Opinion
DOCKET NO. A-0920-14T1
01-15-2016
CYNTHIA ROSA and MICHAEL ROSA, her husband, Plaintiffs-Appellants, v. WILLIAM PETRINA, Defendant-Respondent, and JERRY MARTINO, Defendant.
Anthony F. Malanga, Jr., argued the cause for appellants. John R. Knodel argued the cause for respondent (Methfessel & Werbel, attorneys; Mr. Knodel of counsel and on the brief; Amanda J. Sawyer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6025-11. Anthony F. Malanga, Jr., argued the cause for appellants. John R. Knodel argued the cause for respondent (Methfessel & Werbel, attorneys; Mr. Knodel of counsel and on the brief; Amanda J. Sawyer, on the brief). PER CURIAM
Plaintiffs Cynthia and Michael Rosa appeal from February 22, 2013 Law Division orders granting summary judgment in favor of defendant William Petrina and denying their cross motion for summary judgment. As genuine issues of material fact exist in the record, we vacate the order granting Petrina's motion and remand for further proceedings.
For ease of reference, we refer to plaintiffs, individually, by their first names.
I.
We view the factual record in the light most favorable to plaintiffs as the non-moving party. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On September 6, 2009, plaintiffs attended a barbeque at Petrina's home. Cynthia was standing on the top step of the recently-constructed deck when the stairway collapsed, causing her to fall with resulting injuries to her lower back. According to plaintiffs' expert, the stairway collapsed "because [it] was not properly framed and secured to the floor joist and structure." The record clearly indicates that the collapse was caused by the negligent construction of the deck.
In 2003 or 2004, Petrina began a large-scale renovation to his home, which he described as "an extensive restoration and renovation where we added a dining room, bedroom, [and] kitchen. We added a huge deck on the back of the house and all of this work was done by a contractor[,] Jerry Martino."
Before hiring Martino, Petrina never inquired about whether Martino was insured or licensed to perform construction in New Jersey. Petrina claimed that Martino was responsible for obtaining all permits required to perform the renovation. Petrina further indicated that he did not receive a proposal from Martino, and there was no written contract; instead, Martino was hired and paid on a time-and-material basis. Petrina also disclaimed any knowledge of any architectural drawings or blueprints.
The record does not indicate that Petrina lacked education, experience or relevant knowledge. Petrina graduated from the University of North Carolina, and described himself as self-employed in his family's pest control company. At the time of the renovation of his home, Petrina also worked as a part-time realtor. Regarding his purchase of the subject home in 1999, Petrina stated, "Now, my father being the attorney that he is, made sure that we had a CO before we moved into that house[.]" Petrina also acknowledged, "You just can't put up a deck without a permit, or anything else."
In August 2005, a construction permit application for the renovation project was submitted to the Township of Nutley (Township). The application listed "Jerry P. Martino" as the "Responsible Person in Charge once Work has Begun." The application was signed by Petrina as "the owner in fee of the property." The application was also signed by Martino in the agent section, which included the following line: "( ) Check if contractor." Notably, Martino did not check the blank space to indicate that he was the contractor.
The application appears to allow either the owner or the owner's agent to apply for the permit. In this case, however, both sections were completed.
From Petrina's deposition testimony, it appears that substantial work on the renovation project preceded the October 4, 2005 issuance of the construction permit:
Notably, the construction permit issued by the Township does not reference Martino at all; rather, it lists Petrina as the "Contractor."
Q. When did Mr. Martino start the work with regard to those renovations?
A. I would say in the neighborhood of 2004. I would go from my recollection, my fiancé passed away in 2005, and Jerry had been working on the house for a year and a half before that. So ballpark, somewhere around 2004.
Q. Do you recall what month or what season?
A. It started in the fall, so I would say end of 2003, beginning of 2004.
Despite his deposition testimony to the contrary, the record indicates that Petrina was actively involved in the permit-acquisition process. On August 23 and September 12, 2005, Petrina submitted forms to the Township, where he listed "self" as the contractor under plumbing, building, electrical, and fire subcode sections. Of greater significance, on October 17, 2006, Petrina submitted an application to amend his construction permit to include construction on "part of [the] deck." On January 17, 2007, the Township issued a "permit update" — authorizing construction work on the deck — and again listing Petrina as the "Contractor." It appears that the renovation work was completed by 2008.
The house already had a deck when Petrina purchased it in 1999. Apparently part of the deck had to be removed to allow for the removal of an oil tank. Petrina indicated that "the majority of the deck is new."
Between February 2008 and January 2009, the Township sent Petrina three letters regarding lack of final inspections and two letters regarding code violations. Notably, Martino was neither referenced nor copied on these letters.
Petrina's claim that Martino completed all of the work on the project, including the deck, is severely undermined by his own deposition testimony:
Q. Did you contact Mr. Martino after this incident to advise him as to what happened and ask him why something like this would happen?
A. At that time Mr. Martino and my relationship was severed. Mr. Martino and I ended our relationship shortly after my fiance passed away.
Q. So I take it from your answer you have not contacted him.
A. No, I have not. I have not spoken with Mr. Martino nor had any contact since my fiancé passed away, which, for the record, is 2006, end of 2005.
On July 21, 2011, plaintiffs filed a complaint against both Petrina and Martino alleging negligence, "in that they failed to properly design, construct, inspect and/or repair the deck on the subject premises," and related claims. On September 15, 2011, Petrina filed an answer wherein he asserted cross claims for contribution and indemnity against "co-defendant(s)." The claims against Martino were dismissed in February 2012 for lack of prosecution, pursuant to Rule 1:13-7.
In January 2013, Petrina and plaintiffs filed cross motions for summary judgment. Petrina argued that he "is not a contractor" and that his "only involvement [with the deck] was paying Jerry Martino to complete the job." Plaintiffs disputed these claims, noting that "Petrina represented to the Township of Nutley that he was the general contractor for the renovations to his property."
On February 22, 2013, after oral argument, the motion judge granted Petrina's motion for summary judgment and denied plaintiffs' cross motion. The judge found "no basis for imposing vicarious liability on Mr. Petrina as 'the contractor' on this job." The judge also rejected the argument that Petrina could be liable under a "negligent hiring" theory for hiring an unlicensed, uninsured contractor, despite acknowledging that "the provision of liability insurance inures to the benefit of social guests as well as the host."
Here, the judge was obviously referring to the provisions of the New Jersey Consumer Fraud Act (CFA) mandating licensure, registration and insurance for home improvement contractors. See N.J.S.A. 56:8-138(a) ("[N]o person shall offer to perform, or engage, or attempt to engage in the business of making or selling home improvements unless registered with the Division of Consumer Affairs in accordance with the provisions of this act."); N.J.S.A. 56:8-142(a) ("[E]very registered contractor who is engaged in home improvements shall secure, maintain and file with the director proof of a certificate of commercial general liability insurance in a minimum amount of $500,000 per occurrence.").
On March 19, 2014, after plaintiffs were finally successful in serving their complaint upon Martino, the Law Division vacated the dismissal of the claims against Martino. When Martino then failed to file an answer, default was entered against him. On September 12, 2014, the court entered a default judgment against Martino, awarding $95,426 to Cynthia and $20,000 to Michael. On October 22, 2014, plaintiffs filed a notice of appeal, contesting the Law Division's February 22, 2013 orders granting Petrina's and denying plaintiffs' summary judgment motion.
II.
Before reaching the merits of plaintiffs' arguments on appeal, we first address whether the appeal was timely filed.
Petrina asserts that plaintiffs were required to file their appeal within forty-five days of the trial court's February 22, 2013 order granting summary judgment on the claims against him. Petrina argues that the summary judgment order was a final judgment because, at the time, all claims had been dismissed against all parties: the claims against Martino had been dismissed in February 2012 for failure to prosecute, and the claims against Petrina were dismissed in February 2013 on summary judgment. Accordingly, he argues that plaintiffs' appeal — which was not filed until after the trial court vacated the dismissal against Martino in March 2014 and entered default judgment against Martino in September 2014 — was untimely. We disagree.
To be considered a final judgment appealable as of right, an order must dispose of all issues as to all parties. Hudson v. Hudson, 36 N.J. 549, 553 (1962). Petrina's argument raises the following question: Does a dismissal for failure to prosecute completely dispose of all issues with respect to the dismissed party? If so, then a subsequent order granting summary judgment on all remaining claims against the remaining parties in a lawsuit would constitute a final judgment. In contrast, if a dismissal for failure to prosecute does not completely dispose of all issues with respect to the dismissed party, then a subsequent order granting summary judgment with respect to all other parties would not be final and would not trigger the forty-five day period for filing an appeal.
We answer this question in the negative. Contrary to the unpublished cases cited by Petrina, "a dismissal without prejudice . . . is not a final order and therefore may not be brought before this court on an appeal as of right." Kwiatkowski v. Gruber, 390 N.J. Super. 235, 237 (App. Div. 2007). Furthermore, "if a dismissal without prejudice is entered under a particular rule that itself provides for vacation of the dismissal . . . the order of dismissal may not be appealable unless vacation is first sought." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.4 on R. 2:2-3 (2016) (citing Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997)).
In light of these guiding principles, we are satisfied that an administrative dismissal for failure to prosecute does not constitute a final judgment. Rule 1:13-7 itself provides for vacation of such dismissals. Thus, if Petrina wanted to put plaintiffs "on the clock" to file their appeal, Petrina had an available method for vacating the administrative dismissal against Martino and securing a final judgment with respect to the claims against him. Until this final judgment was obtained, however, plaintiffs had no obligation to file their appeal. In fact, plaintiffs could not have filed an appeal at that time even if they had wanted, without further application to the Law Division.
"In multi-defendant actions in which at least one defendant has been properly served, [a] consent order shall be submitted within [sixty] days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required."
If plaintiffs had desired to appeal after the entry of summary judgment in favor of Petrina, they would have needed to obtain an order dismissing their claims against Martino with prejudice, which would have required either a further motion or a consent order.
The final judgment, disposing of all issues as to all parties, was not rendered until September 12, 2014, when the trial court entered the default judgment against Martino. Accordingly, plaintiffs' appeal — filed on October 22, 2014 — was timely.
III.
We now turn to the merits of plaintiffs' appeal. When reviewing an order granting summary judgment, we "employ the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).
Bald assertions without factual support are not sufficient to defeat a motion for summary judgment. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97 (App. Div. 2014). However, the trial court cannot make credibility determinations without a fact-finder, and contradictory statements of material facts should be left to the jury. Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007).
If a general contractor or landowner generally retains control of the manner and means of doing the work, he or she "is responsible for the negligence of the independent contractor even though the particular control exercised and its manner of exercise had no causal relationship with the hazard that led to the injury[.]" Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998) (quoting Bergquist v. Penterman, 46 N.J. Super. 74, 85 (App. Div.), certif. denied, 25 N.J. 55 (1957)). "A general contractor may also be liable where he knowingly engages an incompetent subcontractor[.]" Tarabokia v . Structure Tone, 429 N . J . Super . 103, 113 (App. Div. 2012) (citation omitted), certif . denied, 213 N . J . 534 (2013).
After careful consideration, we conclude that several issues of material fact preclude summary judgment in Petrina's favor. Initially, the record is far from clear that Martino was the contractor responsible for the construction of the deck. On one hand, Martino certified on the construction permit application that he was the "responsible person in charge" of the project, and Petrina testified that Martino physically performed the construction.
On the other hand, the record indicates that Petrina was involved to a significant degree in the renovation project. While both Petrina and Martino signed the construction permit application, thereafter Petrina alone submitted at least three different forms to the Township listing himself as the "Contractor" for the project, with no mention of Martino. Furthermore, on both construction permits issued by the Township — the initial construction permit issued in 2005 as well as the permit update in 2008 authorizing construction of the deck — Petrina is listed as the "Contractor."
Moreover, much of the documentary record undermines Petrina's credibility. Petrina's testimony that Martino handled all of the construction permits is directly contradicted by the Township's records. Petrina's claim that Martino performed all of the work on the project is contradicted by his own testimony that he parted company with Martino by January 2006, yet the Township issued a permit update authorizing construction work on the deck in January 2007. Additionally, the record indicates that Petrina did not have a contract with Martino, and paid him on a time-and-material basis, arguably treating him like an employee.
Thus, when viewing the record in the light most favorable to plaintiffs, reasonable minds could differ as to whether Petrina was indeed the contractor responsible for the construction project, and specifically whether he was responsible for the construction of the defective steps.
The record is also unclear whether Petrina engaged an incompetent contractor. The report of plaintiffs' expert describes rather glaring deficiencies in the stairway construction, contrary to the applicable building code. The record contains no explanation why Martino was unlicensed nor any explanation why Petrina abruptly terminated his relationship with Martino in January 2006. Moreover, Petrina's testimony that he has had no contact with Martino since January 2006 also raises the possibility of another person, who may have been incompetent, constructing the stairway.
Trial may reveal that Petrina fired Martino for incompetence, which could provide a further basis for liability. See Reuben I. Friedman, Annotation, When is Employer Chargeable with Negligence in Hiring Careless, Reckless, or Incompetent Independent Contractor, 78 A.L.R. 3d 910, 920 (1977) (citing Peck v. Woomack, 192 P. 2d 874 (1948)) (explaining that although originally unaware of contractor's incompetence, employer who acquires knowledge of incompetence thereafter may be liable for inaction). --------
Plaintiffs also assert an alternative basis for imposing liability upon Petrina for this accident, namely, his act of hiring an unlicensed and uninsured contractor which unfairly denied plaintiffs the benefit of insurance coverage that would otherwise be available. Plaintiffs rely on Puckrein v. ATI Transport, Inc., 186 N.J. 563, 575 (2006), where the Court addressed the issue of whether the principal "violated its duty to use reasonable care in selecting a trucker and whether it knew or should have known of [the trucker's] incompetence." Id. at 579. Regarding the principal's duty of inquiry, the Court explained:
[A principal] may be charged with negligence in hiring an independent contractor where it is demonstrated that he should have known, or might by the exercise of reasonable care have ascertained, that the contractor was not competent. . . . [A] company whose core purpose is the collection and transportation of materials on the highways, has a duty to use reasonable care in the hiring of an independent trucker including a duty to make an inquiry into that trucker's ability to travel legally on the highways. At a
minimum, [the principal] was required to inquire whether its haulers had proper insurance and registration because without those items the hauler had no right to be on the road.
[Id. at 579-80 (internal quotations and citations omitted).]
Plaintiffs argue that, like the principal in Puckrein, Petrina, at a minimum, was required to inquire whether Martino had proper insurance, licensure, and registration, because without those items, Martino had no right to work as a home improvement contractor. Ibid.; N.J.S.A. 56:8-138(a), 142(a).
In premises liability cases, courts have generally followed the common law in order to derive the nature of the duty owed to plaintiff. "The scope of the landowner's duty is defined by that person's status as a business visitor, social guest, or trespasser." Parks v. Rogers, 176 N.J. 491, 497 (2003) (citation omitted).
The status-based evaluation of duty recognizes the differences in the relationship between the premises owner and each of these three categories of injured party. "The first come by invitation, express or implied; the second are those who are not invited but whose presence is suffered; the third are neither invited nor suffered."
Estate of Desir v. Vertus, 214 N.J. 303, 316 (2013) (quoting Lordi v. Spiotta, 133 N.J.L. 581, 589 (Sup. Ct. 1946)).
A host owes a limited duty to a social guest as to conditions of the host's property. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997).
Our Supreme Court has stated:
The duty of care owed to a social guest is greater than that owed to a trespasser, but less than that owed to a business visitor. A landowner is not required to provide greater safety on his premises for a social guest than he would for himself. For example, the landowner does not have a duty to scour the premises to discover latent defects. On the other hand, the social guest should be at no greater risk than the landowner, who, by reason of his knowledge of the property, has the ability to protect himself against a dangerous condition.
[Parks, supra, 176 N.J. at 497-98 (footnote and citations omitted).]
Over time, however, the rigid definitions of duty, wholly reliant upon the injured person's status as invitee, licensee, or trespasser, have evolved, and our courts now define a landowner's duty in a manner consistent with principles of public policy. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Whether the owner of property has a duty in particular circumstances, and the scope of that duty, are determined by "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid. (citation omitted).
We do not reach the issue of whether defendant had an independent duty, owed to plaintiff, to have an insured contractor perform the work. Rather, we construe the facts presented as implicating one aspect of the duty not to hire an incompetent contractor. Viewing the facts in the light most favorable to plaintiffs, this case presents a homeowner who undertakes a major home renovation project, without the assistance of an architect or engineer, who hires an unlicensed and uninsured contractor of unknown competence, and has him complete substantial work before applying for a building permit. Further, the homeowner misrepresents himself as the contractor, thereby enabling an unlicensed and uninsured contractor to perform work. These are all factors that reasonable juries may differ upon when deciding whether defendant breached his duty not to hire an incompetent contractor.
In sum, we conclude that genuine issues of material fact exist precluding summary judgment. We therefore affirm the motion court's order denying plaintiff's motion, vacate the order granting Petrina's motion, and remand for further proceedings.
Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION