NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0182-24
DIEGO GARCIA, and individual, and EVELYN TORRES, an individual,
Plaintiffs-Appellants,
v.
GREGORIO PAULINO, an individual, and RUFINA RODRIGUEZ, an individual,
Defendants-Respondents. __________________________
Argued September 8, 2025 – Decided October 24, 2025
Before Judges Sabatino and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3377-21.
Sean M. Mahoney argued the cause for appellants (Stathis & Leonardis LLC, attorneys; Sean M. Mahoney, of counsel and on the brief).
Michael K. Willison argued the cause for respondents (Dickie, McCamey & Chilcote, PC, attorneys; Michael K. Willison, on the brief). PER CURIAM
Plaintiffs Diego Garcia and Evelyn Torres appeal from a Law Division
order granting summary judgment to defendants Rufina Rodriguez and Gregorio
Paulino and dismissing their complaint. Plaintiffs claimed injuries from two
separate slip-and-fall incidents on a sidewalk abutting defendants' two-family
residence—one unit of which was rented to the plaintiffs. Based on our de novo
review of the record and applicable legal principles, we affirm.
I.
Plaintiffs initiated claims against defendants seeking recovery for injuries
sustained in February 2021 when both slipped and fell on ice on the sidewalk in
front of defendants' Perth Amboy residence. The property contained two
residential units, one of which was rented by plaintiffs and the other occupied
by defendants as their primary residence. Plaintiff Garcia, who had just returned
home from work, slipped and fell on the sidewalk while he was walking to
retrieve his phone from his car. Garcia's doorbell camera recorded his fall. 1
(Pa117). After falling, Garcia went inside and slept. Plaintiff Torres was
sleeping at the time. Later that same morning, while exiting the residence to
1 We have reviewed all videos submitted by the parties in the record. A-0182-24 2 travel to work, Torres slipped and fell on the same area of the sidewalk. Garcia's
doorbell camera also recorded Torres's fall.
After the case was joined, the parties engaged in discovery. Prior to the
conclusion of discovery, the court ordered each defendant to appear for
additional depositions limited to the issue of "residential vs. commercial"
ownership of their property. As part of discovery, defendants produced a
property survey which indicated the sidewalk where plaintiffs fell was outside
of the property's boundary lines. After discovery concluded, defendants moved
for summary judgment.2 In response, plaintiffs moved to extend and compel
discovery from defendants—more specifically, the motion sought more specific
discovery responses to plaintiffs' post-deposition discovery demands.
In their submissions and at oral argument, defendants contended (1) they
did not own the sidewalk based on the survey showing it was a public sidewalk
and, as such, had no duty to maintain it; (2) the property was owner-occupied
and residential, not commercial in nature, and they had no duty to maintain the
public sidewalk; and (3) the terms of the lease agreement and any delegation of
2 Defendants motion for summary judgment was titled a motion for reconsideration based on the prior denial of their initial summary judgment motion which we do not directly address herein. A-0182-24 3 sidewalk maintenance to the tenants did not establish a tort duty or shift liability
to them.
Plaintiffs countered that there were genuine factual issues as to whether
the sidewalk was public or part of defendants' private property. They produced
the city tax map and asserted it showed the sidewalk was part of the defendants'
property and referenced the property maintenance history by defendants to
support they owned and controlled the sidewalk.
Plaintiffs also contended that the landlord/tenant relationship—
specifically, the lease agreement—demonstrated defendants' responsibility over
the maintenance of the sidewalk. They argued the lease attempted to delegate
snow and ice removal responsibilities to the tenants, supporting their claim that
defendants owned and inherently maintained control of the sidewalk. Plaintiffs
also argued it was the duty of defendants, as part of the tenancy, to provide safe
ingress and egress to the property. They contended that defendants had a duty
to maintain the sidewalk to ensure their safe access as tenants.
Plaintiffs further argued that they were entitled to an extension of the
discovery end date to obtain more specific discovery responses including
A-0182-24 4 defendants' full Schedule E 3 from their tax returns to clarify whether the rental
unit generated income and should be classified as commercial for liability
purposes.
After the conclusion of argument, the court rendered an oral decision
finding the property survey and video footage showed the fall occurred on a
public sidewalk, not property owned by defendants, and the maintenance
performed by defendants did not create liability. The court further determined
the lease was residential, and any attempt to delegate sidewalk maintenance to
tenants did not affect the public nature of the sidewalk or impose liability on
defendants.
Relying upon our holding in Grijalba v. Floro, 431 N.J. Super. 57 (App.
Div. 2013), the court found the property was predominantly residential. The
court determined defendants had lived there continuously, did not acquire the
property for business/investment purposes and no genuine issue existed that the
rent received did not exceed the carrying costs.
The court rejected plaintiffs' argument that landlords have a duty to
maintain public sidewalks for ingress/egress of the tenants, noting that New
3 Schedule E of Form 1040 is used to report income from rental real estate and several other types of entities. See www.irs.gov. (Last visited October 9, 2025) A-0182-24 5 Jersey law does not impose a duty on residential owners unless the condition is
aggravated by the owner. The court also determined that even if further financial
discovery of defendants' tax documents were provided, it would not outweigh
the evidence supporting the property's residential classification under Grijalba.
An order was entered granting defendants' motion for summary judgment and
denying plaintiffs' motion to compel and extend discovery "as moot."
On appeal, plaintiffs contend the trial court erred by granting summary
judgment to defendants because genuine issues of material fact existed as to
whether: (1) plaintiffs fell on a public or private sidewalk; (2) defendant's
agreement to owning the sidewalk through the express terms in the lease
agreement showed the sidewalk was part of their property for liability purposes;
(3) defendants owed an inherent duty to plaintiffs as part of their tenancy to
provide safe and convenient access to the property; and (4) the property was
commercial and not residential. Plaintiffs also assert the trial court erred by
denying their motion to extend and compel discovery, finding the motion
"moot." They argue the discovery sought, including requests for documents
related to defendants' ability to generate income or profit from the lease, was
discoverable since it was relevant to whether the property was commercial or
A-0182-24 6 residential and the court erred by not requiring defendants to produce this
information.
II.
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." Rule
4:46-2(c). Appellate courts review the trial court's grant or denial of a motion
for summary judgment de novo, applying the same standard used by the trial
court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). The court must "consider
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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A.
We first address plaintiff's contention that genuine issues of material fact
existed in the record which precluded summary judgment concerning whether
the sidewalk was owned by defendants or was a public sidewalk. Based on our
de novo review of the record, we are not persuaded by this argument.
A-0182-24 7 The record reflects that defendants produced a survey of their property
clearly showing the sidewalk was located outside defendants' property lines. In
addressing defendants' submission of the city tax maps, we note "[o]fficial tax
maps are prepared only for assessment purposes. Tax maps are prepared under
the jurisdiction of the Local Property Tax Branch, Engineering Division, and
must meet the tax map specifications as adopted by the Division; but these
[maps] are created only for assessment purposes." Cox et al., New Jersey
Zoning & Land Use Administration § 30-3.1, at 461 (2025). (emphasis added).
We conclude the purpose of a tax map is to provide a block and lot
description for tax assessment purposes and is not a survey, does not utilize
metes and bounds descriptions, nor provide an accurate description of the lot's
property lines or boundaries. Therefore, we conclude plaintiffs' rebuttal
evidence consisting of the city tax map, which depicts the sidewalk as part of
the defendants' property, does not create genuine issues of material fact which
precluded summary judgment.
B.
We now address plaintiffs' contention that the trial court erred by
overlooking the importance of the language in the lease agreement which
delegated snow and ice remediation responsibilities to the tenants. Plaintiffs
A-0182-24 8 assert this created factual disputes as to ownership of the sidewalk or sufficiently
showed defendants were responsible for the maintenance of the sidewalk
warranting the denial of summary judgment.
The Lease Agreement states that "[m]ajor" maintenance of the leased
premises will remain the responsibility of the defendants.
Specifically, regarding the "Use of Premises," the lease at Section Seven
states:
. . . Lessee shall comply with all the sanitary laws, ordinances, rules, and orders of appropriate governmental authorities affecting the cleanliness, occupancy, and preservation of the demised premises, and the sidewalks connected thereto, during the term of this lease.
[(Emphasis added)]
The Lease specifically adopts and incorporates "ordinances" of
"appropriate governmental authorities." Perth Amboy adopted a municipal
ordinance stating:
The owner or owners, occupant or occupants of any premises, property, or vacant land abutting or bordering upon any street in the City of Perth Amboy shall remove all snow and/or ice from the sidewalks of any street or, in case of ice which may be so frozen to the sidewalks as to make removal impracticable, shall cause the same to be thoroughly covered with sand or ashes within twenty-four (24) hours after same has ceased to fall or form thereon.
A-0182-24 9 [(Emphasis added) City of Perth Amboy, N.J., Code § 380-1(A) (2011).]
Established law of our State dictates that a municipal ordinance does not
create a tort duty as a matter of law. Luchejko v. City of Hoboken, 207 N.J.
199, 211 (2011). Further, we concur with the trial court that the lease clause in
question was intended to ensure that tenants comply with local laws and
ordinances and did not create genuine factual issues concerning defendants'
ownership or control of the sidewalk. The relevant clause in the lease agreement
required tenants to comply with sanitary laws and ordinances affecting the
cleanliness of the premises and connected sidewalks. The trial court correctly
determined, in light of the established case law, that the Lease Agreement did
not impose a duty on defendants to maintain the sidewalk. We see no basis to
disturb this determination.
C.
We next address plaintiff's contention, raised for the first time on appeal,
that defendants owed them an "inherent" duty to provide safe and convenient
access to the property regardless of ownership of the sidewalk. Plaintiffs rely
on Brown v. St. Venantius School, 111 N.J. 325 (1988), for the proposition that
safe and convenient access, including ingress and egress, is a necessary
component of defendants' daily activities. In Brown, plaintiff sued St. Venantius
A-0182-24 10 School and the Roman Catholic Archdiocese of Newark after she was injured
from a fall on the sidewalk abutting the school. She claimed the school's failure
to remove snow and ice from an abutting sidewalk caused her fall. Id. at 327.
The trial court granted summary judgment in favor of the defendants, which we
affirmed. Id. at 328. However, the Supreme Court reversed, holding that
nonprofit organizations, including religious institutions, can be considered
commercial landowners for the purposes of sidewalk liability. The Court
determined that imposing the duty of sidewalk maintenance on the school was
fairer than placing the entire burden on pedestrians. Id. at 333-34. The case
was remanded for further proceedings, rejecting the notion that religious
organizations are exempt from such liability.
Plaintiffs contend that although Brown concerned a private/parochial
school's duty, the rationale is directly applicable to the present case. They argue
similarly to Brown that safe and convenient access, including ingress and egress,
was a "necessary component of the [p]laintiffs' tenancy upon the [d]efendants'
property." Our review of the factual record and relevant legal principles leads
us to conclude otherwise.
Issues not raised in the trial court are deemed waived for appellate
purposes unless they involve matters of great public importance. Nieder v.
A-0182-24 11 Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We conclude the issues raised
by plaintiffs do not involve matters of this nature.
Even if we were to consider plaintiffs' argument on the merits, we
conclude their contentions on this point fail. In Brown the Court held in certain
instances that nonprofit organizations may be considered commercial
landowners for sidewalk liability purposes, imposing a duty upon the entity to
safely maintain a sidewalk. We decline to extend the Court's holding in Brown
to the present facts, which are plainly distinguishable because defendants are
clearly not a nonprofit organization.
D.
We turn now to plaintiff's contention that genuine issues of material fact
existed in the summary judgment record supporting the property was
commercial in nature and, as such, defendants had a duty to maintain the
sidewalk including the clearing of dangerous conditions including snow and ice.
In New Jersey it is well-settled that a residential property owner is
generally immune from liability for accidents resulting from naturally-caused
conditions of public sidewalks abutting their property. Luchejko, 207 N.J. at
195; Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34, 38 (App. Div. 1995).
Historically, a property owner in New Jersey had no duty under the common law
A-0182-24 12 to maintain the sidewalks on their lands that abutted public streets. Yanhko v.
Fane, 70 N .J. 528, 537 (1976); see also Gottsleben v. Annese, 482 N.J. Super.
215 (App. Div. 2025) (reaffirming New Jersey’s "bright-line" rule that liability
for public sidewalk maintenance does not attach to residential owners absent
worsening of condition). Similarly, property owners had no duty at common
law to clear the snow and ice from public sidewalks. See Davis v. Pecorino, 69
N.J. 1, 4 (1975).
In 1981, the Supreme Court revised the common law and imposed a duty
only on commercial property owners or occupants to maintain public sidewalks
adjacent to their property. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157
(1981). Two years later, the Court held this common law duty imposed upon
commercial property owners applies to snow and ice removal. Mirza v. Filmore
Corp., 92 N.J. 390, 395 (1983). In 2011, however, the Court declined to extend
the duty to a condominium association. It held in Luchejko, 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. 207 N.J. at 201–11
However, from the time the common law duty was first imposed on
commercial properties, our courts have placed residential rental properties in the
A-0182-24 13 category of commercial properties if they are not owner-occupied. Stewart, 87
N.J. at 160 n. 7 (apartment buildings are considered "commercial" properties);
Wilson v. Jacobs, 334 N.J. Super. 640, 642–43, 646–47 (App. Div. 2000) (house
entirely rented to tenant was "commercial"); Hambright v. Yglesias, 200 N.J.
Super. 392, 394–95 (App. Div. 1985) (two-family house entirely rented out for
profit was "commercial"). The "gray area of the commercial/residential
distinction," Luchejko, 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) (two-family home, one
unit of which was owner-occupied and the other rented to a tenant by the estate
of a deceased sister, was "unquestionably residential in use"); Avallone v.
Mortimer, 252 N.J. Super. 434, 438 (App. Div. 1991) (where residential
property is partially owner-occupied and partially rented, the issue is its
"predominant use"); Borges v. Hamed, 247 N.J. Super. 295, 296 (App. Div.
1991) (multi-family home partially occupied by owner and partially rented to
relatives was not "commercial"); see also Briglia v. Mondrian Mortg. Corp., 304
N.J. Super. 77, 79 (App. Div.) (home was not commercial property merely
because the mortgagee had taken possession at the time of the accident);
A-0182-24 14 Wasserman, 281 N.J. Super. at 37, 39 (owner who used one room in his home
as a telecommuting office was not a commercial owner).
More recently in Grijalba, 431 N.J. Super. at 57, we grappled with
determining whether an owner-occupied home with three units was residential
or commercial. We confirmed that "commonly accepted definitions of
'commercial' and 'residential' property should apply, with difficult cases to be
decided as they arise." Id. at 62 (quoting Stewart, 87 N.J. at 160). We stated
that courts must "employ a case-by-case, fact-sensitive analysis to resolve the
commercial-residential distinction." Ibid.
In Grijalba, a four-factor test was established to determine sidewalk
liability primarily based on whether the use of the property was commercial or
residential. Those factors are:
(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."
A-0182-24 15 [Id. at 73.]
Based on our de novo review of the record, we agree with the trial court's
analysis of these factors and its conclusion that no genuine factual issues were
presented by plaintiffs related to any of these factors which would preclude
summary judgment.
We determine factor one of Grijalba supports a determination that the
property is residential. The property is owner occupied. Plaintiffs and
defendants utilize the property for residential use. There is no support that the
property is an investment property, or maintained for business purposes .
The second factor also supports the property being categorized as
residential. Both parties agree that they use the property as their primary
residence. A review of the record indicates only the room counts for each unit
with the first story occupied by defendants containing a living room, dining
room, kitchen, three bedrooms, one bathroom, a basement, and yard (plaintiffs
did not have access to these areas) and the second story occupied by plaintiffs
containing a living room, kitchen, one bathroom, and four bedrooms. Therefore,
a substantial portion of the home, including the outside yard, was utilized by
A-0182-24 16 We also determine the trial court's finding that the third factor was
"neutral" to be supported by the record. We conclude, as did the trial court,
there were no genuine factual issues defendants were realizing a profit from the
rent paid because no dispute exists that the rent does not cover defendant's full
mortgage.
The trial court found the fourth factor also supports the residential nature
of the property, determining "New Jersey regulations generally define
residential properties to be those on which a dwelling is located, and where the
property is used primarily as a dwelling." The court also found "residential
property [is defined as] a structure that is used as a residence or bi-residence."
The court also noted that the insurance policy [is] consistent with a homeowners
and a residential policy that governs the particular property.
Our de novo review of the summary judgment record does not lead us to
conclude otherwise. The record shows defendants lived in and continuously
occupied one of the two units in the property since its purchase. No evidence in
the summary judgment record supports the property was acquired or
predominantly used for business or investment purposes. Further, no genuine
issues of material fact existed in the record that the primary use for both units
was residential.
A-0182-24 17 Finally, we address plaintiffs' contention that the court erred by not
extending the discovery end date and requiring defendants to produce portions
of their tax returns related to the rental property. Here, as found by the trial
court, even if plaintiffs were paying off the majority of the mortgage
installments through their payment of rent, the discovery sought by plaintiffs
would not have altered the analysis under the Grijalba factors because it would
not have created genuine issues of material fact that the property should be
considered commercial for sidewalk liability purposes. In this instance, there
was no need to engage in further discovery because "it w[ould] patently not
change the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.
2004).
Affirmed.
A-0182-24 18