                                NOT FOR PUBLICATION WITHOUT THE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-1262-18T4

NIVIA CARDENAS,

          Plaintiff-Appellant,

v.

MARK SEVERINO and
ANTHONY T. SEVERINO,

     Defendants-Respondents.
_______________________________

                   Argued October 15, 2019 – Decided December 5, 2019

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-3835-16.

                   Barry A. Knopf argued the cause for appellant (Cohn
                   Lifland Perlman Herrmann & Knopf, and Robert B.
                   Linder, attorneys; Barry A. Knopf, of counsel and on
                   the briefs; Audra De Paolo and Robert B. Linder, on the
                   briefs).

                   Megan K. Foster argued the cause for respondents
                   (Clark & Fox, attorneys; John Michael Clark and
                   Megan K. Foster, of counsel and on the brief).
PER CURIAM

      In this sidewalk liability action, plaintiff Nivia Cardenas appeals the Law

Division's order granting summary judgment dismissal of her complaint alleging

she fell and injured herself due to a defective sidewalk in front of vacant

property owned by defendants Mark and Anthony T. Serverino. The motion

judge determined that because the property was not being used for commercial

purposes, defendants had no duty to maintain the sidewalk in a safe condition.

Plaintiff argues the trial court erred in determining the property was not

commercial because the property was a non-owner occupied two-family home

with a potential to generate income at the time of her alleged injury. Because

we agree that the property was not being used for commercial purposes at the

time of plaintiff's accident, summary judgment was properly granted.

                                         I

      As a summary judgment motion order granted to defendants, our recitation

of the facts is derived from the evidence submitted by the parties in support of,

and in opposition to, the motion, viewed in the light most favorable to pla intiff,

and giving plaintiff the benefit of all favorable inferences. Angland v. Mountain

Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins.

Co., 142 N.J. 520, 523 (1995)).


                                                                           A-1262-18T4
                                        2
      Plaintiff was walking to a store when she fell on an uneven sidewalk,

suffering broken ribs and injuries to her back and shoulders. The accident took

place in front of a home, co-owned by the defendants, which at the time was

vacant. Plaintiff subsequently sued defendants claiming her injuries were due

to defendant's failure to maintain the sidewalk in a safe condition.

      Following discovery, defendants moved for summary judgment.

Defendants contended they were not liable to plaintiff because the property was

not used for commercial purposes when plaintiff fell, and under well-settled law,

owners of residential property cannot be held liable for a defective sidewalk.

Plaintiff opposed, arguing the test to determine whether defendants are subject

to sidewalk liability is whether their property had the ability or potential to

generate income at the time of the accident.

      The motion record revealed the following undisputed facts. Defendants

are father and son, who lived together across the street from the property. They

purchased the property in 2008 following the death of the previous owners, who

had resided in the home their whole lives. Their plan was to renovate the

property and eventually, the son, Mark, would reside there. Mark stated in his

deposition he was "probably" going to live there. The renovations, which were

done by defendants along with a sheetrock contractor and family members who


                                                                         A-1262-18T4
                                        3
specialized in electrical wiring and HVAC, had stretched over the seven years

prior to plaintiff's accident and were not completed until about six months

thereafter.

      Once the renovations were finished, Mark did not move into the property

because defendants decided to rent it instead.1 Mark stated in his deposition,

"[w]hen we finished the work[,] that's when I was starting to think, hey, is it

better for me to stay where I'm living[,] because we just spent a lot of money for

the house[,] or get the tenants in to help pay the mortgage."

      When defendants purchased the property, it was insured under a

residential dwelling policy for a two-family residence. The policy, however,

was cancelled in 2011, after the insurance carrier discovered the property was

vacant. At the carrier's insistence, defendants acquired commercial general

liability and property insurance for the property, which was in effect at the time

of plaintiff's accident.

      Judge John D. O'Dwyer granted summary judgment in favor of

defendants, entering an order dismissing plaintiff's complaint.        In a rider

accompanying the order, the judge explained the property was not commercial


1
  Defendants' affidavits reflect that Mark did not move in the property because
of unspecified "health reasons," but due to identical language used in the two
affidavits, it is indiscernible whether Mark or Anthony suffered from ill health.
                                                                          A-1262-18T4
                                        4
at the time of the accident because it was not being used for business activity in

any fashion.   Relying on our decision in Ellis v. Hilton United Methodist

Church, 455 N.J. Super. 33 (App. Div. 2018), the judge reasoned the dispositive

factor in his analysis was not "the capacity of the property to generate income

at some indeterminate point in the future, but rather on whether the property

ha[d] in the past or at the [time of the alleged injury been] used to generate

income."

      The judge distinguished plaintiff's claim from our decision in Gray v.

Caldwell Wood Prods., Inc., 425 N.J. Super. 496 (App. Div. 2012) because here,

defendants were not actively marketing the home for sale or rental, nor made it

accessible to potential buyers or tenants. In Gray, we held that sidewalk liability

attached to a vacant storefront, which was boarded up and locked with an iron

gate because it had the capacity to generate income, was accessible to potential

buyers, and was insured, presumably to protect against injuries to invitees. Id.

at 501-02. We thus stated, "[the property] had the capacity to generate income

and, had, in fact, generated income in the recent past." Id. at 501.

                                        II

      Before us, plaintiff contends summary judgment should not have been

granted because the property, at the time of the accident, was more akin to a


                                                                           A-1262-18T4
                                        5
rental home, and therefore should be considered commercial subject to sidewalk

liability for defendants. She explains that even though the property was vacant

at the time of her injury, it still could have been rented out, and because there

were people making renovations to the property, defendants were liable to them

and anyone else traversing the sidewalk adjoining the front of the property.

Plaintiff argues since the property was a rental home, it should be considered

commercial property. Wilson v. Jacobs, 334 N.J. Super. 640, 646-47 (App. Div.

2000) (declining to find that a non-owner occupied home, leased by the owner's

adult daughter, was residential for sidewalk liability purposes); Avallone v.

Mortimer, 252 N.J. Super. 434, 438 (App. Div. 1991) (holding that owner-

occupied rental homes are commercial for purposes of sidewalk liability if

residency by the owner is not the predominant use); Hambright v. Yglesias, 200

N.J. Super. 392, 394-95 (App. Div. 1985) (holding that a non-owner occupied,

two-family home, is a commercial property due to the "nature of the

ownership"). Plaintiff further argues that sidewalk liability still attaches to

vacant commercial properties. Gray, 425 N.J. Super. at 501-02.

      Plaintiff finally argues the judge improperly decided issues of fact because

he found that "[a]lthough . . . defendants had undertaken renovations, the

renovations had not reached a point where the property was commercially


                                                                          A-1262-18T4
                                        6
viable." Claiming the property was in fact habitable, as the prior owners had

lived in it prior to defendants purchase, plaintiff urges the property could have

been leased immediately, if not for defendants' decision to undertake

renovations to increase the property's rental value.

      We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016)). Thus, we consider, as the motion judge

did, "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.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.

Div. 2017) (citation omitted) (quoting Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995)). "If there is no genuine issue of material fact, we

must then 'decide whether the trial court correctly interpreted the law.'"

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.

Super. 486, 494 (App. Div. 2007)). We review issues of law de novo and accord

no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213


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                                        7
N.J. 463, 478 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581,

584 (2012)).

      Applying this standard of review, we discern no basis to set aside the grant

of summary judgment dismissing plaintiff's complaint. It is well-settled law that

residential homeowners are not liable for injuries caused by the condition of

sidewalks abutting their property, but are liable "for the negligent construction

or repair of the sidewalk by himself or by a specified predecessor in title or for

direct use or obstruction of the sidewalk by the owner in such a manner as to

render it unsafe for passersby." Yanhko v. Fane, 70 N.J. 528, 532 (1976),

overruled in part by Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981); see

also Liptak v. Frank, 206 N.J. Super. 336, 337-39 (App. Div. 1985).

      We conclude, as did Judge O'Dwyer, defendants are not subject to

sidewalk liability because the record established the property was not used for

commercial purposes. As we made clear in Briglia v. Mondrian Mortg. Corp.,

sidewalk liability turns on the status of the property at the time of the accident

in question. 304 N.J. Super. 77, 82 (App. Div. 1997). The record convinces us

that the property was not being used for a commercial purpose and was not

intended to be used in that capacity at the time of plaintiff's accident. There was

no indication that either defendant derived any economic benefit from the


                                                                           A-1262-18T4
                                        8
property. The mere fact that the property was not owner-occupied does not lead

to the conclusion that it was used as a commercial property. There are no facts

suggesting defendants attempted to repair the sidewalk or caused it to be

defective, therefore, they are "protected by common-law public sidewalk

immunity." Lodato v. Evesham Twp., 388 N.J. Super. 501, 507 (App. Div.

2006).

      In addition, we find no merit to plaintiff's argument that the property

should be considered commercial because it was capable of being rented at the

time of her accident. Plaintiff's speculative assertion that the property was

habitable and could have been rented when she tripped and fell on the adjoining

sidewalk, does not justify classifying it as commercial. The mere fact that

someone lived in the property seven years before her accident is not dispositive

that the property was fit for rental, thereby making it commercial and subject to

sidewalk liability for defendants. Moreover, defendants had not leased the

property to tenants or advertised the property for rent prior to the accident.

      To the extent we have not specifically addressed arguments raised by

plaintiff, we find they lack sufficient merit to warrant discussion in a written

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

      Affirmed.


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