NOT FOR PUBLICATION WITHOUT THE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.
4 A-4522-15T4
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.
6 A-4522-15T4
"[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.
8 A-4522-15T4
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
9 A-4522-15T4
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.
11 A-4522-15T4
DIEDRE BRADLEY VS. DYNAMIC CAPITAL PROPERTY(L-0246-14, ESSEX COUNTY AND STATEWIDE)
Combined Opinion