GERARD RIENZI VS. VINCENT G. GIACOMAN (L-4244-17, 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NOT FOR PUBLICATION WITHOUT THE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-5056-18T3

GERARD RIENZI,

Plaintiff-Appellant,

v.

VINCENT G. GIACOMAN,

Defendant-Respondent,

and

CITY OF UNION CITY,
COUNTY OF HUDSON, and
STATE OF NEW JERSEY,

Defendants.
__________________________

Argued October 7, 2020 – Decided October 26, 2020

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4244-17.

Amy E. Lefkowitz argued the cause for appellant (Law
Offices of Curt J. Geisler, LLC, attorneys; Curt J.
Geisler, on the brief).
 Douglas M. Barnett argued the cause for respondent
(Gregory P. Helfrich & Associates, attorneys; Douglas
M. Barnett, on the brief).

PER CURIAM

Plaintiff Gerard Rienzi appeals from a June 21, 2019 grant of summary

judgment to defendant Vincent G. Giacoman. We affirm, substantially for the

reasons set forth in Judge Joseph V. Isabella's well-reasoned opinion.

On November 19, 2015, while plaintiff was in Union City conducting an

inspection of Giacoman's apartment building on behalf of his employer,

defendant State of New Jersey, he fell on the sidewalk and sustained injuries.

Plaintiff filed suit against Giacoman, as well as defendants City of Union City

and County of Hudson. He alleged he suffered injuries due to a hole in the

sidewalk adjacent to Giacoman's building. After his accident, the City of Union

City repaired the sidewalk and the hole.

On appeal, plaintiff contends Giacoman was not entitled to summary

judgment as a matter of law. He argues that since Giacoman's property is

commercial, he had a duty to maintain the sidewalk. Alternatively, plaintiff

argues the matter must be remanded to resolve factual issues regarding the

nature of Giacoman's ownership and use of his property. We are not persuaded.

A-5056-18T3
2
 Giacoman's three-family apartment building is located on Bergenline

Avenue in Union City (the property). The neighborhood surrounding the

property is classified as commercial and consists of storefronts and apartment

buildings, but his property is zoned residential. At the time of plaintiff's fall,

Giacoman and his brothers resided in the first-floor apartment, while the other

two apartments were rented to non-relatives. As Judge Isabella found, "no

commercial entities have rented the property. Nor have any commercial entities

ever been associated with it." Giacoman did not have anyone manage the

property on his behalf.

Giacoman continuously lived at the property after he purchased it in 2012.

According to his summary judgment certification, Giacoman's two tenants paid

monthly rent of $1320 and $1450, respectively, but his brothers did not pay rent.

Further, the record reflects Giacoman's monthly mortgage, taxes and insurance

totaled $2550.58, and he incurred additional monthly expenses for sewer ($300),

water ($80-100), pest control ($100), and gas and electric ($100). Additionally,

after he bought the property, he purchased a new boiler for $7557 and paid

$5000 for a new roof. When he was deposed prior to the summary judgment

ruling, Giacoman testified the rental income he received "barely cover[ed]" his

expenses at the property.

A-5056-18T3
3
 Our Supreme Court has confirmed that residential property owners

generally are not liable for sidewalk injuries. Luchejko v. City of Hoboken, 207

N.J. 191, 195 (2011) (citing Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 159

n.6 (1981)). Conversely, commercial property owners have a duty to maintain

sidewalks that abut their property and are liable for injuries suffered as a result

of their negligent failure to do so. See Stewart, 87 N.J. at 150. Thus, the relevant

inquiry is whether Giacoman's property is commercial or residential.

In Grijalba v. Floro, 431 N.J. Super. 57 (App. Div. 2013), we considered the

differences between residential and commercial properties and observed that

residential property is

"designed for people to live in" and "concerning or
relating to residence," Residential, Oxford Dictionaries
Online, http://oxforddictionaries.com/us (last visited
Apr. 25, 2013); and "used as a residence or by
residents," Merriam–Webster's Dictionary 1060 (11th
ed. 2012). "Residence" has been defined as "the act or
fact of dwelling in a place for some time," and "[t]he
place where one lives," Merriam–Webster's
Dictionary 1335 (11th ed. 2012); "[t]he act or fact of
living in a given place for some time," and "[t]he place
where one actually lives," Black's Law Dictionary 1335
(8th ed. 2004); and "the place in which one lives or
resides." Hambright [ v. Yglesias], 200 N.J. Super.
[392,] 395 n.1 [(App. Div. 1985)] . . .
N.J.A.C. 13:45A-16.1A defines "[r]esidential or non-
commercial property" as

A-5056-18T3
4
 a structure used, in whole or in substantial
part, as a home or place of residence by any
natural person, whether or not a single or
multi-unit structure, and that part of the lot
or site on which it is situated and which is
devoted to the residential use of the
structure, and includes all appurtenant
structures.

[Grijalba, 431 N.J. Super. at 67.]

On the other hand,

"[c]ommercial" has been defined as "concerned with or
engaged in commerce" and "making or intended to
make a profit," Commercial, Oxford Dictionaries
Online, http://oxforddictionaries.com/us (last visited
Apr. 25, 2013); and "occupied with or engaged in
commerce work intended for commerce" and "viewed
with regard to profit," Merriam–Webster's
Dictionary 249 (11th ed. 2012). "Commerce is defined
as business." Hambright, . . . 200 N.J. Super. at 395
n.1.

[Id. at 68.]

The Grijalba court implemented a four-factor test to aid trial courts in

determining whether an apartment building consisting of three units should be

considered commercial or residential, and identified them as follows:

(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

A-5056-18T3
5
 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.'" Applying
such a totality of the circumstances test, on a case-by-
case fact-sensitive basis, where the parties have
disputed the general nature of the ownership of the
property and the use to which it is put, follows the
Court's repeated approach for the last three decades of
resolving "difficult cases . . . as they arise."

[Id. at 73-74 (citations omitted).]

Here, Judge Isabella applied the Grijalba factors, stating:

[T]he [c]ourt finds the property is residential. The
[c]ourt applied the totality of the circumstances test as
identified in Grijalba . . . . As to the nature of the
ownership, when [d]efendant purchased the property, it
was his intention to live there and rent out the other two
units. Defendant's two brothers live with him in his
unit, and do not pay rent. Defendant has continued to
live at the residence since his purchase.

The predominant use of the property is used in whole
as a place of residence. The other two units are rented
to individuals, and no commercial entities have rented
the property. Nor have any commercial entities ever
been associated with the property.

The third factor questions whether the property has the
capacity to generate income, and advises the [c]ourt to
include a comparison between carrying costs with the
amount of rent charged to determine if the owner is
realizing a profit. Defendant's income related to the

A-5056-18T3
6
 property is minimal. Defendant uses the rent from the
two tenants and applies it to expenses such as the
mortgage, repairs, renovations, and other regular
expenses. Without applying the other tenant[s'] rents to
mortgages or otherwise, living in Hudson County could
be unaffordable.

Appellate courts review a trial court's grant of summary judgment de

novo, applying the same standards as the trial court. Townsend v. Pierre, 221

N.J. 36, 59 (2015) (citations omitted). Summary judgment is appropriate where

the record establishes there is "no genuine issue as to any material fact

challenged and that the moving party is entitled to judgment or order as a matter

of law." R. 4:46-2(c). To determine whether genuine issues of material fact

exist, the evidence is viewed in the light most favorable to the non-moving party.

Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018)

(citations omitted).

Considering these principles, we discern no basis to set aside the grant of

summary judgment. It was plaintiff's burden to establish the property was

commercial in nature and used for investment purposes. He simply failed to

meet that burden. Conversely, the record amply established Giacoman was

entitled to sidewalk immunity because his property was used for residential

purposes.

A-5056-18T3
7
Affirmed.

A-5056-18T3
8