NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

In this tort action, plaintiff Guelin Ramirez appeals from a Law Division order granting summary judgment to defendants 205 Liberty, LLC (205 Liberty), Pereira Electrical Contracting, Inc. (Pereira Electric), David Pereira, and Manuel Pereira. For the reasons that follow, we reverse.

I

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff, the non-moving party. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).

Plaintiff was employed as an electrician for Pereira Electric, which is solely owned by brothers David and Manuel.1 Pereira Electric has its principal place of business at 205 Liberty St. (the property) in Metuchen. The property is leased to Pereira Electric by its owner, 205 Liberty, which is also solely owned by David and Manuel.

On July 18, 2009, while in the course of his employment with Pereira Electric, plaintiff had installed phone wires on the second floor at the company's office, when he proceeded to walk down the stairs to the first floor. Unbeknownst to plaintiff, the staircase was temporarily installed; the structure collapsed, causing him to fall approximately fifteen feet. As a result, plaintiff suffered serious injury.

The staircase was temporarily installed on a weekend approximately a week before the accident by Manuel and George Miller, who was not an employee of either Pereira Electric or 205 Liberty. During his deposition, David testified that Miller did not perform any work on behalf of Pereira Electric, but was working as a friend to Manuel and him. Manuel and Miller temporarily tacked the staircase in place with a few nails in the wood framing to hold it in position until sheetrock was installed. There were no signs or warnings posted to indicate the stairs should not be used. On the Monday after the temporary staircase was installed, Manuel told "whoever was in the office" that day not to use the stairs. However, Manuel admits that he did not know if plaintiff ever received the warning.

In accordance with the property's triple net lease agreement, Pereira Electric was obligated to pay all real estate taxes, property insurance, maintenance, and renovation work. Specifically, Article III of the lease details Pereira Electric's duties as lessee for alterations, improvements, and fixtures. Section 3.01 provides: "It is contemplated that Lessee shall alter, improve, remodel, and reconstruct the Leased Premises and install fixtures and equipment therein all at Lessee's sole cost and expense and in a manner reasonably acceptable to Lessor for the purpose of meeting Lessee's needs." Pereira Electric also had the right to make property improvements as set forth in Section 3.02, which states: "Lessor shall have the right from time to time during the term or any extended term of this Lease to construct in or on the Leased Premises such buildings, improvements, equipment, fixtures, or other facilities as Lessor deems necessary or convenient for Lessor's purposes."

Following the accident, plaintiff filed a workers' compensation claim against Pereira Electric, which was settled. Thereafter, he filed a personal injury action against 205 Liberty, Pereira Electric, and the Pereira brothers, alleging that he was seriously injured as a result of the dangerous condition they created by installing a temporary staircase without preventing the use thereof or posting warning signs.

At the conclusion of discovery, all defendants filed a motion for summary judgment. The Pereira brothers and Pereira Electric argued that the staircase renovation was a property improvement by Manuel, acting on behalf of Pereira Electric as a tenant. Pereira Electric maintained that as plaintiff's employer, it could not be liable in a civil action for plaintiff's work-related injuries based upon the immunities afforded by workers' compensation law. In turn, 205 Liberty contended that it could not be held liable for plaintiff's injuries as it was not involved in the renovation work; the work was being done by Pereira Electric as 205 Liberty's tenant in accordance with the lease agreement.

Plaintiff opposed the motion. As to 205 Liberty, plaintiff argued that the court should not accept Manuel's self-serving certification that he and Miller were doing the renovation work solely on behalf of Pereira Electric. Moreover, plaintiff argued under Geringer v. Hartz Mountain Development Corp., 388 N.J.Super. 392 (App. Div. 2006), certif. denied., 190 N.J. 254 (2007), 205 Liberty was not insulated from liability because, pursuant to the triple net lease agreement, as landlord it had an oversight role with respect to the renovation work.

Following oral argument, the motion court issued a bench decision granting summary judgment to all defendants. Although the parties argued the merits of applying Geringer and other case law, the court did not clearly mention the law it relied upon in reaching its legal conclusions. See R. 1:7-4; 4:46-2(c). In finding that 205 Liberty was not liable, the court reasoned that plaintiff did not establish that the renovation work by Manuel and Miller was being done on behalf of 205 Liberty. The court stated: I find that the landlord had no responsibility for the steps in the place, had no responsibility for entering and creating the steps. I find that there is no reasonable jury who could find that [Manuel] was working on those steps on behalf of the landlord, the landlord had no right to go in and make those steps. It's distinguishable from the cases that you make (sic) where the landlord has a right to see an approved plans before they are undertaken. In this case[,] the landlord did not have that right to enter and approve and make changes, and, therefore, it's distinguishable. And unless you tell me there was something [funny] going on between Pereira and 205, I'm granting summary judgment.

This appeal followed.

II

Before us, plaintiff contends that summary judgment should not have been granted as to 205 Liberty, as landlord, and to David and Manuel, individually, as principals of 205 Liberty, for creating a dangerous condition by installing a temporary staircase without preventing the use thereof or posting warning signs. Plaintiff argues that the motion court misapplied the summary judgment motion standard and controlling case law. Specifically, plaintiff argues that there was a genuine issue of material fact regarding whether Manuel and David were acting as landlords or tenants in doing the renovation work that caused the plaintiff's injury, which should not have been decided on a motion for summary judgment. Plaintiff asserts that the court erred in its application of Geringer to the facts of this case. He contends that under Geringer, the fact that David and Manuel, acting as principals of 205 Liberty, planned and erected the staircase improvement, coupled with 205 Liberty's rights in the triple net lease agreement regarding improvements, makes 205 Liberty potentially liable as a landlord. Moreover, plaintiff argues that the court failed to analyze premise liability under the test set forth in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439-49 (1993), which requires a fact specific analysis of: 1) the relationship of the parties; 2) the nature of the attendant risk; 3) the opportunity and ability of the parties to exercise care; and 4) whether public interest is served by imposing liability on a party.

Defendants argue that the court's application of Geringer was correct, and that there was a clear delineation that the improvement was undertaken by Pereira Electric. In support, defendants offer no evidence other than Manuel's statement. Defendants also contend that the Hopkins analysis does not apply, and further, the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, insulates Manuel and David from personal liability as owners of Pereira Electric, even though they are both also the principals of 205 Liberty.

We begin with a review of the well-established applicable legal principles. We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citation omitted). Thus, we consider, as the motion judge did, "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." Id. at 406 (citation omitted). "If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J.Super. 325, 333 (App. Div. 2013) (citation omitted).

We review issues of law de novo and accord no deference to the trial judge's legal conclusions. See Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Summary judgment should be denied when determination of material disputed facts depends primarily on credibility evaluations. Petersen v. Twp. of Raritan, 418 N.J.Super. 125, 131 (App. Div. 2011) (citing Parks v. Rogers, 176 N.J. 491, 502 (2003)).

Applying these standards, we conclude that summary judgment was improvidently granted. The motion court incorrectly found that there was no genuine dispute that Manuel and Miller installed the staircase on behalf of Pereira Electric. The court also erred in concluding that, based upon the triple net lease agreement, 205 Liberty did not have any potential liability for the staircase installation.

We initially address the main issue in this case — whether the record clearly supports a finding as to what entity was performing the stairway renovation work. The trial court determined that 205 Liberty could not be held liable based upon Manuel's certification that he and Miller were acting solely on behalf of Pereira Electric. Although there is no direct proof contradicting the certification, there are sufficient facts in the record which warrant the determination of this issue by a factfinder at trial.

We begin with the understanding that either entity had the right to install the new stairway. As Section 3.01 provided, it was contemplated that lessee Pereira Electric "shall . . . improve. . . and reconstruct the Leased Premises . . . at Lessee's sole cost and expense and in a manner reasonably acceptable to Lessor for the purpose of meeting Lessee's needs." Section 3.02 stated that the lessor 205 Liberty had the "right from time to time during the term or any extended term of this Lease to construct in or on the Leased Premises such . . . improvements . . . as Lessor deems necessary or convenient for Lessor's purposes." The only proof to support defendants' position that the work was being done by Pereira Electric was Manuel's self-serving statement that, despite being a principal for both Pereira Electric and 205 Liberty, the renovation work was being performed by Pereira Electric. However, "[i]t is ordinarily improper to grant summary judgment when a party's state of mind, intent, motive or credibility is in issue." In re Estate of DeFrank, 433 N.J.Super. 258, 266 (App. Div. 2013). "Indeed, `[t]he cases are legion that caution against the use of summary judgment to decide a case that turns on the intent and credibility of the parties.'" Ibid. (quoting McBarron v. Kipling Woods, L.L.C., 365 N.J.Super. 114, 117 (App. Div. 2004)).

During oral argument and prior to issuing its bench decision, the motion court noted that when the stairs were being worked on, Manuel "was working as a tenant and not as a [landlord]." Thus, the state of mind, knowledge and intent of the parties is at issue. This is not just in regard to whether the decisions made prior to the accident were formulated either by the parties as landlords or as tenants, but with regard to statements made in depositions after the accident. The fact that the Pereira brothers are the principals and sole owners of both Pereira Electric and 205 Liberty further compounds the difficulty in determining which entity was installing the staircase. In addition, whether the work was being done by Pereira Electric or 205 Liberty is furthered clouded by the absence of any invoices, financial records, or documentation indicating which entity covered the cost of the materials and compensation for the work performed. One of the business entities should have records of the renovation expenses for income tax purposes.

Since both entities had the right to improve the property, either party could have installed the new staircase. Based upon the record, the question as to which entity was performing the renovation work should have remained for a factfinder to determine at trial.

We also part company with the motion court's finding that 205 Liberty does not have any potential liability to plaintiff as a result of the triple net lease agreement. Even if Pereira Electric installed the new stairway, 205 Liberty is also potentially liable under the lease agreement. As we recognized in Geringer, a triple net lease agreement does not relieve the landlord from liability when the provisions of the lease require the landlord's approval in the design and construction process. Geringer, supra, 388 N.J. Super. at 404-05. Summary judgment is not appropriate, and a trial is necessary where it is alleged that the landlord "breached its duty to exercise reasonable care in assuring the safe design and construction of the stairway on which plaintiff suffered her injury." Ibid.

Here, the lease agreement provides that any improvement by Pereira Electric must be performed "in a manner reasonably acceptable to [205 Liberty] for the purpose of meeting [Pereira Electric's] needs." Granted, 205 Liberty's obligation to make sure that the property's improvements are reasonably acceptable is not as clearly defined as the landlord's role in Geringer. Furthermore, in Geringer, we held that "the surrounding circumstances suggest that [the landlord] kept its hand in the design and construction phase of the project, thereby providing it with both the `opportunity and ability to exercise reasonable care' in how the stairway in question was built." Id. at 403 (quoting Hopkins, supra, 132 N.J. at 439). Nevertheless, given that the Pereira brothers are both the property's landlord and tenant, through separate business entities, it is more than plausible that they were involved as property owners in deciding how to improve the premises. Consequently, it is incumbent upon a factfinder at trial to determine whether 205 Liberty and its principals, David and Manuel, in their individual capacity, were negligent in accepting the manner in which the new stairway was installed.

Reversed and remanded for trial.