless Lipowski from claims arising out of Shri-Ram's negligence. The
indemnification provision, however, does not provide for any indemnification
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of Lipowski for its own negligence. Indeed, indemnification for defense and
costs associated with Lipowski's negligence is not mentioned in the
indemnification provision. Construing this indemnification clause narrowly
against Lipowski, see Kieffer, 205 N.J. at 223, it does not unequivocally
indemnify Lipowski for its defense of claims resulting from its own negligence,
see, e.g., Mantilla, 167 N.J. at 267, 275 (finding a contract that indemnified a
party "from and against any and all claims . . . caused by or arising from the
negligence of [the indemnitor]" did not explicitly indemnify that party from
costs of defending against claims of its own negligence).
Because the indemnification clause does not unequivocally indemnify
Lipowski for the defense of claims for its own negligence, the Central Motor
default rule applies, New Gold Equities, 453 N.J. Super. at 386-87, and
Lipowski cannot recover costs incurred in defense of its own negligence, Cent.
Motor, 251 N.J. Super. at 11. Any determination of Lipowski's claimed
entitlement to indemnification for its defense costs must await the jury's
determination of plaintiff's negligence claims, and the issue must be decided on
the record presented at that time. See Mantilla, 167 N.J. at 273 (holding an
indemnitee may recover counsel fees "after-the-fact" "if the indemnitee is
adjudicated to be free from active wrongdoing regarding the plaintiff's injury[]
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and has tendered the defense to the indemnitor at the start of the litigation");
Cent. Motor, 251 N.J. Super. at 11 (observing "facts developed during trial
should control" whether an indemnitee may recover costs). Accordingly, we
vacate the court's order finding Shri-Ram must defend and indemnify Lipowski
and ordering Shri-Ram to pay Lipowski's defense fees and costs.
In sum, we affirm the orders denying plaintiffs' motions to extend or
reopen discovery and for reconsideration. We reverse the orders granting Shri-
Ram and Lipowski summary judgment, vacate the order granting Lipowski
summary judgment on its crossclaim for indemnification, and remand for further
proceedings before the trial court.
Affirmed in part, reversed in part, vacated in part. We remand for further
proceedings in accordance with this opinion. We do not retain jurisdiction.
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