DIEDRE BRADLEY VS. DYNAMIC CAPITAL PROPERTY(L-0246-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4522-15T4

DIEDRE BRADLEY,

Plaintiff-Appellant,

v.

DYNAMIC CAPITAL PROPERTY,

Defendant-Respondent.

______________________________

Argued September 19, 2017 – Decided October 20, 2017

Before Judges Leone and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-0246-
14.

James Bayard Smith, Jr. argued the cause for
appellant (John J. Pisano, attorney; Mr.
Pisano, on the brief).

John J. Gaffney argued the cause for
respondent (Hueston McNulty, PC, attorneys;
Mr. Gaffney, on the brief).

PER CURIAM

Plaintiff Diedre Bradley appeals from an April 29, 2016 order

granting defendant Dynamic Capital Property summary judgment
dismissing her personal injury complaint, and denying her motion

to amend the complaint. We affirm.

The following facts are taken from the record. Plaintiff

resides in an apartment building located at 112 Lincoln Street in

East Orange. Defendant manages the property. On January 16,

2012, plaintiff was injured when she allegedly tripped and fell

as a result of a crack on the marble stairs in the common area of

the building.

Plaintiff filed a complaint on January 13, 2014, alleging

defendant owned and negligently maintained the property.

Discovery occurred, and on May 13, 2015, defendant answered

plaintiff's interrogatories. Specifically, defendant identified

EO Lincoln Apartments, LLC (EO) as the owner of the property. On

January 15, 2016, the trial court granted plaintiff's motion to

extend discovery until March 22, 2016.

On March 28, 2016, defendant moved for summary judgment, and

plaintiff filed a cross-motion for leave to amend the complaint

to name EO as a defendant. The trial court granted defendant's

motion for summary judgment and denied plaintiff's motion for

leave to amend the complaint. Plaintiff sought reconsideration,

which was denied. This appeal ensued.

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 Plaintiff argues the trial court erred by granting defendant

summary judgment because she made a prima facie showing of

negligence. We disagree.

Our review of the order granting summary judgment is de novo.

Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999).

Appellate courts "review the trial court's grant of summary

judgment under the same standard as the trial court." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016). The court considers all of the evidence

submitted in the "light most favorable to the non-moving party,"

and determines if the moving party is entitled to summary judgment

as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995). The court may not weigh the evidence and

determine the truth of the matter. Ibid. There are cases where

the evidence "is so one-sided that one party must prevail as a

matter of law." Ibid. (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214

(1986)).

The court's role is to determine whether there is a genuine

issue for trial. Ibid. A party seeking summary judgment must

show that there is no genuine issue as to any material fact

challenged and that he or she is entitled to a judgment or order

as a matter of law. R. 4:46-2(c).

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 To sustain a cause of action for negligence, a plaintiff must

prove four core elements: (1) a duty of care, (2) breach of that

duty, (3) proximate cause, and (4) actual damages. Polzo v. Cty.

of Essex, 196 N.J. 569, 584 (2008). The burden is on the plaintiff

to establish these elements "by some competent proof." Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation

omitted). A property manager or landlord is liable for injuries

to a tenant by reason of defects of which they knew or should have

known before the accident. Dwyer v. Skyline Apartments, Inc., 123

N.J. Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973).

Plaintiff argues defendant owes her a duty pursuant to

N.J.A.C. 5:10-4.1(a), which governs the maintenance of multiple

dwellings. The regulation provides:

Owners, including agents of owners, managing
agents and superintendents shall have the
general duties outlined herein for the
maintenance of the premises, and no such
person shall be relieved from any such
responsibility hereunder by reason of the fact
that an occupant or other person shall have
similar responsibilities or shall have failed
to report any violation, nor shall any such
person be relieved of any responsibility by
the terms or provisions of any lease, contract
or agreement.

Plaintiff also asserts that pursuant to N.J.A.C. 5:10-11.2

defendant owed her a duty independent of the owner of the property,

which did not require her to name EO as a defendant. N.J.A.C.

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5:10-11.2(a), which defines the duties of a manager of a multiple

dwelling, states:

Without relieving the owner of any
responsibility placed by these regulations on
the owner, any person undertaking for and on
behalf of the owner any responsibilities for
the operation and maintenance of the premises
shall thereby assume concurrently with the
owner, responsibilities for the premises and
be subject to penalty for failure to comply
with any regulation or order relating to any
item or matter within the responsibilities so
assumed.

The trial judge considered these claims and issued an oral

opinion granting defendant summary judgment. The judge stated:

[S]ummary judgment is granted in favor of the
defendant, [] I also note that I concur in the
argument of the defendant, that there's . . .
nothing within the moving papers, the
opposition thereto or . . . the now moot motion
to amend the complaint to suggest that the
plaintiff is able to meet his (sic) burden of
proof.

One, even if Dynamic Capital property was
somehow or another could -- could continue to
be maintained as a defendant in this case,
there's no indication in . . . anything that
has been provided, that Dynamic Capital
Property, as opposed to the owner of the
property, had a duty.

There's nothing in anywhere that's been
supplied to me, to indicate [that the]
plaintiff is capable of presenting a prima
facie case establishing the existence of a
breach of any duty Dynamic Capital Property
held, nor is there anything showing that any
breach of that duty . . . proximately caused

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 any injury to the plaintiff. None of that has
been provided.

We agree there is no evidence to demonstrate defendant

breached its duty of care to plaintiff. To survive summary

judgment, plaintiff had to establish prima facie the requisite

components of negligence. Here, plaintiff produced photographs

depicting the cracked stairs, which allegedly caused her injury.

Defendant did not contest the evidence depicting the condition of

the stairs. However, plaintiff provided no evidence explaining

how long the stairs had been in such a condition, or evidence

defendant had notice of the condition of the stairs and failed to

address it, thereby proximately causing her injuries. Therefore,

plaintiff presented no prima facie evidence of breach of duty or

proximate causation for her injury. For these reasons, we affirm

summary judgment in defendant's favor.

Plaintiff next challenges the trial court's denial of her

motion to amend the complaint to name the owner of the property

as a defendant. Plaintiff argues the fictitious defendant rule

allows her to amend the complaint, and the amended complaint should

relate back to the filing of the original complaint because neither

defendant nor the owner were prejudiced by plaintiff's failure to

name the true owner prior to the expiration of the statute of

limitations.

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 "[T]he granting of a motion to file an amended complaint

always rests in the court's sound discretion." Notte v. Merchs.

Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citation omitted). We

will only reverse when the action of the trial court constitutes

a clear abuse of that discretion. Salitan v. Magnus, 28 N.J. 20,

26 (1958).

Rule 4:26-4 states:

In any action, . . . if the defendant's true
name is unknown to the plaintiff, process may
issue against the defendant under a fictitious
name, stating it to be fictitious and adding
an appropriate description sufficient for
identification. Plaintiff shall on motion,
prior to judgment, amend the complaint to
state defendant's true name, such motion to
be accompanied by an affidavit stating the
manner in which that information was obtained.

Rule 4:9-1 provides that leave of court "shall be freely given in

the interest of justice" where a party seeks leave to amend a

pleading.

Plaintiff relies on Kernan v. One Washington Park, 154 N.J.

437, 442-45 (1998), to support her argument that her request for

the late amendment of her complaint should have been granted. In

Kernan, the plaintiff slipped and fell on a curb abutting a

commercial building. Ibid. The building's owner had been in

bankruptcy and before plaintiff's fall the trustee had retained a

management company to operate the building. Ibid. Plaintiff

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named the management company in her complaint, but was unable to

identify the owner until a few days before trial because the

attorney for the defendant was "less than forthcoming" in revealing

the true owner. Ibid.

The Supreme Court permitted the late amendment of plaintiff's

complaint in Kernan because defendant was intentionally stalling.

Id. at 456. The Kernan Court said:

It appears that [the true owner]'s lawyer was
paid by the same insurance company that also
insured the Trustee and [the property
manager]. Hence, the insurance carrier is the
real party in interest in this case. That
fact suggests that defendants' strategy may
have been to allow the statute of limitations
[to] run against the Trustee and [the property
manager] while the plaintiff attempted
unsuccessfully to recover from [the true
owner].

[Ibid.]

The facts of Kernan are not analogous to this matter. Here,

plaintiff possessed the name of the owner early on and defendant

was forthcoming with the information. Indeed, plaintiff knew as

early as May 13, 2015, that EO was the owner of the property.

This was more than a year after plaintiff filed her complaint.

This was also months before the statute of limitations expired on

plaintiff's claim on January 16, 2016, yet plaintiff did not move

to amend the complaint to identify the true owner until March 30,

2016, and then only after defendant had moved for summary judgment.

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See N.J.S.A. 2A:14-2. Furthermore, the parties had completed

discovery, and the court had scheduled the matter for arbitration.

Based on these facts, the trial court noted plaintiff had

provided "[n]ot a scintilla of explanation . . . why . . . no

attempt was made to properly . . . amend the complaint to name the

owner." The trial court did not abuse its discretion in denying

the late amendment.

Lastly, plaintiff argues that, "although the identity of the

owner could have been ascertained prior to this time, there is no

proof establishing that the lapse of time has resulted in a loss

of evidence or impaired its ability to defend, nor is there any

suggestion that the plaintiff has been advantaged." We disagree.

We have stated "[t]here cannot be any doubt that a defendant

suffers some prejudice merely by the fact that it is exposed to

potential liability for a lawsuit after the statute of limitations

has run." Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 631

(App. Div. 1997). In Younger v. Kracke, 236 N.J. Super. 595, 602-

03 (Law Div. 1989), the Law Division stated:

The statute of limitations is meant to
"protect considerations of essential fairness
to defendant." Because of [plaintiffs']
failure to diligently pursue their cause of
action . . . [i]f the court were to allow the
plaintiffs to amend their original complaint
. . . it would not only fail to "penalize
delay" on the plaintiffs' part, but would also
disregard "considerations of essential

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 fairness to defendants", thereby violating the
purpose behind the statute of limitations.

Given plaintiff's delay and the resulting prejudice, it was not

an abuse of discretion to deny the motion to amend.

That conclusion is not altered merely because plaintiff named

"ABC Corporation" as a fictitious defendant. Plaintiff's

complaint made no allegations of liability concerning ABC

Corporation. Moreover, her motion to amend sought to substitute

EO for Dynamic, not for ABC Corporation. In any event, a plaintiff

who includes a fictitious defendant "is required to proceed

diligently to amend the complaint without prejudice to the

defendant to be joined[,]" and only then can amendment of the

complaint relate back and allow an action otherwise time barred.

Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 484 (App.

Div. 1990).

The record before us demonstrates that when plaintiff learned

the identity of the owner of the building, she failed to seek

leave to amend her complaint before the statute of limitations

expired. Given that the complaint in this matter was over two

years old at the time plaintiff sought to add EO, and the

plaintiff's accident was over four years old, the prejudice to EO

was apparent. Thus, the denial of plaintiff's motion to amend was

not an abuse of discretion.

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Affirmed.

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