AIDA MINEROS VS. DIANA LONDON (L-3794-13, 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NOT FOR PUBLICATION WITHOUT THE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-1091-15T4

AIDA MINEROS,

Plaintiff-Appellant,

v.

DIANA LONDON,

Defendant-Respondent,

and

CITY OF HOBOKEN and COUNTY

OF HUDSON,

Defendants.

______________________________

Argued October 24, 2017 – Decided June 19, 2018

Before Judges Carroll, Leone, and Mawla.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-3794-13.

George Sommers argued the cause for appellant.

Moira E. Colquhoun argued the cause for

respondent (Colquhoun & Colquhoun, PA,

attorneys; Moira E. Colquhoun, on the brief).

PER CURIAM

Plaintiff Aida Mineros alleges she tripped and fell on a

defective sidewalk in front of a building owned by defendant Diana

London. Plaintiff claims the building is commercial in nature,

which would impose on defendant an obligation to maintain the

sidewalk. Plaintiff appeals from an August 21, 2015 order granting

summary judgment to defendant, and an October 29, 2015 order

denying reconsideration. We reverse and remand.

I.

The following facts were undisputed. On February 14, 2013,

plaintiff was walking on the sidewalk on Garden Street in Hoboken.

She alleged she tripped and fell as a result of an upraised segment

of the sidewalk adjacent to a building on Garden Street (Building).

Defendant is the owner of the Building. She lives in one unit of

the Building, which is a multi-family residence. The second-floor

unit and third-floor unit were rented, independent apartments.

The first floor included a glass-enclosed porch or sunroom. The

basement was renovated within the last two years. It has a

hallway, at least one bedroom, a bathroom, a utility room, a meter

room with four electric meters and four gas meters, and a staircase

to the first floor.

Defendant contended the Building is a three-family residence;

plaintiff conceded it was a three-family residence when a court-

ordered inspection occurred on April 20, 2015, but contended that

2 A-1091-15T4

on the date of the accident it was a four-family residence,

including a basement apartment.

On April 20, 2015, during pretrial discovery, plaintiff's

counsel inspected the Building, accompanied by Ceasar Landivar,

who took photographs. They inspected the first floor, basement,

and exterior of the Building.

After the discovery end date, defendant moved for summary

judgment. Plaintiff cross-moved for partial summary judgment.

Among the attachments to plaintiff's motion were a July 14, 2015

affidavit by Landivar that stated the majority of the square

footage of the property was used for rental purposes, and a letter

from Guy Magnusson, Esq., that stated defendant had a commercial

liability insurance policy.

On August 21, 2015, the trial court granted defendant's motion

and denied plaintiff's cross-motion. The court refused to consider

Landivar's affidavit and Magnusson's letter, finding they were

inadmissible. Plaintiff moved for reconsideration, which the

court denied on October 29, 2015. Plaintiff appeals.

II.

"Our review of a summary judgment ruling is de novo." Conley

v. Guerrero, 228 N.J. 339, 346 (2017). Summary judgment must be

granted if "the pleadings, depositions, answers to interrogatories

and admissions on file, together with affidavits, if any, show

3 A-1091-15T4

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." R. 4:46-2(c). "An issue of fact is genuine only

if, considering the burden of persuasion at trial, the evidence

submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party,

would require submission of the issue to the trier of fact." Ibid.

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). "[T]he court must accept as true all the

evidence which supports the position of the party defending against

the motion and must accord [that party] the benefit of all

legitimate inferences which can be deduced therefrom[.]" Id. at

535 (citation omitted).

III.

"When, as in this case, a trial court is 'confronted with an

evidence determination precedent to ruling on a summary judgment

motion,' it 'squarely must address the evidence decision first.'"

Townsend v. Pierre, 221 N.J. 36, 53 (2015) (citation omitted).

"Appellate review of the trial court's decisions proceeds in the

4 A-1091-15T4

same sequence, with the evidentiary issue resolved first, followed

by the summary judgment determination of the trial court." Ibid.

Accordingly, we initially consider the admissibility of Landivar's

affidavit and Magnusson's letter.

"[C]onsiderable latitude is afforded a trial court in

determining whether to admit evidence, and that determination will

be reversed only if it constitutes an abuse of discretion." State

v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "Under

that standard, an appellate court should not substitute its own

judgment for that of the trial court, unless 'the trial court's

ruling "was so wide of the mark that a manifest denial of justice

resulted."'" Ibid. (citations omitted). We must hew to that

standard of review.

A.

"A certification will support the grant [or denial] of summary

judgment only if the material facts alleged therein are based, as

required by Rule 1:6-6, on 'personal knowledge.'" Wells Fargo

Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App. Div. 2011).

Rule 1:6-6 provides: "If a motion is based on facts not appearing

of record or not judicially noticeable, the court may hear it on

affidavits made on personal knowledge, setting forth only facts

which are admissible in evidence to which the affiant is competent

to testify[.]"

5 A-1091-15T4

Landivar's July 14, 2015 affidavit stated as follows. He is

a real estate agent. He took photographs and inspected the first

floor and basement of the Building on April 20, 2015. He later

returned and took measurements of the exterior, finding the

Building to be 16.85 feet wide and 34.17 feet deep. Multiplying

those numbers, he stated the first, second and third floors were

each "approximately 575.76 square feet." The first floor's glass-

enclosed porch added "approximately 225 square feet."

Regarding the basement, Landivar's affidavit stated: the

hallway and the utility room were each "approximately 100 square

feet"; the meter room was "approximately 40 square feet"; the

staircase "had a 'footprint' of approximately 40 square feet"; the

bathroom was "approximately 56 square feet"; and the bedroom was

"approximately 180 square feet."

Landivar's affidavit opined that the basement meter room,

utility room, hallway, and staircase footprint were essential for

operating the business of renting out the second- and third-floor.

Those basement spaces and the rented second- and third-floors had

a total of "approximately 1431.52" square feet used for defendant's

business. The basement bedroom, basement bathroom, and the first-

floor interior totaled "approximately 811.76 square feet" used as

a residence by defendant, plus the enclosed porch's "approximately

225 square feet."

6 A-1091-15T4

In granting summary judgment for defendant on August 21,

2015, the trial court ruled it would "not consider the statements

contained in Landivar's affidavit as they are in violation of R.

1:6-6." The court stated "Landivar's affidavit contains various

figures regarding square footage yet Landivar never took any

measurements of the [p]remises; therefore any measurements

contained in his affidavit are based on speculation."

Plaintiff moved for reconsideration, attaching a September

21, 2015 affidavit from Landivar. Landivar stated that he had

been a real estate agent for more than seven years, that he had

"visually inspected about two thousand properties . . . for the

purpose of estimating square footage," and that he did "not need

to use a tape measure for a good estimate." He said he "walked

off distances" and "used physical features" such as floor tiles

and stair steps "to aid [him] in measuring distances" during the

inspection. He stated his purposes in visiting the Building were

"to take photographs, estimate square footage of various parts of

the building, and observe anything that might be relevant to

determining how [the Building] was being used or had been used in

the past."

In its October 29, 2015 opinion denying reconsideration, the

trial court decided to consider "this new certification of Mr.

Landivar" as it "enlighten[ed] the [c]ourt as to what he did when

7 A-1091-15T4

he entered the defendant's house." The court found its earlier

belief that Landivar did not take measurements was "incorrect."

"Landivar did take measurements while in the basement and first

floor, but those measurements were not with the use of measuring

devices, but through approximation." Nonetheless, the court

reiterated that "the estimated measurements . . . are speculative

and the trial judge might find them unreliable."

However, estimates of distance may be admissible evidence.

Our highest court has repeatedly observed that opinions about

"distance" is one of the "[t]raditional examples of permissible

lay opinions." State v. McLean, 205 N.J. 438, 457 (2011) (citing

State v. Haskins, 131 N.J. 643, 649 (1993)); State v. Laster, 71

N.J.L. 586, 588-89 (E. & A. 1905). As Landivar stated, his opinion

of the square footage of various spaces was simply the product of

multiplying two estimates of distance, namely the width and length

of the space. Such opinions concerning "distance" have long been

a "prototypical example[s]" of proper lay opinion. Fed. R. Evid.

701, Advisory Committee Note on the 2000 Amendments (quoting

Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d

Cir. 1995)).

Lay opinion testimony is admissible under N.J.R.E. 701. That

rule provides: "If a witness is not testifying as an expert, the

witness' testimony in the form of opinions or inferences may be

8 A-1091-15T4

admitted if it (a) is rationally based on the perception of the

witness and (b) will assist in understanding the witness' testimony

or in determining a fact in issue." Ibid. Landivar attested he

based his estimates on his own perceptions while inspecting the

Building. Moreover, Landivar's estimates assisted in determining

a fact in issue, namely "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." Grijalba

v. Floro, 431 N.J. Super. 57, 73 (App. Div. 2013).

Landivar's opinions on distances and square footage were not

inadmissible because he did not use a measuring device. The

longest distance he measured was less than thirty-five feet. Such

a short distance can be visually estimated. See United States v.

Peters, 743 F.3d 1113, 1114, 1116-17 (7th Cir. 2014) (upholding

the admission of a visual estimate that one vehicle was fifty to

seventy-five feet behind another). Opinions concerning even

longer distances can be measured by "pacing out the distance," as

Landivar stated he did for some of the distances. See United

States v. Panton, 846 F.2d 1335, 1337 (11th Cir. 1988). This was

not such a long distance that a tape measure or more sophisticated

measuring device was needed. Cf. Haskins, 131 N.J. at 646-47, 650

9 A-1091-15T4

(upholding the admission of tape-measure estimates of whether

drugs were sold within the one-thousand-foot distance of a school).

Making visual observations, pacing off, and utilizing tiles

and steps to estimate distances may not be as accurate or reliable

as using a measuring device, and thus may not persuade the

factfinder. However, that did not make it inadmissible. Indeed,

the trial court relied on defendant's certification, which gave

the same 16.85-foot width for the Building as Landivar, and stated

"[t]he approximate total square footage" of her residence and of

the tenants' apartments, without any explanation of how she made

her estimates. Therefore, we cannot sustain the court's August

21 ruling or its corrected October 29 ruling on the grounds such

estimates are speculative and inadmissible.

The trial court's October 29 opinion also gave other grounds

for refusing to consider Landivar's affidavit. The court

mistakenly stated that "[t]here was no request by plaintiff's

counsel to be permitted to take measurements." However, plaintiff

served a notice to permit entry upon land "for the purpose of

inspection, measuring, surveying, photographing, testing, [and]

sampling the property." Thus, plaintiff's notice requested the

full rights of entry upon land permitted by Rule 4:18-1(a)(2),

including both "inspection and measuring." Ibid. Moreover, in

moving to compel entry upon land, plaintiff's counsel certified

10 A-1091-15T4

inspection was necessary "to compare the space devoted to the

owner's residential occupancy and the space devoted to income-

generating apartments."

Defendant objected that any entry would be an invasion of her

and her tenants' privacy. After a March 25, 2015 hearing, the

trial court, ordered: "Plaintiff's counsel and/or his experts

shall be permitted to inspect the First Floor and Basement of the

[Building]. A representative of the Plaintiff shall be permitted

to take photographs in authorized areas."

The court's October 29 opinion stated that Landivar's

measurements "went beyond" the March 25, 2015 order. However,

defense counsel, who followed Landivar throughout the inspection,

certified "[n]o measurements of any kind were taken during the

inspection as they were not permitted by the court's Order." Thus,

it does not appear the order was violated even if it precluded use

of measuring devices or other physical measurements. In any event,

the order did not preclude those inspecting the Building from

making visual observations or walking through the spaces, nor did

that intrude on privacy, which was the issue at the hearing.1

Finally, the trial court stated in its October 29 opinion:

1

If defense counsel's certification creates a genuine issue of

whether Landivar did make visual observations or walk off

distances, that is an issue for the factfinder to resolve.

11 A-1091-15T4

Landivar's speculative opinions were provided

with the knowledge they would be used as a

substitute for expert opinion. This is not

permitted under our discovery rules. . . .

There is no written report because he is not

an expert. That is a problem. This is trial

by surprise. The [c]ourt finds his testimony

is not competent evidence. Therefore, the

[c]ourt will not consider it and reaffirms its

prior decision[.]

However, Landivar's opinions on distances and square footage

were appropriate lay opinions, not expert opinion. Landivar did

not claim to be an expert on distances in his July 14 affidavit.

After the trial court excluded his estimates as speculative,

Landivar's September 21 affidavit cited his experience in

estimating square footage, but his lay opinions on distances were

admissible without reference to such experience, because they were

"firmly rooted in the personal observations and perceptions of the

lay witness." McLean, 205 N.J. at 459.

Defendant asserts that Landivar had not been named in

discovery as a witness, but presents us with no interrogatories

or answers regarding the identity of witnesses. In any event, as

the trial court explained, its March 25 order "granted permission

for plaintiff's counsel, a person to take photographs and an expert

to enter the basement and the first floor" because "plaintiff's

counsel could not be a witness." Defense counsel accompanied

Landivar, who took photographs. Thus, defendant had notice

12 A-1091-15T4

Landivar might be a witness. Courts grant entry upon land under

Rule 4:18-1(a)(2) when it will "lead to the discovery of relevant

evidence," and Landivar was the only person who could testify to

the evidence discovered. Traetto v. Palazzo, 436 N.J. Super. 6,

14-15 (App. Div. 2014).

Thus, Landivar's opinions on distances and square footage,

and his observations on the equipment he saw in various rooms,

were admissible and should have been considered. See, e.g., Atlas

v. Silvan, 128 N.J. Super. 247, 251 (App. Div. 1974) (affirming

the admission of a lot purchaser's lay testimony about the "size

of the property"); Gretowski v. Hall Motor Exp., 25 N.J. Super.

192, 195-97 (App. Div. 1953) (reversing the exclusion of "the

testimony of the witness relative to the widths of the cars and

of the traffic lanes and of the relative positions of the vehicles

on the highway" because lay witnesses can opine on "height, depth,

thickness, [and] width").2 The trial court could not base its

summary judgment ruling on defendant's estimates of square footage

without considering Landivar's differing estimates.

2

On the other hand, it would not have been an abuse of discretion

to exclude those portions of Landivar's affidavit which exceeded

the bounds of lay opinion by opining that the utility room and

meter room, which provided services to both defendant's residence

and the tenants' apartments, and the hallway and staircase

providing access to those rooms, should be counted solely as

commercial.

13 A-1091-15T4

B.

To oppose summary judgment by showing defendant had a

commercial insurance policy on the Building, plaintiff's counsel

submitted a certification attaching "a true copy" of (1) the

declarations page of a "Combination Dwelling Policy" issued to

defendant by Farmers Mutual Fire Insurance Company with a

$1,000,000 liability coverage for each occurrence, and (2)

Magnusson's January 15, 2015 letter to plaintiff's counsel and

defense counsel. In the letter, Magnusson asked for an update on

the litigation, stating that his "office was retained by State

Farm Insurance Company to represent [defendant] under a tenant's

policy regarding the unit she lives in at [the Building]," and

that defense counsel was representing defendant "pursuant to a

commercial general liability policy insuring the building located

at [the Building]." The trial court found the Magnusson letter

was "insufficient to demonstrate that Defendant had a commercial

policy as it is inadmissible hearsay."

"[E]vidence submitted in support of a motion for summary

judgment must be admissible." Jeter v. Stevenson, 284 N.J. Super.

229, 233 (App. Div. 1995). If "the certifying attorney [lacks]

any firsthand knowledge concerning the exhibits or facts contained

therein," the document must be shown to be admissible. See Sellers

v. Schonfeld, 270 N.J. Super. 424, 428 (App. Div. 1993). "Hearsay

14 A-1091-15T4

may only be considered if admissible pursuant to an exception to

the hearsay rule." New Century Fin. Servs., Inc. v. Oughla, 437

N.J. Super. 299, 317 (App. Div. 2014).

Plaintiff argues Magnusson's letter is admissible hearsay as

"a statement by the party's agent or servant concerning a matter

within the scope of the agency or employment, made during the

existence of the relationship." N.J.R.E. 803(b)(4). We agree.

Magnusson identified himself as representing defendant, he made

his statement during the existence of that representation, and his

statement concerned a matter within the scope of that

representation, namely the suit against defendant. "Under New

Jersey's very broad concepts of admissibility of evidence,"

Magnusson's letter generally met the limited requirements of

N.J.R.E. 803(b)(4). Spencer v. Bristol-Meyers Squibb Co., 156

N.J. 455, 462-63 (1998) (citation omitted).

Defendant asserts Magnusson represented State Farm, not

defendant. However, when an insurance company provides its insured

with an attorney, "[t]he intrusion of the insurance contract does

not alter the fact that the relationship with the insured is that

of attorney and client," and "that the relationship is the same

as if the attorney were hired and paid directly by the insured."

Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 338 (1980)

(citations omitted).

15 A-1091-15T4

Defendant also asserts that "[a]n admission, by an attorney,

to be binding upon his client, must be distinct and formal, and

made for the express purpose of dispensing with the formal proof

of some fact at the trial." Hogenson v. Serv. Armament Co., 461

P.2d 311, 314 (Wash. 1969) (quoting State v. Wheeler, 161 P. 373,

374 (1916)); see Czuj v. Toresco Enters., 239 N.J. Super. 123, 128

(Law Div. 1989). However, the issue of whether an attorney's

statement is binding as a stipulation should be a different issue

than whether it is admissible in evidence under N.J.R.E. 803(b)(4).

Nonetheless, Magnusson's statement that defense counsel was

representing defendant under a commercial general liability policy

was "only admissible under N.J.R.E. 803(b)(4) if it would have

been admissible if made by the declarant at the hearing." Spencer,

156 N.J. at 461 (quoting Richard J. Biunno, Current N.J. Rules of

Evidence, cmt. 4 on N.J.R.E. 803(b)(4) (1998)); see N.J.R.E. 805.

Thus, if the declarant's statement was itself only hearsay, and

not admissible under any of the exceptions to the hearsay

exclusionary rule, it could not be admissible under N.J.R.E.

803(b)(4). It is unclear whether Magnusson's statement was

inadmissible hearsay, admissible hearsay based on statements by

defendant or defense counsel, or personal knowledge based on

Magnusson's examination of the Farmers Mutual policy.

16 A-1091-15T4

The trial court instead relied on defense counsel's

certification that she had "been engaged in defending [Farmers]

Mutual insureds for 25+ years," that she was "familiar with the

Combination Dwelling Policy," and that it was "a personal lines

policy and not a commercial lines policy." However, it is likewise

unclear how defense counsel's statement would have been

admissible. As the court pointed out, defense counsel was

"certainly not going to be testifying at trial." Defense counsel

responded that defendant would testify that it was a personal

policy, but submitted no certification from defendant or any basis

for such testimony.

We conclude that neither party showed she had admissible

evidence that the combination dwelling policy was commercial or

personal in nature. Therefore, the trial court erred in concluding

the combination dwelling policy was "a personal lines policy."

Because the parties presented the court "with an inadequate record,

we are unable to conclude that there is no genuine issue" as to

the nature of the insurance policy. Lyons v. Twp. of Wayne, 185

N.J. 426, 437 (2005).

IV.

We must consider whether the remaining competent evidence

showed "that there [wa]s no genuine issue as to any material fact

challenged and that the moving party [wa]s entitled to a judgment

17 A-1091-15T4

or order as a matter of law." R. 4:46-2(c). We first address the

governing substantive law.

Until Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981),

"[g]enerally, 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.'" Qian v. Toll Bros. Inc., 223 N.J. 124, 135-36 (2015)

(quoting Yanhko v. Fane, 70 N.J. 528, 532 (1976)). In Stewart,

our Supreme Court partially "overrule[d] Yanhko and h[e]ld that a

plaintiff has a cause of action against a commercial property

owner for injuries sustained on a deteriorated sidewalk abutting

that commercial property when that owner negligently fails to

maintain the sidewalk in reasonably good condition." 87 N.J. at

149. The Court did "not reach the question of whether the same

duty should be imposed on owners of residential property." Id.

at 159 n.6. "Since Stewart, residential-public-sidewalk immunity

has remained intact." Qian, 223 N.J. at 136.

The Court in Stewart explained: "As for the determination of

which properties will be covered by the rule we adopt today,

commonly accepted definitions of 'commercial' and 'residential'

property should apply, with difficult cases to be decided as they

arise." Id. at 160. The Court stated that "apartment buildings

would be 'commercial' properties covered by the rule." Id. at 160

18 A-1091-15T4

n.7. The Court later held a couple's ownership of a three-family

residence in which they did not reside and which they rented out

for profit "was clearly a business pursuit," and the plaintiff's

"claim against the [couple] for maintaining a dangerous condition

on the sidewalk abutting their property is cognizable only because

of the commercial nature of the [couple's] ownership." Wickner

v. Am. Reliance Ins. Co., 141 N.J. 392, 394, 400-01 (1995).

Since Stewart, "the Appellate Division has parsed closely

whether 'residential' property has been decamped to commercial

demarcation through various uses made of the premises." Luchejko

v. City of Hoboken, 207 N.J. 191, 206 & n.5 (2011). Among the

"difficult cases [which] have probed the gray area of the

commercial/residential distinction" are owner-occupied residences

where some of the space is rented to tenants. Id. at 209-10 & n.6

(citing Avallone v. Mortimer, 252 N.J. Super. 434, 438 (App. Div.

1991) (acknowledging immunity for "owner-occupants whose residency

is established to be the predominant use," but reversing summary

judgment for defendants and remanding "to permit exploration of

the predominance of use issue")). "[I]n determining whether an

owner-occupied two-or three-family home is deemed 'residential'

or 'commercial,' courts have considered the nature of the ownership

of property and the predominant use of that property." Grijalba,

431 N.J. Super. at 67.

19 A-1091-15T4

In Grijalba, it was asserted that the defendant resided in

the basement and rented out the two-family house above. Id. at

59-60. We reversed summary judgment for defendants and remanded

for consideration of the following factors to determine whether

such a property was 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.]

Here, the trial court recognized that "[d]espite the

extensive body of case law on Stewart liability, there are no

reported decisions addressing the factual context at issue here[:]

whether an owner[-]occupied three-family building where the units

are rented at market rates is commercial or residential." The

court applied Grijalba's four factors.

A.

20 A-1091-15T4

The first factor is "the nature of the ownership of the

property, including whether the property is owned for investment

or business purposes." Ibid. The trial court found "Defendant's

Property is primarily her residence," and her renting out the

second and third floors was "incidental to the Property's primary

use[:] serving as Defendant's residence."

It is difficult to reach that finding under the summary

judgment standard. The trial court referenced facts set forth in

defendant's certification that she lived there twelve months a

year and that she bought the property in 1982. An owner's full-

time, long-term residence is more likely to indicate residential

ownership than part-time, recent residence. See Avallone, 252

N.J. Super. 438. However, the evidence indicated defendant also

owned the Building for "business purposes, such as to yield a

profit," as discussed below. Grijalba, 431 N.J. Super. at 72.

Defendant's answers to supplemental interrogatories showed she had

rented out both apartments since at least 2003, for between $1340

and $1675 per month.

Where a property was used for residential purposes but owned

solely for commercial purposes, like an apartment building, "it

was the nature of the ownership that mattered, not the use to

which the property is put." Hambright v. Yglesias, 200 N.J. Super.

392, 395 (App. Div. 1985). However, where the owner both resides

21 A-1091-15T4

in and rents out the property, the nature of the ownership is

difficult to discern, and this factor becomes less telling.

"Normally, 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." Grijalba, 431

N.J. Super. at 65. Thus, we examine the predominant use of the

Building.

B.

The second factor is "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." Id. at

73. For such mixed-use properties, we have held that "the

residential sidewalk exception be continued for owner-occupants

whose residency is established to be the predominant use."

Avallone, 252 N.J. Super. at 438. If "[t]he area leased is a

small portion of the total area," then "[s]uch an arrangement

would be predominantly residential." Id. at 438-39 (remanding "to

permit exploration of the predominance of use issue"); see

Grijalba, 431 N.J. Super. at 73 (remanding because "the record is

silent regarding the size of the house and the amount of space

that [the owner] occupied on the date of the accident").

22 A-1091-15T4

For the reasons previously discussed, we must void the trial

court's finding on predominant use. The court improperly refused

to consider Landivar's affidavit, and instead mistakenly credited

defendant's certification that "the approximate square footage of

the premises [on which defendant resides] is 1,600 square feet

whereas the square footage of the other apartments equals 967

square feet." The trial court concluded: "Because the space

occupied by Defendant exceeds that of the Tenants, the [c]ourt

finds that the predominant use factor favors a residential status."

As set forth above, Landivar's affidavit constituted

competent evidence that the rented second- and third-floor

apartments totaled approximately 1151.52 square feet, and that

defendant's first-floor residence was approximately 575.76 square

feet. Landivar noted that the first floor also included a glass-

enclosed porch of approximately 225 square feet, but that it

"appeared to be new construction."

Regarding the basement, Landivar attested that the basement's

approximately 100-square-foot utility room contained three water

heaters and at least four water lines, including two heaters and

two water lines for the tenants' apartments. He swore the

approximately forty-square-foot meter room included four gas

meters and four electrical meters, with a gas and electric meter

for each of the tenants' apartments. This evidence indicated the

23 A-1091-15T4

approximate 140 square feet of these rooms were utilized for the

commercial use as well as defendant's residential use. Similarly,

Landivar noted that the approximately 100-square foot hallway and

the staircase with a footprint of 40-square feet were the only

access to those two mixed-use rooms, indicating they served both

the commercial use and defendant's residential use. Landivar did

not contest that the basement bedroom and bathroom, totaling

approximately 236 square feet, were not currently in commercial

use.

Therefore, according to Landivar's affidavit, approximately

280 square feet served both the commercial rental use and

defendant's residential use, approximately 1151.52 square feet

were indisputably devoted solely to the commercial use, and

approximately 811.76 (575.76 + 225) square feet were devoted solely

to defendant's residential use. If the glassed-in porch is counted

toward defendant's residential use, the total of approximately

1036.76 (575.76 + 225 + 236) square feet currently devoted solely

to defendant's residential use is still less than the 1151.52

square feet devoted solely to commercial use. Thus, Landivar's

24 A-1091-15T4

affidavit raised a genuine issue of material fact as to the

predominant use of the Building.3

Landivar also asserted facts indicating the basement may have

been a separate, fourth apartment when plaintiff allegedly fell

on February 14, 2013. He cited the four electric meters, four gas

meters, at least four water mains, and four buzzers to the

building. His affidavit stated "[t]he renovations in the basement

appeared very recent," including a water heater with "a build in

date of March 3, 2014." Defendant conceded the "basement was

damaged as a result of Superstorm Sandy, and was repaired as a

result." As Superstorm Sandy struck less than four months before

plaintiff's alleged fall, a genuine issue was raised as to whether

the renovations occurred after the incident. Moreover,

defendant's certification stated there is a second bedroom in the

basement, raising the question of the use to which that room was

put before the renovations.4

3

Defendant filed a reply certification asserting that the first

floor is 872 square feet, and that the total tenant space is 961

square feet. These figures differ from defendant's original

certification as well as Landivar's certification. Moreover,

defendant provides no information on the square footage of the

basement. Defendant's reply certification highlighted the

existence of a genuine issue of material fact.

4

Plaintiff also cites the original answer, in which defense

counsel admitted paragraph 8 of the amended complaint alleging:

"Upon information and belief, [the Building] is a four family

25 A-1091-15T4

The trial court found "[t]he mere existence of four buzzers

and waterlines is insufficient to create even a genuine issue of

fact as to whether the property is a four-family home." However,

the court did not mention the four gas meters and four water meters

mentioned in Landivar's affidavit. Drawing all reasonable

inferences in favor of plaintiff, the existence of four buzzers,

gas meters, electrical meters, and waterlines creates a genuine

issue of material fact regarding whether the Building had four

units prior to the renovations. In any event, this issue can be

resolved on remand as we find a genuine issue of material fact

regarding the predominant use of the Building even in its current

three-unit configuration.5

C.

The third factor is "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

building, including a basement apartment, including tenants other

than London." However, we do not consider the original answer as

evidential, as defendant amended its answer to deny the allegations

in paragraph 8.

5

Defendant's reply certification asserted that the fourth gas and

electric meters serve the common entrance hall and stairs leading

to the rented second and third floors, and that "[t]here are four

buzzers since the bedrooms are in the basement and I cannot hear

the buzzer if I am downstairs." These belatedly-asserted facts

were not admitted, and added to the genuine issue of material

fact.

26 A-1091-15T4

is realizing a profit." Grijalba, 431 N.J. Super. at 73. The

trial court found it was "quite apparent that Defendant's property

has the capacity to generate income," but found the extent was in

dispute. The court found this factor was not dispositive because

[t]he determination of residential versus

commercial status cannot be based upon profit

alone, or else the status of the property

would depend on the vagaries of the

marketplace. In the circumstance of hybrid

use, when the owner's occupancy, in terms of

time or space, is greater than or equal to the

rental occupancy, the property shall be

considered residential regardless of whether

the rental space generates a profit.

[Wasserman v. W.R. Grace & Co., 281 N.J.

Super. 34, 39 (App. Div. 1995) (citing

Avallone, 252 N.J. Super. at 437-38).]

The trial court mistakenly relied on Wasserman, which

addressed an owner's one-room home office rather than a rental

apartment. Id. at 36. First, it is unclear whether defendant's

"occupancy, in terms of time or space, is greater than or equal

to the rental occupancy." Ibid. Second, in Avallone we required

"consideration of the factors of extent of income" to help "enable

a trial judge to determine whether the owner's residential

occupancy preponderates." 252 N.J. Super. at 438. Third, we have

since reaffirmed that, "[a]lthough we do not use profit alone to

resolve the residential-commercial distinction, profit is a factor

to weigh in evaluating the commercial nature of the property."

27 A-1091-15T4

Grijalba, 431 N.J. Super. at 72. Indeed, "whether a property's

predominant use has the capacity to generate income, regardless

of whether an actual profit is obtained through the use," is

"central to the Appellate Division's inquiry." Luchejko, 207 N.J.

at 206.

The capacity to generate income and profit is central because

"[t]he objective in creating the commercial property exception to

the no-liability rule was to impose liability upon the party in a

better position to bear the costs associated with that imposition.

Commercial landowners have that ability as well as the ability to

distribute those costs" to their customers. Dupree v. City of

Clifton, 351 N.J. Super. 237, 242 (App. Div. 2002) (citing Stewart,

87 N.J. at 158), aff'd o.b., 175 N.J. 449 (2003). "Like the burden

imposed on small business commercial property owners to maintain

. . . abutting sidewalks . . . , owner-occupants who are deemed

to own commercial property would be expected to spread the risk

of loss to innocent third parties too," namely their tenants.

Grijalba, 431 N.J. Super. at 70.

In opposing summary judgment, plaintiff submitted copies of

the 2012-13 apartment leases between defendant and her tenants,

showing she charged monthly rents for the second- and third-floor

apartments of $1550 and $1675, respectively. Those leases

respectively would produce annual income of $18,600 and $20,100,

28 A-1091-15T4

and a total of $38,700 in rental income annually for defendant.

Plaintiff also submitted copies of defendant's federal tax

Schedule E "Income or Loss from Rental Real Estate," showing that

her rental income in 2012 and 2013 was $33,000 and $29,100

respectively, and that after deducting taxes, insurance, repairs,

and other expenses, she netted $18,407 and $16,075 respectively.6

Given this evidence defendant's rental use of the Building

had the capacity to generate income and profit, and had done so

at the time of plaintiff's alleged fall, the trial court erred in

dismissing this factor simply because it was disputed or non-

dispositive.

D.

The trial court cites one "other relevant factor," id. at 73,

namely the nature of defendant's insurance coverage. As discussed

above, there was no competent evidence supporting the trial court's

finding that the combination dwelling policy was "a personal lines

policy," not a commercial liability policy. Thus, we find a

genuine issue on this issue as well. However, how an insurance

company characterizes its policy, and insurance itself, is of

limited probative value.

In Stewart, our Supreme Court only mentioned insurance thus:

6

It is undisputed defendant had already paid off the mortgage.

29 A-1091-15T4

We recognize that the rule adopted today will

increase the expenses of many businesses, and

will be proportionately more burdensome to

small firms than to large ones. However, we

anticipate that appropriate insurance will

become available and that the cost of such

insurance will be treated as one of the

necessary costs of doing business.

[87 N.J. at 160.]

Moreover, as the concurrence noted in arguing for sidewalk

liability for all property owners, a residential "owner generally

may purchase an insurance policy covering liability to pedestrians

injured because of defects in the sidewalk." Id. at 161

(Schreiber, J., concurring). Thus, the mere availability of

insurance does not indicate a property is commercial in nature.

See Luchejko, 207 N.J. at 208 (finding that "the possibility that

liability insurance in sufficient amounts might be purchased by

residents of a condominium organization" was no justification for

imposing sidewalk liability on them).

Similarly, that insurance shares the risk of loss among the

insurance company and its policyholders is not the cost sharing

Stewart had in mind, because that is equally true of residential

policies. Rather, "the sharing of risk originally presented in

the commercial setting of Stewart" was that "the cost of the

insurance could be shifted to patrons and other business endeavors

of the entity as a cost of doing business." Id. at 207.

30 A-1091-15T4

Subsequently, the Court stressed "the burden of higher insurance

premiums for commercial property owners as the result of the newly

imposed sidewalk liability could be spread 'through higher charges

for the commercial enterprise's goods or services,' as distinct

from residential owners, who must bear the" increased premium cost

themselves. Brown v. St. Venantius Sch., 111 N.J. 325, 331 (1988)

(quoting Mirza v. Filmore Corp., 92 N.J. 390, 397 (1983)).

The availability of insurance, or its characterization as

commercial or personal, remains relevant. See Abraham v. Gupta,

281 N.J. Super. 81, 85 (App. Div. 1995). An owner-occupier's

acquisition of both a personal and a commercial policy, or of a

policy designed to cover leasing as a business pursuit, may be

evidence that there is a commercial venture on the property.

However, the characterization of the insurance is less relevant

than the nature of the ownership, the predominant use of the

property, and the capacity to generate income and profit.

V.

Thus, our de novo review indicates the trial court's grant

of summary judgment cannot stand. The proffered evidence did not

support the court's conclusion on the nature of ownership, which

in any event is less clear or telling in such mixed-use situations.

31 A-1091-15T4

On the crucial issue of predominant use, the court mistakenly

refused to consider Landivar's affidavit, which created a genuine

issue of material fact as to whether the predominant use was

commercial. The court found a genuine issue on whether the

Building had the capacity to generate income and profit, but

mistakenly dismissed that central issue as not dispositive.

Finally, the court found the combined dwelling policy was personal

rather than commercial, but there was little or no competent

evidence on that relevant if not weighty issue.

Defendant contends that, in our prior cases, we have

repeatedly rejected extending sidewalk liability to owner-

occupiers who rent out part of their premises. However, in Borges

v. Hamed, 247 N.J. Super. 295 (App. Div. 1991), though we found

no sidewalk liability for the owner who occupied one unit of a

three-family home and rented two units to the owner's family

members with no evidence of profit, we expressly reserved the

issue of "what should be the result if defendants lived in one

apartment and rented the other two at market rates." Id. at 296.

That is at issue here.

In Avallone, where the owner-occupier also rented out an

apartment, we held that Stewart's "balancing approach" and

consideration of the "ability to pass along cost require that the

residential sidewalk exception be continued for owner-occupants

32 A-1091-15T4

whose residency is established to be the predominant use." 252

N.J. Super. at 437-38. However, we stressed "the factors of extent

of income and extent of non-owner occupancy in terms of time and

space," stated that "[w]here there are factual disputes respecting

those factors, or where their weight is unclear, these will require

resolution by a trier of fact," and remanded for consideration of

those factors. Id. at 438-39.

In Smith v. Young, 300 N.J. Super. 82 (App. Div. 1997), we

found no sidewalk liability for "a co-owned, two-family home in

which only one of the co-owners resides, with the remaining

residential unit rented to tenants by the other co-owner." Id.

at 84. We remarked "how unedifying the Stewart/Mirza commercial-

residential classification distinction is," stated it was "not

workable," and rejected a case-by-case analysis. Id. at 92-100.

Instead, we ruled the Supreme Court "had no intention to subsume

small owner-occupied dwellings, such as two- or three-family

homes, within the classification of commercial property," putting

them in an exempt "category of their own." Id. at 99-100. However,

the Supreme Court subsequently reaffirmed "the

residential/commercial dichotomy," finding that, "although a

handful of difficult cases have probed the gray area of the

commercial/residential distinction, the framework continues to

provide guidance and predictability for the overwhelming majority

33 A-1091-15T4

of property owners." Luchejko, 207 N.J. at 209-10 & n.6 (citing,

e.g., Avallone, 252 N.J. Super. at 438).

In Grijalba, the defendant argued Smith "created a bright-

line rule that all owner-occupied two- and three-family houses are

considered 'residential' for purposes of sidewalk liability law."

431 N.J. Super. at 60. Emphasizing that Smith involved an "co-

owner-occupied two-family house," Grijalba "agree[d] with the

proposition expressed in Smith that typical owner-occupied two-

family homes are generally in a category of their own and that an

exploration of the predominant use of that type of property is

usually unwarranted." Id. at 68-69.

However, we ruled Smith did not govern the treatment of three-

family homes, and found it distinguishable because in Grijalba it

was alleged "the property owner converted her two-family home into

a basement-owner-occupied three-family home for business

purposes." Id. at 69-70. We stated that "[t]he Stewart Court did

not establish a bright-line rule for those anticipated difficult

cases," and that "owner-occupied two- and three-family structures,

have been analyzed, as expected, as they arise on a case-by-case,

fact-sensitive basis." Id. at 71; see id. at 62, 67, 73-74. We

remanded "[b]ecause there are unresolved and disputed factual

issues regarding the nature of the ownership and the use of the

34 A-1091-15T4

property," as well as its capacity to generate income and profit.

Id. at 59, 72. We do the same here.

VI.

Plaintiff also appeals the trial court's denial of the portion

of his cross-motion for summary judgment which requested that

defendant produce a copy of the policy or policies insuring the

Building. The court denied the request because it violated Rule

4:24-2, which states: "Unless the court otherwise permits for good

cause shown, motions to compel discovery and to impose or enforce

sanctions for failure to provide discovery must be made returnable

prior to the expiration of the discovery period." Plaintiff has

failed to show good cause or an abuse of discretion.

Reversed and remanded. We do not retain jurisdiction.

35 A-1091-15T4