                                NOT FOR PUBLICATION WITHOUT THE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-4397-17T1

DIANE J. KECHEJIAN and
GREGORY KECHEJIAN,
her spouse,

           Plaintiffs-Appellants,

v.

WANAQUE RESERVE
CONDOMINIUM ASSOCIATION,
INC., FIRST SERVICE
RESIDENTIAL MIDATLANTIC,
LLC, LAN EXTERIOR CONSULTING,
LLC a/k/a LAN EXTERIORS, TICO'S
LANDSCAPING, and TICO'S
LAWN CARE, LLC,

           Defendants-Respondents,

and

LAN EXTERIOR CONSULTING,
LLC, a/k/a LAN EXTERIORS,

           Third-Party Plaintiff,

v.

TICO'S LANDSCAPING,
TICO'S LAWN CARE, LLC,
and PLANNED SECURITY
SERVICES, INC.,

     Third-Party Defendants-
     Respondents.
_____________________________

            Argued June 5, 2019 – Decided August 21, 2019

            Before Judges Nugent and Reisner.

            On appeal from the Superior Court of New Jersey, Law
            Division, Passaic County, Docket No. L-2085-16.

            Lisa A. Lehrer argued the cause for appellants (Davis,
            Saperstein & Salomon, PC, attorneys; Lisa A. Lehrer,
            of counsel and on the brief; David A. Drescher, on the
            brief).

            Joao M. Sapata argued the cause for respondents
            Wanaque Reserve Condominium Association, Inc. and
            First Service Residential MidAtlantic, LLC (Tango,
            Dickinson, Lorenzo, McDermott & McGee, LLP,
            attorneys; Joao M. Sapata, on the brief).

            Thomas E. Emala argued the cause for respondent
            Planned Security Services, Inc. (McGivney, Kluger &
            Cook, PC, attorneys; William D. Sanders and Emily R.
            Weisslitz, of counsel and on the brief; Thomas E.
            Emala, on the brief).

PER CURIAM

      Plaintiff Diane J. Kechejian, a unit owner of a condominium in the

Wanaque Reserve Condominium complex, appeals the summary judgment

dismissal of her personal injury action, which arose when she slipped and fell in


                                                                         A-4397-17T1
                                       2
a common area of the complex.1 She also appeals an interim order that denied

her cross-motion to file a fourth amended complaint and add an additional

defendant.

      Defendant Wanaque Reserve Condominium Association, Inc.'s by-laws

immunize the Association from liability to unit owners for bodily injury

occurring on the Association's common elements. The relevant by-law excepts

cases of bodily injury caused by the Association's willful, wanton, or grossly

negligent acts. The trial court granted the Association's summary judgment

motion after determining the evidence on the motion record did not establish a

triable issue as to whether the Association acted in a grossly negligent, willful,

or wanton manner. Finding no error in the trial court's decision, and finding no

abuse of discretion in the trial court's denial of plaintiff's cross-motion to amend

the complaint, we affirm.




1
   Gregory Kechejian alleged in the complaint he had been deprived of the
services and consortium of his wife, Diane J. Kechejian. Because his claim is
derivative, and for ease of reference, in this opinion we refer to Diane J.
Kechejian as plaintiff.
                                                                            A-4397-17T1
                                         3
                                        I.

                                        A.

      This action's history is relevant to the procedural issue plaintiff argues on

appeal. Plaintiff fell and was injured on June 18, 2015, and commenced this

action a year later, on June 9, 2016. The complaint named as defendants the

Association; its management company, FirstService Residential New York, Inc.

(FirstService); and its landscape and snow removal contractor, Lan Exterior

Consulting, LLC (Lan).      The complaint also named a number of fictitious

persons and entities. Upon the complaint's filing, the trial court issued a track

assignment notice that fixed 300 days for discovery.

      During discovery, plaintiff amended her complaint three times: first to

correct a party's name, next to add an allegation the Association was grossly

negligent, and last to add Lan's snow removal subcontractor, Tico's Lawn Care

Limited Liability Company (Tico), as a defendant. One and one-half years after

the action commenced, Lan filed a motion to file a third-party complaint against

the Association's security company, Planned Security Services, Inc. (Planned

Security). Plaintiff cross-moved to file a fourth amended complaint to substitute

Planned Security for a fictitiously named defendant. Plaintiff filed the cross-

motion on December 27, 2017, and it was returnable January 5, 2018. The


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                                        4
discovery end date was February 27, 2018, and arbitration was scheduled for

March 9, 2018.

      The trial court denied both motions. Acknowledging that motions to

amend pleadings are to be liberally granted, the court determined that granting

the motion when the parties already had more than 500 days of discovery would

unduly delay the action's resolution. The order denying the motions was dated

February 8, 2018.

      Meanwhile, on February 2, 2018, plaintiff had filed a motion to re-open

and extend discovery and to adjourn the March 9, 2018 arbitration. Plaintiff's

liability expert had died. Lan filed a cross-motion in which it argued that if the

court granted plaintiff's motion to extend discovery, the court should reconsider

its decision denying Lan's motion to file a third-party complaint against Planned

Security. Plaintiff, however, neither filed a motion to implead Planned Security

nor asked for reconsideration of its previously denied cross-motion.

      On March 8, 2018, the court granted plaintiff's motion to re-open

discovery. The court extended discovery through May 1, 2018. In the same

order, the court cancelled the scheduled arbitration, set deadlines for additional

expert reports, and fixed the trial date as May 14, 2018. The court granted Lan's

motion to file a third-party complaint against Planned Security.


                                                                          A-4397-17T1
                                        5
      The case was not tried. The Association and the other defendants filed

summary judgment motions. 2      On April 23, 2018, the trial court granted

summary judgment to the Association and FirstService. The court dismissed the

complaint and all cross-claims against those entities. This appeal followed.

                                       B.

      Construed in the light most favorable to plaintiff as the non-moving party,

Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018), the

motion establishes the following material facts. Plaintiff and her husband owned

a unit in the condominium complex operated by the Association.               The

condominium complex was an "over [fifty-five] planned community." Unit

owners were permitted to have pets and the condominium development included

certain areas where owners could walk their dogs.

      The Association's by-laws included the following immunity provision:

            Article XVI. Tort Immunity

            In accordance with N.J.S.A. 2A:62A-13, the
            Association will not be liable in any civil action
            brought by or on behalf of the Unit Owner to respond
            to damages as a result of bodily injury to the Unit
            Owner occurring on the Association's Common
            Elements. This grant of immunity from liability will not

2
   Plaintiff has not appealed the summary judgment dismissal of its complaint
against Lan and Tico.


                                                                         A-4397-17T1
                                       6
             be effective if the Association causes bodily injury to
             the Unit Owner on the premises by its willful, wanton
             or grossly negligent act of commission or omission.

      Plaintiff's accident occurred at approximately 8:45 a.m. on Sunday,

January 18, 2015. Plaintiff had exited her building's parking garage and begun

to walk on the driveway when she slipped and fell on ice.

      The Association had contracted with Lan to perform snow and ice

removal. Lan subcontracted the snow removal to Tico's Lawn Care. Because

no managerial or maintenance personnel are on site during weekends, "it is up

to the security guard at the gate entrance to the property to contact the snow

removal contractor if necessary."

      Security guard personnel are stationed in a gatehouse at the entrance to

the condominium development. The guards do not walk the property. Rather,

they remain at the gatehouse, which is not near the area where plaintiff fell.

      On a weekend, if a security guard decided it was necessary to contact the

snow removal contractor, the guard would call a Lan supervisor. Lan would not

perform snow or ice removal at the condominium complex unless the security

guard first notified LAN that such work was needed.

      According to an expert meteorologist's report, the following weather

conditions were relevant to plaintiff's fall:


                                                                          A-4397-17T1
                                         7
            On January 18, 2015, no snow or ice cover was present
            at the start of the day (midnight). Precipitation in the
            form of freezing rain and/or sleet fell frequently from
            around 7:46-8:00 AM EST to 3:00-4:00 PM EST. After
            3:00-4:00 PM EST, precipitation fell frequently in the
            form of rain to around 6:25-7:10 PM EST and then
            intermittently to around 7:55-8:40 PM EST.
            Approximately 0.2 inch of ice accumulated on this day.
            Due to melting and compaction, a trace (less than 0.1
            inch) or patches of ice cover was present at the end of
            the day. The high temperature was near 35 F and the
            low temperature was near 19 F.

      The Association's employee who was responsible for property

management was on vacation in another state on the day plaintiff fell.

Nevertheless, at 10:14 a.m., she emailed Lan and inquired where they were. She

"was advised that Lan was still three hours away."

      Lan's president testified at depositions that Lan would notify Tico's if Lan

received notification from a guard at the condominium's gatehouse that snow

removal services were necessary. According to the deposition testimony of a

Lan representative, Lan telephoned Tico's at 4:17 p.m. on the date of plaintiff's

accident.

                                       II.

      Plaintiff first contends the trial court erred by granting summary judgment

to the Association and FirstService because the factual record established a

prima facie case of gross negligence.        Plaintiff adds that the trial court

                                                                          A-4397-17T1
                                        8
improperly relied upon unpublished and distinguishable case law in reaching its

decision, and improperly drew conclusions concerning the motives of the

Association and FirstService.

      We need not address plaintiff's contentions about the trial court

improperly relying upon unpublished case law and motive evidence, because our

review of an order granting summary judgment is de novo. Appellate courts

"review[] an order granting summary judgment in accordance with the same

standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)

(citations omitted). Our function is not "to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for

trial." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); accord, R. 4:46-

2(c). We view competent evidential materials presented in the light most

favorable to the non-moving party. R. 4:46-2(c); Brill, 142 N.J. at 540. A trial

court's determination that a party is entitled to summary judgment as a matter of

law is not entitled to any "special deference," and is subject to de novo

review. Cypress Point Condo. Ass'n, Inc. v. Adria Towers, L.L.C., 226 N.J. 403,

415 (2016) (citation omitted).




                                                                         A-4397-17T1
                                       9
      With that standard in mind, we turn to the primary issue: whether plaintiff

established a prima facie case of gross negligence. We conclude she did not.

      "The tort of gross negligence falls on a continuum between ordinary

negligence and recklessness, a continuum that extends onward to intentional

conduct." Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363 (2016)

(citing Introductory Notes, Model Jury Charge (Civil) § 5.12 "Gross

Negligence" (approved Feb. 2004))

      . Thus, "[w]hereas negligence is 'the failure to exercise ordinary or

reasonable care' that leads to a natural and probable injury, gross negligence is

'the failure to exercise slight care or diligence.'" Id. at 364 (quoting Introductory

Notes, Model Jury Charge (Civil) § 5.12 "Gross Negligence" (approved Feb.

2004)). Gross negligence is more than inattention or mistaken judgment. Ibid.

      Contrary to plaintiff's argument, the motion record does not demonstrate

that Wanaque and FirstService failed to exercise "slight care or diligence." The

Association had a snow and ice removal company under contract to provide

services as necessary. The Association also had a procedure in place whereby

its security guards would notify the snow removal contractor if the services of

the latter were needed. Moreover, on the day of plaintiff's accident, the freezing

rain or sleet did not begin to fall until about 7:45 or 8:00 a.m., one hour or less


                                                                             A-4397-17T1
                                        10
before plaintiff fell. Additionally, the precipitation in the form of sleet or rain

continued to fall until 3:00 in the afternoon or later.    Even if the security

guard had notified Lan the instant precipitation began to fall, it is questionable

whether Lan could have responded and reached the specific area where plaintiff

fell within an hour. It is also questionable in view of the continuously falling

precipitation whether Lan's services would have prevented the condominium

driveway from being slippery.

      Plaintiff emphasizes certain events that occurred after she fell, including

conflicting evidence about when the security guard notified the snow removal

contractor.    Those events, however, could not have proximately caused

plaintiff's accident.

      In view of the systems the Association had in place to address snow and

ice on its premises when required, and given the timeline between the onset of

precipitation and plaintiff's fall, the record does not demonstrate, as plaintiff

argues, that the Association and FirstService failed to exercise slight care o r

diligence, that is, they were grossly negligent. Plaintiff did not establish a triable

issue of gross negligence.      Accordingly, we affirm the grant of summary

judgment.




                                                                              A-4397-17T1
                                         11
                                        III.

      Except for the following brief comments, plaintiff's second argument—

the trial court erred in denying its motion to file a fourth amended complaint to

add Planned Security —is without sufficient merit to warrant further discussion.

R. 2:11-3(e)(1)(E).

      We review a trial court's grant or denial of a motion to amend a complaint

for abuse of discretion. Kernan v. One Wash. Park Urban Renewal Assocs., 154

N.J. 437, 457 (1998). The trial court did not abuse its discretion when it initially

denied plaintiff's motion to file yet a fourth amended complaint as the extended

discovery end date neared. Adding another party would have unduly prolonged

resolution of the matter.

      Plaintiff criticizes the trial court for granting Lan's subsequent motion to

file a third-party complaint and not permitting her to file a fourth amended

complaint. The argument is without merit. Plaintiff never filed a motion for

reconsideration after discovery was extended so that she could retain a new

expert. Presumably the court would have granted plaintiff's motion had she filed

it. It is fundamental that "[a]n application to the court for an order shall be by

motion[.]" R. 1:6-2(a). Here, when circumstances changed, unlike Lan, plaintiff

did not apply to the court to amend its complaint by filing a motion. The trial


                                                                            A-4397-17T1
                                        12
court can hardly be accused of abusing its discretion for failing to decide a

matter that was not before it.

      For the foregoing reasons, the trial court's orders are affirmed in their

entirety. Affirmed.




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