JUDY SMITH v. CITY OF NEWARK CITY OF NEWARK HOUSING AUTHORITY (2011)

Plaintiff Judy Smith appeals from orders dated October 1, 2010, dismissing her personal injury claim against defendants City of Newark (City) and City of Newark Housing Authority (Authority).   Because we conclude that the case was not ripe for summary judgment, we vacate the orders on appeal and remand this matter to the trial court.

I

On August 26, 2008, plaintiff's counsel mailed a notice of tort claim to the City of Newark Law Department, contending that on May 29, 2008, plaintiff fell on an uneven sidewalk at the corner of Broom and Mercer Streets.   See N.J.S.A. 59:8–8 (requiring a plaintiff to file a notice of tort claim as a prerequisite for tort litigation against a public entity).   An attorney for the City responded by letter of August 28, 2008 advising, among other things, that due to “the volume of claims received by the City” and its limited resources, the City could not follow up on deficient claims and “compliance with the Tort Claims Act is your obligation.”

Without filing a separate tort claim notice against the City of Newark Housing Authority, plaintiff filed a complaint on May 28, 2010, against both the City and the Authority.   On August 17, 2010, the City filed a summary judgment motion in lieu of filing an answer, contending that the City did not own the sidewalk where plaintiff fell.   The motion was supported by a certification from the City's Tax Assessor attesting that the sidewalk in question was part of the Oscar Miles Village apartment complex, which was owned by the Authority.   Her certification authenticated copies of the City tax map and tax records.

The Authority also filed a summary judgment motion, based on plaintiff's failure to file a tort claim notice with the Authority.   Plaintiff filed opposition, asserting that the Authority and the City should not be considered separate entities for purposes of the Tort Claims Act (TCA), N.J.S.A. 59:1–1 to 12–3.   Alternatively, she argued that service of a notice on the City should be deemed substantial compliance with her obligation to make service on the Authority.   She contended that she should be entitled to discovery on the relationship between the City and the Authority.   She also sought discovery as to which entity repaired the sidewalk, because that might be relevant as to which entity controlled the sidewalk.   Her counsel pointed out that he had served interrogatories but neither defendant had answered them and, therefore, the case was not ripe for summary judgment.

In an oral opinion issued October 1, 2010, the motion judge granted summary judgment to both defendants, without addressing plaintiff's argument concerning the need for discovery.   Taking judicial notice of the City's tax records, she concluded that the City did not own the sidewalk where plaintiff fell.   Citing English v. Newark Housing Authority, 138 N.J.Super.   425 (App.Div.1976), she concluded that the Authority was a separate entity from the City and that a separate notice of tort claim was required.   She also considered that plaintiff's counsel could have investigated and “discern[ed] the public nature of the Newark Housing Authority.”

Relying on Leidy v. Ocean County, 398 N.J.Super.   449 (App.Div.2008), the judge reasoned that the City had no duty to “ascertain where a tort claim should be filed or to pass along a notice of tort claim, or to notify any other party to the action that perhaps they should serve another entity.”   She rejected plaintiff's claim of substantial compliance, because the City and Authority had not concealed the identity of the property owner.   See Feinberg v. State Dep't of Envtl.   Prot., 137 N.J. 126 (1994).

The judge found that the Authority's non-profit status did not provide a basis to impose responsibility on the City for the upkeep of the sidewalk adjacent to the Authority's property.   She dismissed the claim against the Authority because plaintiff did not serve the Authority with a tort claim notice.

II

Our review of the trial court's summary judgment decision is de novo.   Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998).   Using the Brill ¹ standard, we determine whether, giving the non-moving party the benefit of all favorable inferences, the undisputed material facts entitle the moving party to judgment.   See Estate of Hanges v. Metro.   Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

However, a case is generally not ripe for consideration of summary judgment motions until the parties have had the opportunity to complete discovery on the issues relevant to the motions.  James v. Bessemer Processing Co., 155 N.J. 279, 311 (1998).  “When ‘critical facts are peculiarly within the moving party's knowledge,’ it is especially inappropriate to grant summary judgment when discovery is incomplete.”  Velantzas v. Colgate–Palmolive Co., 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J.Super. 317, 326 (Ch. Div.1981)).

A.

On this appeal, plaintiff first contends that the City should not have been dismissed from the case because, even if the property adjoining the sidewalk belonged to the Authority, the City was still responsible for the upkeep of the sidewalk.   In support of that argument plaintiff asks us to hold that the Authority is not subject to sidewalk liability because it is a non-profit provider of housing.   Citing Norris v. Borough of Leonia, 160 N.J. 427 (1999), plaintiff further argues that if the Authority is not subject to liability, the municipality must be.   Plaintiff overreads Norris, because, as discussed below, that case requires that a municipality own or control a sidewalk before liability will attach.  Id. at 443.

Moreover, none of the cases plaintiff cites in her brief holds that a municipal housing authority is not subject to sidewalk liability.  Luchejko v. City of Hoboken, 414 N.J.Super.   302 (App.Div.), certif. granted, 205 N.J. 98 (2010), is not on point.   There, we held that because individual residential owners are not liable in tort for failure to maintain the sidewalks adjacent to their houses, the same rule should apply to a non-profit condominium association composed exclusively of residential owners.  Id. at 313–15.   Since the use of the Authority's property—renting apartments to tenants—is commercial in nature, we find no basis in current law to accept plaintiff's argument that a housing authority is exempt from sidewalk liability.   See Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993) (as a “municipal” landlord, a housing authority can be liable for failure to remove snow from its driveway);  Brown v. St. Venantius School, 111 N.J. 325, 332–33 (1988);  Restivo v. Church of St. Joseph of the Palisades, 306 N.J.Super. 456, 468–69 (App.Div.1997), certif. denied, 153 N.J. 402 (1998).

B.

We do, however, find merit in plaintiff's argument concerning the lack of discovery as to other issues.   Plaintiff contends that the case was not ripe for summary judgment because she had no opportunity to take discovery on the issue of whether the City exercised control over the sidewalk.   In that connection, she argues to us, as she did to the trial court, that someone repaired the sidewalk after her fall, and such remedial conduct is relevant to determine which party controlled the sidewalk.   Plaintiff also contends she was entitled to take discovery on the interrelationship between the Authority and the City.

In Norris, supra, the Court held that, subject to the limitations of the Tort Claims Act, a municipality could be liable for a dangerous condition of a public sidewalk that it owned or controlled:

Our decision that the common law sidewalk immunity does not apply to municipalities is based on the allegations in this case, and the assumptions by the courts below, that the municipality had sufficient control over or responsibility for the maintenance and repair of the sidewalk and/or the curb to serve as a basis for liability.   That finding is crucial to any imposition of municipal liability because, in order to qualify as “public property,” a sidewalk and/or a curb must be owned or controlled by the public entity.

[Norris, supra, 160 N.J. at 443 (emphasis added).]

That is consistent with the language of the TCA, which defines “public property” as property “owned or controlled by the public entity.”  N.J.S.A. 59:4–1(c).  Further, as plaintiff argues, making repairs can be evidence of control.   See Brown v. Brown, 86 N.J. 565, 581 (1981).   We agree with plaintiff that she was entitled to take discovery on the issue of whether the City controlled the sidewalk.   Whether the City repaired the sidewalk was relevant to that inquiry.  Ibid.

Plaintiff also contends that the Authority is not a separate entity from the City, that the Authority is an agent or instrumentality of the City, and that service on the City should be deemed service on the Authority.   She cites case law that, for civil service purposes, a local housing authority is considered “an agency of the municipality creating it and is not considered autonomous.”   Dep't of Civil Serv. v. City of Newark, 131 N.J.Super. 275, 278 (App.Div.1974).   The City agrees that a housing authority is generally recognized “to be an agent and instrumentality of the entity that created it,” but also argues that for purposes of the Tort Claims Act, a housing authority is a public entity, with separate statutory authority to sue and be sued.   Ramapo Brae Condo.   Ass'n, Inc. v. Bergen Cty. Hous. Auth., 328 N.J.Super. 561, 569 (App.Div.2000) (recognizing a housing authority as a public entity for purposes of the TCA), aff'd o.b., 167 N.J. 155 (2001).

With respect to the Authority, English, supra, 138 N.J.Super. 430–31, recognized the Authority as a public entity for purposes of the TCA. That case further stated:  “[i]t is also clear that the housing authority is not a subordinate branch of the governing body.   It is a unique separate entity, possessing and enjoying many governmental powers and privileges.”  Id. at 430.   However, English did not address whether a plaintiff needed to serve separate tort claim notices on the City and the Authority, because the City was not a defendant in that case.   The issue in English was whether tenants who sued the Authority needed to first file a notice of tort claim.   Further, English was decided in 1976, and the record in this case does not reflect whether the relationship between the City and the Authority may have changed since then.

We conclude it is premature to decide whether plaintiff can pursue her suit against the City, or against the Authority, because plaintiff had no opportunity to take discovery in this case on factual issues relating to the tort claim notice issues, including the current interrelationship between the two entities and the City's possible control of the sidewalk.   The current relationship between the City and the Authority, including whether they have any agreements concerning repair and maintenance of the sidewalks adjacent to the Authority's property, involves facts uniquely within defendants' knowledge.   See Velantzas, supra, 109 N.J. 193.   Plaintiff has the right to make a record on the relevant issues by taking discovery, before being required to respond to summary judgment motions.²

Accordingly, we vacate the orders granting summary judgment and remand to permit the completion of discovery relevant to the tort claim notice issues.

Vacated and remanded.

FOOTNOTES

FN1. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)..  FN1. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

FN2. Of course, even if plaintiff is permitted to proceed with her case against either or both entities, she must overcome the considerable hurdle of satisfying the statutory prerequisites to proving liability under the TCA. See N.J.S.A. 59:4–2.   But it is premature to consider those issues..  FN2. Of course, even if plaintiff is permitted to proceed with her case against either or both entities, she must overcome the considerable hurdle of satisfying the statutory prerequisites to proving liability under the TCA. See N.J.S.A. 59:4–2.   But it is premature to consider those issues.

PER CURIAM