                        NOT FOR PUBLICATION WITHOUT THE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-0358-15T3

RAYMOND EKAMBI,

        Plaintiff-Appellant,

v.

BEATRICE J. WALLS, DARRYL C.
WALLS, and LFB PROPERTIES, INC.,
individually, jointly and/or severally,

     Defendants-Respondents.
___________________________________

              Argued February 28, 2017 – Decided July 20, 2017

              Before Judges Reisner and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-4784-
              13.

              Matthew D. Kennedy argued the cause for
              appellant (Benjamin M. Del Vento, P.C.
              attorney; Mr. Del Vento, on the brief).

              Alyssa E. Spector argued the cause for
              respondent (Leary Bride Tinker & Moran, P.C.,
              attorneys; James T. Gill, on the brief).


PER CURIAM

        In this personal injury action, plaintiff Raymond Ekambi

appeals from the Law Division's orders vacating default judgment
against defendants Beatrice J. Walls and Darryl C. Walls, and

dismissing plaintiff's complaint on summary judgment.               Having

carefully reviewed the arguments raised in light of the record and

applicable law, we affirm.

      We discern the following factual and procedural history from

the record.     We view the facts from the record in the light most

favorable to plaintiff, the non-moving party.          Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).            Plaintiff was

injured from a fall on a defective sidewalk abutting a property

in East Orange.      Beatrice,1 who lived in New York, owned the

property.   Her son, Darryl, lived in the property with his family.

Darryl did not pay rent, but was responsible for all bills and

maintenance related to the property.

      Plaintiff filed suit alleging defendants were negligent for

not repairing the sidewalk's dangerous and hazardous condition.

The   process   server's   affidavit   of   service   indicated   that    he

personally served the summons and complaint on Darryl at the

residence and on Beatrice by leaving a copy with Darryl.             After

default was entered against defendants for not responding to the



1
  Our reference to defendants by their first names is done for
ease of reference because they share a last name. We mean no
disrespect.



                                   2                               A-0358-15T3
complaint, a proof hearing was conducted on March 24, 2014, and

plaintiff obtained a final judgment of default in the amount of

$64,000 plus interest.

      Defendants moved to vacate the default judgment.             On June 6,

2014, the same trial judge who entered the default judgment,

granted defendants' motion to vacate. The judge found that service

against Darryl was "uncertain," based upon Darryl's certification

that he was not personally served with a summons and complaint.

As to Beatrice, she did not live at the residence, and hence, she

could not be served there.      Defendants had a meritorious defense

to the lawsuit; the property where the fall occurred was used only

for   residential   purposes,   and       not   commercial   purposes,     and

defendants   were   not   responsible      for   the   defective    sidewalk

pursuant to Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157

(1981).

      Following discovery, defendants moved for summary judgment

contending that they were entitled to sidewalk immunity because

the property was only used for residential purposes based upon the

four-factor test set forth in Grijalba v. Floro, 431 N.J. Super.

57, 59 (App. Div. 2013).        On August 7, 2015, the motion judge

issued an order and a letter opinion granting the motion.                  The

judge determined that there were no material facts in dispute, and

that the property was only used for residential purposes and

                                      3                               A-0358-15T3
defendants were therefore entitled to sidewalk immunity.          The

judge specifically noted that "neither the plaintiff's [c]omplaint

nor his opposition to [summary judgment] contain any allegations

that the premises were used for commercial purposes."      The judge

found no merit to plaintiff's contention that the residence was

used for commercial purposes simply because Beatrice does not

maintain the property and "will benefit from the increased value

of the property with time."   The judge reasoned that an owner of

a residential property   might also receive the benefit of an

increased value when it is sold.

     To determine whether the property was primarily residential

or commercial, the judge applied the four-factor test in Grijalba,

which provides:

          (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."

          [Grijalba, supra, 431 N.J. Super. at 73.]


                                4                            A-0358-15T3
     Applying the test, the judge found that:

          As to the first factor, [Beatrice] owns the
          property in which her son resides, and neither
          party has presented any information to
          indicate that . . . [they were] . . . using
          the property for investment or business
          purposes. . . . Under the second factor, the
          predominant use of the property is strictly
          residential. There is no evidence before the
          court to indicate that [Darryl] has used the
          property in any capacity other than to live.
          Under the third factor, the current use of the
          premises is generating absolutely no income
          for either [defendant]. There exists no lease
          agreement among the defendants, and Darryl is
          not paying rent. . . . Under the fourth factor,
          . . . because Beatrice was not gaining any
          immediate economic benefit from her son's use
          of the property, the policy driving the
          [Stewart] decision is inapplicable here, as
          [she] is not deriving any benefit from the
          land that would permit her to more easily
          insure the cost of the plaintiff's injuries."

     On this appeal, we first address plaintiff's contention that

summary judgment should not have been granted.    When reviewing a

grant of summary judgment, we adhere to the same standard as the

motion judge.   Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405 (2014).   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."     Id. at 406 (quoting Brill,

supra, 142 N.J. at 540). "If there is no genuine issue of material


                                 5                          A-0358-15T3
fact," an appellate court 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) (citation omitted).            We accord no deference to the

trial judge's legal conclusions.           Nicholas v. Mynster, 213 N.J.

463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-

13 (2009)).

      Considering these principles, we discern no basis to set

aside   the    grant   of   summary   judgment     dismissing   plaintiff's

complaint.     We conclude, as did the motion judge, that the record

established defendants are entitled to sidewalk immunity because

the property was used for residential purposes.           We find no merit

to plaintiff's argument that the property was used for commercial

purposes because it was not owner-occupied, and was therefore an

investment property held to generate income when it is sold. There

was no indication that either defendant derived any economic

benefit from the property.         The mere fact that the property was

not owner-occupied does not lead to the conclusion that it was

used for an investment property.          There is no fact in the record

to   support   plaintiff's    contention    the   property   was   used   for

investment     purposes.      In   addition,      plaintiff's   speculative

assertion that the property may increase in value and be sold for



                                      6                             A-0358-15T3
a profit, does not justify classifying it as commercial under

Grijalba.

     Turning to the motion to vacate default judgment, plaintiff

argues   that   defendants   failed   to   satisfy   Rule   4:50-1,   which

requires a showing of good cause for not answering the complaint

and not presenting a meritorious defense.            We review a court's

determination of a Rule 4:50-1 motion to vacate under an abuse of

discretion standard.    U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.

449, 467 (2012).    There is "an abuse of discretion when a decision

is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis."             Id.

at 467-68 (internal quotation marks and citation omitted).            Based

upon our review of the record, in addition to our conclusion above

that defendants are entitled to sidewalk immunity, the motion

judge did not abuse his discretion in vacating the default judgment

against defendants.

     Affirmed.




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