Cavanaugh v. Pappas, No. 5--767

• Court: New Jersey County Court
• Writing for the Court: FELLER
• Citation: 91 N.J.Super. 597,222 A.2d 34
• Parties: Michael P. CAVANAUGH, an infant by his guardian ad litem, John Cavanaugh and John Cavanaugh, individually and Anna Cavanaugh, Plaintiffs, v. Spiros PAPPAS and Housing Authority of Plainfield, Defendants.
• Docket Number: No. 5--767
• Decision Date: 29 June 1966

Page 597

91 N.J.Super. 597 222 A.2d 34 Michael P. CAVANAUGH, an infant by his guardian ad litem,
John Cavanaugh and John Cavanaugh, individually
and Anna Cavanaugh, Plaintiffs,
v.
Spiros PAPPAS and Housing Authority of Plainfield, Defendants. No. 5--767. Union County Court
Law Division, New Jersey. June 29, 1966.

Page 599

[222 A.2d 35] Joseph B. Hetfield, Plainfield, for defendant, Spiros Pappas (Hetfield & Hetfield, Plainfield, attorneys).

Arnold L. Simon, East Orange, for defendant, Housing Authority of Plainfield (Simon & Kaufman, East Orange, attorneys).

FELLER, J.S.C.

This matter is before this court on defendant Spiros Pappas' motion for judgment on the pleadings.

From the complaint filed by plaintiffs, this suit sounds in negligence and nuisance. The facts of the case are as follows. On October 3, 1964 plaintiff Anna Cavanaugh fell while carrying Michael P. Cavanaugh, an infant, on a public sidewalk in front of premises known as #201 West Front Street, in the City of Plainfield, New Jersey. It is plaintiffs' contention that at the time Anna Cavanaugh fell, the sidewalk in front of the aforementioned premises 'was in a state of disrepair, broken up, and had been improperly repaired as to create a nuisance.' As a result of this condition [222 A.2d 36] Mrs. Cavanaugh, while carrying Michael, fell, injuring herself as well as the infant. From this fall and the resulting injuries, plaintiffs sustained damages for which this suit has been instituted seeking recovery for the damages and costs.

Ownership of the premises at 201 West Front Street at the time in question is not in dispute. Shortly before this accident, on September 28, 1964, defendant Pappas had conveyed by deed, without reservation, the premises to codefendant Housing Authority of Plainfield. As a result of this deed, Pappas had definitely divested himself of title and all rights to possession or of re-entry for repairs or for any other purpose.

Page 600

After the institution of this suit, the Housing Authority filed a cross-claim set forth in its answer, seeking indemnification from Pappas in the event liability should be determined against it. It further demands contribution from the Pappas, pursuant to the Joint Tortfeasors Contribution Act.

It must be stated here that plaintiffs did not appear to contest Pappas' motion nor does it appear that they intended to or wanted to contest it.

Pappas contends that since he sold the property in question before the alleged accident, he can in no way be held liable for the damages resulting from the injuries sustained as a result of the fall. He urges that this is true according to the law of this State, whether plaintiffs' complaint sounds in negligence, nuisance, or both.

In opposition to Pappas' contention, the Housing Authority argues that he can be held liable in part for the damages sustained by plaintiffs as a result of injuries sustained in the alleged fall. To support their argument, they cite case law to this effect.

Pappas made his motion on the basis of R.R. 4:12--3. This reads as follows:

'After the pleadings are closed but within such time as not to delay the any party may move for judgment on the pleadings, with briefs. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 4:58, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 4:58.'

In interpreting this rule, our courts have held that a court must on a motion of this type concern itself with the material allegations of fact precipitated by the pleadings in the light of the law on the subject of the same nature. Baldwin Const. Co. v. Essex County Board of Taxation, 24 N.J.Super. 252, 93 A.2d 800 (Law Div. 1952), affirmed 27 N.J.Super. 240, 99 A.2d 214 (App.Div.1953). In that case the court, with respect to a motion of the type made here, said:

Page 601

'This residue of well-pleaded fact is accepted as true under Rule 3:12--3, supra, as it is under the federal rule which is its counterpart. Federal Rules Civil Procedure, Rule 12(c), 28 U.S.C.A.; Hackensack Water Co. v. North Bergen Twp., 103 F.Supp. 133 (D.C.N.J.1952). The movant admits not only the well-pleaded facts, but all legitimate inference which they accommodate. Kelly v. Hoffman, 137 N.J.L. 695, 61 A.2d 143, 5 A.L.R.2d 951 (E. & A. 1948). The power to exercise judgment on the pleadings is so drastic in result that it is exercised sparingly, and only in case the pleading, liberally construed in favor of the pleader, is clearly and palpably insufficient in a legal sense. Evangelista v. Public Service Coord. Transport, 7 N.J.Super. 164, 72 A.2d 534 (App.Div.1950).'

Keeping in mind the guidelines well enunciated in the above quotation, this court will now turn to the law applicable to the facts in this case.

Pappas relies primarily on two cases in support of his motion: Sarnicandro v. [222 A.2d 37] Lake Developers, Inc., 55 N.J.Super. 475, 479, ...