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

• Court: New Jersey Superior Court Appellate Division
• Decided: June 30, 2017
• Docket: A-4287-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

2 A-4287-15T1 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

4 A-4287-15T1 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.

5 A-4287-15T1 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.]

6 A-4287-15T1 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).

7 A-4287-15T1 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

8 A-4287-15T1 "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.

10 A-4287-15T1