CHARLES STENGER v. BULENT KOROGLU (L-8711-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0902-20

CHARLES STENGER and
DEBORAH STENGER,

Plaintiffs-Appellants,

v.

BULENT KOROGLU,

Defendant-Respondent.
___________________________

Submitted October 28, 2021 – Decided January 24, 2022

Before Judges Whipple, Geiger, and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8711-18.

Lane M. Ferdinand, PC, attorney for appellants (Lane
M. Ferdinand, on the briefs).

Murray A. Klayman, attorney for respondent.

PER CURIAM

Plaintiffs, Charles and Deborah Stenger, appeal from a November 18,

2020 Law Division order granting summary judgment in favor of their landlord,
defendant Bulen Koroglu, and dismissing their personal injury lawsuit. This

matter arises from a trip and fall that occurred on the bottom step of the stairway

to plaintiffs' leased residence. The complaint alleges that the landlord failed to

warn them of a latent defect in the stairway. Judge Gregg A. Padovano found

that under the lease, plaintiffs were exclusively responsible for the stairway's

upkeep. The judge also found, based on undisputed facts and "[g]ranting every

inference to [p]laintiff as the non-moving party[,] . . . [that] [p]laintiffs were

aware of the condition of the stairs and any associated risk of harm posed by

that condition before the accident." After carefully reviewing the record in light

of the governing legal principles and arguments of the parties, we agree. We

affirm the grant of summary judgment substantially for the reasons explained in

Judge Padovano's thorough and cogent written opinion.

We need only briefly recount the pertinent facts adduced in the course of

discovery. Plaintiffs leased the single-family residential dwelling and took

possession on September 15, 2014. They are the exclusive tenants. Charles

Stenger's fall and injury occurred on January 19, 2017, more than two years after

they took possession. Plaintiffs used the interior stairway on a daily basis,

traversing the stairs "hundreds, if not thousands of times . . . without incident."

They routinely cleaned the stairway's handrails and had even painted the risers

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of the stairs on multiple occasions during their tenancy. Defendant-landlord, in

contrast, made no alterations or repairs to the stairway during the tenancy period.

Plaintiff Charles Stenger testified that while descending the stairway, his

right foot was on the second step, but "it just didn't fit right"; his left leg "missed

the bottom step tread and jammed on the foyer," causing him to fall. Plaintiffs

produced an expert report that found that the stairway had variations in the

height and width of the stair treads. The expert opined those variations violated

the building code and constituted a "hidden defect." No evidence was presented,

however, to suggest that defendant either affirmatively or constructively

concealed the alleged dangerous condition.

Plaintiffs raise the following contention for our consideration:

THE TRIAL COURT ERRED IN DECIDING A
GENUINE ISSUE OF MATERIAL FACT AND
GRANTING SUMMARY JUDGMENT BELOW.

Because we affirm for the reasons explained in Judge Padovano's written

opinion, we need not address plaintiff's arguments at length but add the

following comments. We review orders granting summary judgment de novo

and apply the same standard at the trial court. Lee v. Brown, 232 N.J. 114, 126

(2018). Summary judgment will be granted if, viewing the evidence in the light

most favorable to the non-moving party, "there is no genuine issue of material

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fact and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); R.

4:46-2(c).

To determine whether there are genuine issues of material fact, we

consider "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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "An

issue of material fact is 'genuine only if, considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact.'" Grande v. St. Clare's Health Sys.,

230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

Factual issues of an unsubstantial nature are insufficient to preclude the granting

of summary judgment. Brill, 142 N.J. at 540. Brill further instructs that if the

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

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of law . . . the trial court should not hesitate to grant summary judgment." Ibid.

(citation omitted).

The first step in a negligence action is to determine whether the defendant

owed a duty to the plaintiff. See Carvalho v. Toll Bros. & Dev., 278 N.J. Super.

451, 457 (App. Div. 1995), aff'd, 143 N.J. 565 (1996). Determining whether or

not a duty exists is a question of law, and therefore must be decided by a judge

and not by a jury. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citation

omitted).

At common law, a landlord was not responsible for harm caused by a

dangerous condition once the lessee took possession of the property. Szeles v.

Vena, 321 N.J. Super. 601, 605 (App. Div. 1999) (citing Restatement (Second)

of Torts § 356 (Am. L. Inst. 1965)). Over time, courts have modified that

general rule so that in certain circumstances, a landlord can be liable for injuries

resulting from a dangerous condition on leased premises. Ibid. (citing

Restatement (Second) of Torts §§ 357–62). The law governing the scope of duty

in landlord-tenant negligence cases has evolved so that it may no longer be

necessary in all cases for a plaintiff to prove that the landlord actively concealed

a dangerous condition. However, the critical inquiry remains whether the lessee

was aware of the dangerous condition that caused injury.

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 Our decision in Patton v. Tex. Co. has long served as a benchmark for

determining landlord liability in negligence actions brought by tenants. 13 N.J.

Super. 42 (App. Div. 1951). In Patton, the plaintiff sued the defendant landlord

for an injury sustained during a fall while walking down the front steps. Id. at

44. The tenant had previously asked the landlord to repair the step, but the

landlord was under no contractual obligation to do so and refused. Id. at 44–45.

Then-Judge William Brennan found that "[a]s the defect was not latent, the

landlord is not liable in the circumstances of this case to the tenants' invitee for

injuries suffered on the premises by reason of the defect." Id. at 46. The court

explained the general rule:

that upon the letting of a house and lot there is no
implied warranty or condition that the premises are fit
and suitable for the use to which the lessee proposes to
devote them and the landlord is therefore under no
liability for injuries sustained by the tenant or the
tenant's invitee by reason of the ruinous condition of
the demised premises unless there has been fraudulent
concealment of a latent defect.

[Id. at 47 (citation omitted).]

In Szeles, we considered whether the rule announced in Patton remained

good law in view of a series of rent abatement cases that held that residential

leases carry an implied warranty or covenant of habitability. 321 N.J. Super. at

603. The plaintiff in that case had lived in the rented house for three years before

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injuring himself when he fell on a loose brick on an exterior staircase of the

single-family residence. Id. at 602–03. In determining the legal principles that

applied, we recognized that there had been "obvious inroads" to the Patton rule,

"particularly involving multi-family dwellings." Id. at 606. Despite those

inroads, we applied the general rule of Patton and held that the landlord was not

liable to the plaintiff, noting "[t]his was clearly not a concealed condition." Id.

at 607.

More recently, in Reyes v. Egner, the trial court granted the defendants'

summary judgment motion after finding that the plaintiffs failed to prove that

the lessors actively or fraudulently concealed the allegedly dangerous condition.

404 N.J. Super. 433, 438 (App. Div. 2009). On appeal, we questioned the

"fraudulent concealment" requirement expressed in Patton, noting that "we

hesitate to continue to impose upon plaintiffs an inflexible doctrinal requirement

of proving the lessor's 'fraudulent concealment' of a dangerous condition." Id.

at 459.

We concluded that this requirement was inapposite in the particular

circumstances of that case. Reyes involved the rental of a summer beach house

at the Jersey Shore for a two-week period straddling the Labor Day holiday. Id.

at 438–39. In contrast, in Patton the plaintiff had been living in the rented

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premises for a few years on a month-to-month lease. 13 N.J. Super. at 44. We

thus distinguished Patton, concluding that a tenant of such a short-term lease

likely has no interest in doing a thorough pre-occupation inspection. Reyes, 404

N.J. Super. at 456–457. On that basis, we concluded that the discovery record,

viewed in a light most favorable to the plaintiffs, raised genuine issues as to

whether a vacationing lessee would have reasonably noticed the dangerous

condition. Id. at 461.

We conclude Judge Padovano correctly applied these foundational legal

principles to the undisputed facts. As we have noted, the critical inquiry is

whether plaintiffs were aware of the alleged dangerous condition. Our de novo

review of the record confirms that neither party disputes that: (1) defendant had

not entered the premises at any point during plaintiffs' tenancy; (2) plaintiffs

were solely responsible for the upkeep and maintenance of the stairway; (3)

plaintiffs painted the risers in the recent past; and (4) plaintiffs had utilized the

subject stairway hundreds if not thousands of times throughout their tenancy

without incident, as it was the apartment's sole means of egress.

In these circumstances, we apply the Brill standard relating to "one-sided"

evidence, 142 N.J. at 540, and hold that the trial court properly determined that

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plaintiffs were aware of the condition of the stairs, and, therefore, correctly

granted summary judgment in favor of defendant.

To the extent we have not specifically addressed them, any remaining

arguments raised by plaintiffs lack sufficient merit to warrant discussion in this

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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