NOT FOR PUBLICATION WITHOUT THE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.
7 A-0358-15T3
RAYMOND EKAMBI VS. BEATRICE J. WALLS (L-4784-13, ESSEX COUNTY AND STATEWIDE)
Combined Opinion