Mineros v. London
| Decision Date | 19 June 2018 |
| Docket Number | DOCKET NO. A-1091-15T4 |
| Parties | AIDA MINEROS, Plaintiff-Appellant, v. DIANA LONDON, Defendant-Respondent, and CITY OF HOBOKEN and COUNTY OF HUDSON, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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.
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 thaton 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.
"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, showthat 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).
"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 thesame 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 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[.]"
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."
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 whenhe 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...
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