NOT FOR PUBLICATION WITHOUT THE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-5499-15T1
VIVIAN ACOSTA QUINTINAL,
Plaintiff-Appellant,
v.
LIEBENZELL MISSION OF USA,
Defendant/Third-Party
Plaintiff-Respondent,
v.
CHURCH OF GOD OF BROOKLYN,
Third-Party Defendant.
_______________________________
Submitted October 23, 2017 - Decided November 9, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
3978-14.
The Anthony Pope Law Firm, PC, attorneys for
appellant (Annette Verdesco, on the brief).
Harwood Lloyd, LLC, attorneys for respondent
(Gregory J. Irwin, of counsel and on the
brief).
PER CURIAM
Plaintiff Vivian Acosta Quintinal appeals from a final
order denying reconsideration of summary judgment dismissing her
personal injury complaint against defendant Liebenzell Mission
of USA. Because we agree defendant is immune from liability for
plaintiff's accident pursuant to N.J.S.A. 2A:53A-7, we affirm,
essentially for the reasons expressed by Judge D'Alessandro in
the statements of reasons accompanying his June 9, 2016 order
for summary judgment and July 27, 2016 order for
reconsideration.
The facts essential to resolution of the motion are
undisputed. Defendant Liebenzell Mission is a 501(c)3 tax
exempt, not-for-profit corporation, organized "to promote,
support and advance the cause of Christ and the Christian way of
life." It operates a 150-acre retreat in Morris County, which
it makes available to churches and other non-profit groups for a
fee. Plaintiff was attending a three-day conference at the
retreat center sponsored by Church of God of Brooklyn,1 and the
pastors of Nueva Arca, a church she attended. She traveled to
the retreat center in a van provided by the pastors of Nueva
1
Church of God of Brooklyn obtained summary judgment in the same
order as Liebenzell. Plaintiff has not appealed from that
aspect of the order and Church of God of Brooklyn is not a
participant in this appeal. Accordingly, "defendant" refers
only to Liebenzell.
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Arca. Plaintiff paid $120 to attend the retreat, $6 of which
was allocated for costs of insurance. While leaving a
"religious conference" at the center on Saturday, plaintiff
slipped on snow and ice on a ramp leading out of the building,
sustaining injury.
Following discovery, Liebenzell moved for summary judgment
contending it is a charitable association engaged in the works
it was organized to advance, when plaintiff, a beneficiary of
those works, was injured, thus entitling it to immunity pursuant
to the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -13.1.
Plaintiff opposed the motion claiming defendant deviated from
its stated purpose by charging her a $6 fee for insurance, that
there was a "dispute as to what type and amounts of income that
Defendant receives in order to operate," and that plaintiff was
not a beneficiary because "Defendant was not promoting [its]
objectives as a religious retreat at the time of the injury."
Judge D'Alessandro rejected those arguments in a
comprehensive thirty-one page opinion. The judge concluded from
the evidence in the record that Liebenzell was organized
exclusively for religious and charitable purposes as defined in
the Charitable Immunity Act because those purposes represented
its "dominant motive." See Parker v. St. Stephen's Urban Dev.
Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990)
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(explaining examination of the aims, origins and method of
operation of an "entity seeking to clothe itself in the veil of
charitable immunity" is necessary "to determine whether its
dominant motive is charity or some other form of enterprise").
Noting "[a] qualifying organization does not lose its
statutory immunity merely because it charges money for its
services," Rupp v. Brookdale Baptist Church, 242 N.J. Super.
457, 465 (App. Div. 1990), the judge found nothing in the record
to contradict Liebenzell's assertion it charged the $6 fee "'to
encourage the churches to have their own insurance and to offset
the costs'" of Liebenzell's insurance. The judge rejected
plaintiff's claim that she had raised sufficient questions as to
the source of Liebenzell's operating funds to defeat summary
judgment, finding plaintiff failed to evince any evidence "that
Liebenzell was a profit-making organization with any aim other
than a 'dominant motive' of charity by providing a place for
low-cost religious and personal reflection." See Pomeroy v.
Little League Baseball, 142 N.J. Super. 471, 473 (App. Div.
1976) (finding no genuine issue of material fact as to whether
the defendant had been organized for exclusively educational
purposes).
Analyzing the question of whether plaintiff was a
beneficiary of the works of Liebenzell within the intendment of
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N.J.S.A. 2A:53A-7, the court applied the two-part test
enunciated in DeVries v. Habitat for Humanity, 290 N.J. Super.
479, 487-88 (App. Div. 1996), aff’d, 147 N.J. 619 (1997): "(1)
did the injury occur while the organization was engaged in its
charitable works, and (2) was the injured party a direct
recipient of those works." Concluding there could be no genuine
dispute that plaintiff accepted the invitation of her church "to
attend the retreat, to use [Liebenzell's] facilities and to
attend services or conferences during the retreat," Judge
D'Alessandro found plaintiff was clearly a beneficiary of
Liebenzell's charitable works.
Plaintiff moved for reconsideration, contending Liebenzell
did not establish it was a charitable organization because by
charging plaintiff the $6 fee to offset insurance costs,
Liebenzell "deviated from [its] stated purpose and has received
a profit, non-related to its charitable works," and that
plaintiff had raised a genuine issue of material fact regarding
the types and amount of income Liebenzell received in order to
operate, "especially from the recreational activities provided
on its premises." Plaintiff also claimed Liebenzell could not
demonstrate she was a beneficiary of its works at the time of
the accident because Liebenzell "was not promoting [its]
objectives at the time . . . and she paid extra-monies for
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liability insurance, . . . which clearly is not related to
retreat or religious objectives."
The judge heard argument on the motion, providing plaintiff
the opportunity to further argue the points raised in her brief
on reconsideration. The judge thereafter issued a nineteen-page
opinion addressing each point. The judge acknowledged
plaintiff's arguments, but found she had failed to come forward
with evidence in the record to support her claims.
Plaintiff appeals, reprising the arguments she made on the
motions. We, of course, review summary judgment using the same
standard that governs the trial court. Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Surplus
Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46
(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 536 (1995)). Applying that standard here after having
considered plaintiff's arguments and having reviewed the entire
record, we agree with the trial judge that plaintiff failed to
set forth any evidence that could have sustained a different
decision. Accordingly, we affirm for the reasons set forth in
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Judge D'Alessandro's two thorough and thoughtful written
opinions.
Affirmed.
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