PETER MARKOU VS. CALIBER HOME LOANS, INC. (L-2360-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2360-18T2

PETER MARKOU,

Plaintiff-Appellant,

v.

CALIBER HOME LOANS, INC.,
SAFEGUARD PROPERTIES
MANAGEMENT, LLC,1 and
AMERICAN REALTY SERVICES
GROUP,

Defendants-Respondents.
______________________________

Submitted February 26, 2020 – Decided April 1, 2020

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3504-17.

Miller, Meyerson & Corbo, attorneys for appellant
(Alexander O. Bentsen, on the briefs).

1
Improperly pled in plaintiff’s complaint as Safeguard Properties, LLC.
 Lane M. Ferdinand, PC, attorneys for respondent
Caliber Home Loans, Inc. (Lane M. Ferdinand and
Gregory S. James, on the brief).

Rawle & Henderson LLP, attorneys for respondent
Safeguard Properties Management, LLC (Diane B.
Carvell, on the brief).

Law Offices of Stephen C. Cahir, attorneys for
respondent American Realty Services Group (Lisa
Marie R. DeRogatis, of counsel and on the brief;
Samuel Patrick Reisen, on the brief).

PER CURIAM

In this personal injury action stemming from a slip and fall, plaintiff Peter

Markou appeals from the Law Division's November 30, 2018 order dismissing

his complaint against defendant American Realty Services Group, Inc.

(American Realty) with prejudice; 2 the August 6 and December 21, 2018 orders

granting summary judgment to defendants Caliber Home Loans, Inc. (Caliber)

2
An earlier order entered on March 2, 2018, dismissed the complaint against
American Realty without prejudice for failure to state a claim pursuant to Rule
4:6-2(e). However, because matters outside the pleading were considered, the
motion was "treated as one for summary judgment and disposed of as provided
by [Rule 4:46-2]." R. 4:6-2.

A-2360-18T2
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and Safeguard Properties Management, LLC (Safeguard), respectively; and the

January 25, 2019 order denying his motion for reconsideration. 3 We affirm.

The motion record reveals that between 7:00 p.m. and 8:00 p.m. on

Sunday, January 8, 2017, while walking his dogs on the sidewalk close to his

home on East 45th Street in Bayonne, plaintiff slipped and fell on snow-covered

ice, injuring his face, elbow, and shoulder. Although there had been a

snowstorm two days earlier, and "the streets were covered with snow on both

sides," plaintiff observed that all the sidewalks were cleared of snow, except for

the sidewalk abutting the property where he fell (the property).

After the fall, as plaintiff collected himself and his dogs, he noticed a "For

Sale" sign on the property. Plaintiff called the phone number listed on the sign

and informed Patrick Fox, the real estate broker for American Realty, that he

had fallen outside of the property. Plaintiff also reported the incident to

Bayonne's City Hall. On Monday, January 9, 2017, plaintiff saw his primary

3
Although plaintiff lists the January 25, 2019 order in his notice of appeal,
nowhere in his merits brief does he present any legal argument or citation of law
on why the trial court erred in denying his motion for reconsideration. As a
consequence, plaintiff has effectively waived this argument on appeal. See N.J.
Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App.
Div. 2015); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2
(App. Div. 2005) (citing In re Certification of Need of Bloomingdale
Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989)).
A-2360-18T2
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care physician, who recommended that plaintiff see an orthopedic doctor for his

shoulder. Initially, the orthopedist recommended physical therapy. However,

when plaintiff continued to have pain, after reviewing an MRI, the orthopedist

recommended shoulder surgery, which plaintiff delayed scheduling because of

monetary constraints.

The property, a vacant single-family home, was foreclosed upon by Wells

Fargo Bank, NA, on August 19, 2015. By way of sheriff's sale, Caliber, an

Oklahoma based corporation and subsidiary of U.S. Bank National Trust

Association, bought the property on June 20, 2016. On September 11, 2016,

Caliber contracted with American Realty to list the property for sale. On

September 23, 2016, Caliber retained Safeguard, a property management

company, to perform property preservation services at the property.

Under the service agreement, Safeguard could not perform any work at

the property unless it was specifically ordered by Caliber or American Realty.

Caliber, American Realty, and Safeguard communicated about the property

through a software platform called Equator. On January 9, the day after plaintiff

fell, American Realty sent a message to Caliber and Safeguard on Equator,

stating, "Just received a call from [plaintiff] . . . who says he slipped on ice

which was not cleaned up over weekend. He is asking who is responsible."

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 The following day, January 10, Safeguard replied,

The broker has made no request for snow removal order
to be generated. Order # 186764126 has been generated
TODAY for snow removal. This is a recurring service.
Snow removal will be completed when accumulations
meet or exceed [three] inches or per local
code/ordinance. Salt or melting agent will also be
placed on the driveway, walkways and sidewalk in front
of [the property] once the snow is removed.

On January 11, Safeguard confirmed that the property was added to the snow

removal list.

On August 21, 2017, plaintiff filed a negligence complaint against

Caliber, Safeguard, and American Realty, alleging that they breached their duty

to safely maintain the property and the abutting sidewalk by allowing hazardous

conditions to exist, and by failing to eliminate the conditions or warn against the

dangers. Caliber and Safeguard filed contesting answers, including cross-claims

for contribution and indemnification. In lieu of an answer, American Realty

moved for dismissal pursuant to Rule 4:6-2(e). In support, Fox certified that

American Realty "had no notice or knowledge of any dangerous or hazardous

condition on the . . . property," and "did not perform any snow and/or ice

removal services" at the property "prior to or at the time of the alleged incident."

According to Fox, Safeguard was "responsible for property preservation"

services, "which included snow [and ice] removal," and he "added the property

A-2360-18T2
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to [Safeguard's] snow list on September 23, 2016 by request in [the] Equator

system."

On March 2, 2018, following oral argument, the judge granted American

Realty's motion and dismissed plaintiff's complaint. In granting the motion, the

judge considered "facts outside of the pleadings," including Fox's certification,

treated the motion as one for summary judgment, and applied "the summary

judgment standard." See R. 4:6-2; R. 4:46-2.

In an oral opinion, citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,

448-49 (1993), where the Court held that a real estate "broker is not responsible

for latent defects that are hidden and of which the broker has no actual

knowledge," the judge determined that because American Realty had no notice

or knowledge of any dangerous or hazardous condition on the property, there

was no basis to impose liability. However, the judge dismissed the complaint

against American Realty without prejudice because "discovery [was] still in its

infancy" and could uncover additional "evidence" showing that American Realty

had "a duty." Subsequently, on November 30, 2018, the judge entered an order

dismissing the complaint as to American Realty with prejudice, after having

denied plaintiff's motion to reinstate the complaint on July 2, 2018.

A-2360-18T2
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 Thereafter, Caliber moved for summary judgment, arguing that it was "not

a commercial landowner," subject to the imposition of "sidewalk liability," but

"a mortgagee in possession of [a] vacant residential property." Plaintiff

countered that because "[t]he house was foreclosed" and Caliber actually owned

the property "for business purpose[s]," and "to generate income," Caliber's

"involvement with [the] property [was] commercial in nature" and "trigger[ed]

sidewalk liability."

On August 6, 2018, following oral argument, the judge granted Caliber's

motion. In an oral opinion, the judge noted there was "no dispute of material

fact[s]," and the issue turned on whether the property was "commercial or

residential." In that regard, the judge concluded that Briglia v. Mondrian

Mortgage Corporation, 304 N.J. Super. 77 (App. Div. 1997) was controlling. In

Briglia, we held that "a mortgagee in possession of vacant residential property

is not a commercial landowner for purposes of imposing sidewalk liability." Id.

at 79. The judge determined the fact that Caliber actually owned the property

did not dictate a different outcome because, as the Briglia court noted, "[t]he

vacant house does not generate income." Id. at 81. Thus, the judge concluded

the property was "purely . . . a residential property," obviating Caliber's

obligation to remove snow and ice from the sidewalk.

A-2360-18T2
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 Thereafter, Safeguard moved for summary judgment. On December 20,

2018, following oral argument, a different judge rejected plaintiff's attempts to

distinguish Briglia, and granted Safeguard's motion. In an oral opinion, the

judge stated that "because no [business] activity" took place at the property and

there were "no employees present to monitor the necessity for snow and ice

removal," the property "remain[ed] residential" in nature. Further, "[e]ven

access to a property that [is] listed for sale is not enough to make it commercial

property because access is not any different than if a private residence was

offered for sale."

Additionally, the judge concluded "the fact that there was a potential

contract . . . with Safeguard" did not "impose[] any greater duty contractu[]ally

on Safeguard to remove the snow than that . . . which was the duty of the . . .

residential property owner under the Briglia standard." Thus, the existence of

any contract did not convert the property owner's duty to a third party to that of

a commercial property owner. The judge also rejected plaintiff's argument that

the contract for "Safeguard [to] complete . . . ongoing maintenance" "create[d]

a duty to a third-party." The judge entered a memorializing order on December

21, 2018.

A-2360-18T2
8
 Plaintiff moved for reconsideration pursuant to Rule 4:49-2. In support,

plaintiff's counsel certified that there were "two critical evidential facts" the

court failed to address in granting summary judgment to Safeguard, na mely,

"[t]he actual contract, which required [Safeguard] to remove the snow from the

sidewalk in front of the property," and "the photographs produced by

[Safeguard], which indicate[d] that their work crew was present at the property

and working in the snow, on January 6, 2017, just [two] days before [plaintiff]

was injured."

Counsel explained that while Safeguard's work crew was at the property

"to drain and remove the swimming pool in the property's back yard," under the

contract, Safeguard was also "obligated to perform monthly maintenance, which

include[d] '[s]now [r]emoval,'" "to be performed on a '[b]roker [r]equest

[b]asis.'" Counsel asserted that Safeguard's "work crew was negligent" for "not

enter[ing] a request to remove the snow," despite observing it on the property

two days before plaintiff fell. Thus, as "a third party who clearly was supposed

to be protected by the snow removal requirements of th[e] contract," plaintiff's

injury was "proximate[ly] cause[d]" by Safeguard's "neglect of this contract

obligation."

A-2360-18T2
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 On January 25, 2019, following oral argument, the judge denied the

motion. In an oral opinion, the judge confirmed that the contract was in

plaintiff's "possession through discovery well before the last motion was filed,"

and thus "could have been" but was not previously "presented" to the court. See

Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 463 (App. Div.

2002) ("[P]laintiff is not entitled to reconsideration on the basis of evidence it

had available and overlooked in its initial argument" (citing Morey v. Wildwood

Crest, 18 N.J. Tax 335, 339 (App. Div. 1999))). The judge also stated that

"[e]ven if it had been brought to [his] attention . . . , it would not have changed

[his] ruling" because the contract did not create an obligation on Safeguard to

clear the sidewalk of snow "as soon as it snowed, without being notified." The

judge entered a memorializing order and this appeal followed.

On appeal, plaintiff argues the judges erred in dismissing his complaint as

to all defendants "pursuant to the legal standard for [s]ummary [j]udgment." We

disagree.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together

A-2360-18T2
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 with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.

[Ibid. (quoting R. 4:46-2(c)); see 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 "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 review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

The question then is whether the evidence, when
viewed in a light most favorable to the non-moving
party, raises genuinely disputed issues of fact sufficient
to warrant resolution by the trier of fact or whether the
evidence is so one-sided that one party must prevail as
a matter of law.

[Troupe v. Burlington Coat Factory Warehouse Corp.,
443 N.J. Super. 596, 601 (App. Div. 2016) (citing Brill,
142 N.J. at 540).]

"The practical effect of [Rule 4:46-2(c)] is that neither the motion court

nor an appellate court can ignore the elements of the cause of action or the

evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J.

A-2360-18T2
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22, 38 (2014). In that regard, pertinent to this appeal, in order to establish a

prima facie case of negligence, a plaintiff must establish: (1) a duty of care; (2)

breach of that duty; (3) proximate cause; and (4) damages. Filipowicz v. Diletto,

350 N.J. Super. 552, 558 (App. Div. 2002).

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), our Supreme

Court imposed a duty of care on "commercial landowners" to "maintain[] in

reasonably good condition the sidewalks abutting their property" or risk liability

"to pedestrians injured as a result of their negligent failure to do so." Reasoning

"that residential property owners differ from commercial property owners who

have the ability to spread the cost of loss that an innocent third party may suffer ,"

the "Court confined this duty solely to owners of commercial property and

deliberately did not extend sidewalk liability to residential property owners. "

Grijalba v. Floro, 431 N.J. Super. 57, 61-62 (App. Div. 2013) (citing Stewart,

87 N.J. at 159 n.6). In Mirza v. Filmore Corp., 92 N.J. 390 (1983), the Court

extended the duty to maintain public sidewalks abutting commercial properties

to include "the duty to remove snow and ice" if "after actual or constructive

notice," the abutting commercial owner "has not acted in a reasonably prudent

manner under the circumstances to remove or reduce the hazard." Id. at 395.

A-2360-18T2
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 "As a result, before determining whether a duty to maintain a sidewalk

exists, one must first discern whether the property in question is 'commercial' or

'residential.'" Grijalba, 431 N.J. Super. at 62. In Abraham v. Gupta, "[p]laintiff

slipped and fell on snow which accumulated on a sidewalk abutting defendant's

vacant lot . . . ." 281 N.J. Super. 81, 82 (App. Div. 1995). "The lot [was] zoned

for commercial use, but [was] not adjacent to or used in conjunction with any

enterprise or business owned or controlled by defendant." Ibid. Plaintiff sued,

claiming "defendant was negligent in failing to properly maintain the sidewalk

by not removing the ice and snow." Ibid.

In affirming the summary judgment dismissal of his personal injury

action, we noted "Stewart did not define 'commercial property owners.'"

Abraham, 281 N.J. Super. at 83 (quoting Stewart, 87 N.J. at 150). We explained

What we glean from Stewart and its progeny is an
unexpressed, but nevertheless intended limitation to its
rule: liability is imposed upon the owner of a profit, or
not-for-profit enterprise, regardless of whether the
enterprise is in fact profitable. It is the capacity to
generate income which is the key. In part, liability is
imposed because of the benefits the entrepreneur
derives from providing a safe and convenient access for
its patrons. Secondly, such an enterprise has the
capacity to spread the risk of loss arising from injuries
on abutting sidewalks, either through the purchase of
commercial liability policies or "through higher
charges for the commercial enterprise's goods and
services."

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 [Id. at 85 (quoting Mirza, 92 N.J. at 397).]

We then held:

These policy considerations simply do not apply to
defendant's vacant commercial lot. The lot is not
owned by or used as part of a contiguous commercial
enterprise or business. There is no daily business
activity on the lot to which a safe and convenient access
is essential. The lot has no means of generating income
to purchase liability insurance or to spread the risk of
loss by the increase in cost of goods sold or services
rendered. Simply because it is designated
"commercial" by the City's zoning ordinance is an
insufficient basis to impose the Stewart liability rule
upon its owner.

[Id. at 85-86.]

Similarly, in Briglia, plaintiff "Timothy Briglia slipped and fell on ice

hidden under fresh snow which had accumulated on the public sidewalk

abutting" the neighboring property, a single-family home, which, at the time,

had been "abandoned" by its prior owner, defendant Daniel Spencer, and was in

the "possession" of the "first mortgagee," defendant Mondrian Mortgage

Corporation. 304 N.J. Super. at 79-80. Although Mondrian ultimately obtained

a final judgment of foreclosure against Spencer, when the plaintiff fell, "the

house was vacant and uninhabitable." Id. at 80.

A-2360-18T2
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 In affirming the summary judgment dismissal of plaintiff's personal injury

complaint against both defendants, we rejected "plaintiff's contention that

Mondrian was a commercial landowner in the context of sidewalk liability by

virtue of its status as a mortgagee in possession." Ibid. We explained:

The vacant house does not generate income. Mondrian
does not derive a benefit from the sidewalk abutting a
vacant house. Even if the house was listed for sale,
access to it for that purpose is simply not sufficient. It
does not make it a commercial property because access
is not any different than if a private residence was
offered for sale. Mondrian is not conducting "a daily
business" at [the property] to which "a safe and
convenient access is essential." More importantly,
because no activity takes place there, Mondrian does
not have any employees present to monitor the
necessity for snow and ice removal. Moreover,
Mondrian was not the owner of this property at the time
of plaintiff's fall. Spencer was the record owner . . . .
Mondrian, as the mortgagee in possession, has limited
rights to the property. . . . We find no binding authority
to impose sidewalk liability under the circumstances
presented here.

[Id. at 81-82 (quoting Abraham, 281 N.J. Super. at 85).]

Plaintiff argues "[t]he facts of this case are not equivalent to the facts in

[Briglia]." On the contrary, as in Briglia, the vacant house did not generate

income at the time of the incident, Caliber conducted no daily business activity

there and had no employees present to monitor the necessity for snow and ice

removal, and none of the defendants derived a benefit from the sidewalk abutting

A-2360-18T2
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the property. Further, the fact that the house was listed for sale and required

access "for that purpose [was] simply not sufficient" because "access [was] not

any different than if a private residence was offered for sale." Id. at 81. Thus,

we agree with both judges that Briglia governs, and, under Briglia, the property

cannot be considered commercial property to impose the Stewart liability rule.

We also agree the fact that Caliber was the owner of the property at the time of

the incident does not dictate a contrary outcome.

Plaintiff also argues that the property does not qualify for a residential

"exception from the snow removal requirement" under the factors delineated in

Grijalba, 431 N.J. Super. at 73. However, because this case does not implicate

the issues involved in "mixed-use property, such as an owner-occupied two- or

three-family home," we need not apply the Grijalba factors to resolve "the

residential-commercial distinction." 4 Id. at 65.

4
In Grijalba, when classifying mixed-use, owner-occupied property as either
commercial or residential, we directed trial courts to consider:

(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

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 Finally, plaintiff argues "[t]he existence of a services contract and listing

agreement that oblige the [d]efendants to remove snow from the sidewalks in

front of the property creates liability to the third-party beneficiary of the

contract, [plaintiff]." We disagree.

"The principle that determines the existence of a third[-]party beneficiary

status focuses on whether the parties to the contract intended others to benefit

from the existence of the contract, or whether the benefit so derived arises

merely as an unintended incident of the agreement." Broadway Maint. Corp. v.

Rutgers, State Univ., 90 N.J. 253, 259 (1982) (citing Brooklawn v. Brooklawn

Housing Corp., 124 N.J.L. 73, 76-77 (E. & A. 1940)). "The contractual intent

to recognize a right to performance in the third person is the key. If that intent

does not exist, then the third person is only an incidental beneficiary, having no

contractual standing." Ibid.

In Abel Holding Co. v. Am. Dist. Tel. Co., 147 N.J. Super. 263, 272 (App.

Div. 1977), we noted that "the proper measure" of "the duty owed to third

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
....

[Ibid.]
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persons for the negligent performance of an undertaking having its genesis in

contract" was expressed in Restatement (Second) of Torts § 324A (Am. Law

Inst. 1965), which provides:

One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of a third person . . . , is
subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
protect his undertaking, if (a) his failure to exercise
reasonable care increases the risk of such harm, or (b)
he has undertaken to perform a duty owed by the other
to the third person, or (c) the harm is suffered because
of reliance of the other or the third person upon the
undertaking.

Whether plaintiff's argument is premised on an alleged breach of the

contract between Caliber and Safeguard, or the alleged tortious conduct of

Safeguard in failing to remove snow and ice in accordance with the contract, it

is insufficient to defeat the motion for summary judgment. As to the former,

plaintiff was, at best, an incidental beneficiary of the contract, "having no

contractual standing." Broadway Maint. Corp., 90 N.J. at 259 (citing

Brooklawn, 124 N.J.L. at 76-77). As to the latter, because it is undisputed that

Safeguard was only obligated to perform snow and ice removal services upon

request, and there was no request made until after plaintiff's fall, there was no

undertaking by Safeguard to which liability could attach.

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 To the extent we have not addressed a particular argument, it is because

either our disposition makes it unnecessary or the argument was without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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