PER CURIAM.
Plaintiff Judy Smith appeals from two trial court orders dated December 21, 2012, one granting summary judgment in favor of defendant City of Newark (the City) and the other granting summary judgment in favor of defendant City of Newark Housing Authority (the Authority).
Plaintiff alleged that on May 29, 2008, she tripped and fell on an uneven portion of sidewalk in front of the Oscar Miles Village apartment complex, owned by the Authority. Prior to filing suit, plaintiff served a notice of tort claim on the City.
Both defendants initially filed summary judgment motions before any discovery was taken. The City contended that it did not own the property where plaintiff sustained her injury. The Authority argued that it was never served with a notice of tort claim. The trial court granted both defendants' motions. Plaintiff appealed, contending that she had no opportunity to take discovery, that the City may have repaired the sidewalk after her fall thus demonstrating control over the sidewalk, and that she had preliminary evidence that the Authority was functioning as a City agency rather than as an independent entity.
We reversed and remanded, finding that summary judgment was improvidently granted, because plaintiff had no opportunity to take discovery.
After discovery was completed on remand, both defendants once again filed summary judgment motions. The trial court granted the City's motion, finding that the City did not own or control the sidewalk where plaintiff fell. The court granted the Authority's motion because plaintiff failed to serve a tort claim notice on the Authority. The court reasoned that the record demonstrated that the City and the Authority were separate entities, and service of a notice on the City did not satisfy plaintiff's obligation to serve a notice on the Authority.
On an appeal from a trial court's decision of a summary judgment motion, our review is plenary.
First, we find no merit in plaintiff's argument that the Authority should be considered a part of the City government for purposes of the Tort Claims Act. The record reflects that the Authority operates independently of the City and is a separate public entity.
Authority operates independently of the City's control. Plaintiff's summary judgment submissions did not create a material dispute of fact on that issue. We conclude that the Authority is a separate public entity for purposes of the Tort Claims Act.
On this appeal, plaintiff cites a February 22, 2007 Supplemental Services Agreement between the Authority, the City and the Newark Downtown Core Redevelopment Corporation, concerning each party's responsibilities for, and right to share in revenue from, the Prudential Arena. However, that agreement clearly supports a conclusion that the Authority and the City are separate governmental entities. If the Authority were merely another department of City government, there would be no need for the City to enter into a contract with the Authority.
Finally, we reject plaintiff's argument that service on the City should be deemed substantial compliance with her obligation to serve the Authority.
Plaintiff's reliance on
Plaintiff fell on May 29, 2008. She evidently knew or believed that the sidewalk was part of Oscar Miles Village, because she immediately complained to the apartment complex manager, Eladio Negron, about her fall. She knew she intended to file a lawsuit, because, through counsel, she served a tort claim notice on the City on August 26, 2008. Her notice stated: "A claim against the abutting property owner is anticipated. The incident was reported [to] Mr. Nagron [sic], the superintendent of the housing complex abutting Broom Street."
Plaintiff had ample time in which to research the ownership of the apartment complex, and either serve a notice on the Authority within ninety days,
Plaintiff argues that because Newark's supplemental tort claim notice form asked the claimant for the name of "the city agency . . . that you claim caused your damage," the form constituted an undertaking on the City's part to notify the Authority of plaintiff's claim because the Authority is a City "agency."
We affirm the order granting summary judgment in favor of the Authority.
Next we address plaintiff's argument that there was a material dispute of fact as to whether the City undertook responsibility for repairing the sidewalks abutting Authority property or otherwise exerted control over the maintenance of those sidewalks. After undertaking a de novo review, we conclude that no reasonable jury could reach either conclusion based on the summary judgment evidence.
Evidence of the City's ownership or control of the sidewalk is required to establish the City's potential liability.
This record contains no legally competent evidence that the City ever accepted responsibility for repairing or maintaining sidewalks abutting the Authority's properties, or ever agreed to do so. There was no such testimony from any witness who would have had personal knowledge of such an agreement. Jack Nata, a manager in the City's Department of Engineering, testified that the City occasionally repaired sidewalks adjoining City-owned buildings, but never repaired sidewalks abutting property owned by the Authority. He testified that, on one occasion, the City obtained State funding to replace two entire streets (Broad and Ferry Streets) "from building line to building line," which included "ripping up curbs, sidewalks, roadway, new streetlights, traffic signals." In that very limited context, the City replaced the sidewalks along with the roadbed. However, Nata, who was "the only [City] executive that would have supervision and control over sidewalk replacements," testified that the City had never repaired or replaced sidewalks abutting Authority property.
Nitin Patel, the Authority's principal engineer, testified that he was in charge of "central maintenance," which meant that he was responsible for procuring contracts for "major maintenance" at Authority housing complexes, including sidewalk repairs. He testified that each complex's site manager was responsible for inspecting that site's sidewalks and requesting repairs from central maintenance. As part of authorizing sidewalk repairs, Patel's practice was to take "before and after" photographs of the sidewalk. He confirmed that the sidewalk on which plaintiff fell was repaired after the fall, but he had no records of having authorized the repair and he did not know who performed the repair.
Patel testified that, on occasion, City contractors would undertake sidewalk repairs on a volunteer basis. That is, if they happened to be working in the vicinity and an Authority tenant asked them to fix a sidewalk, the contractor would accommodate the request. However, to Patel's knowledge, there was no formal arrangement between the Authority and the City "for the City of Newark to make repairs to Newark Housing Authority property." Patel also testified that if there were such an arrangement, he would know about it.
During the deposition, Patel was asked by defense counsel if he had "any reason to believe that the [C]ity is responsible to repair the sidewalk in front of the Oscar Miles Village?" Patel replied, "No." When questioned by plaintiff's counsel if he knew of "any other circumstances" in which the Authority had repaired "perimeter sidewalks," Patel responded that he did not know. He was later asked, "Is the practice of the Newark Housing Authority to believe that perimeter sidewalks are the responsibility of the City of Newark?" Patel responded, "Yes." The attorney then asked, "that's been your practice and procedure from 1985 until the present?" Patel said, "That's what my understanding is, yes."
On further questioning from defense counsel, Patel admitted that he had no factual basis for his understanding that the [City] "usually . . . takes care of" repairing perimeter sidewalks. When asked, "Have you ever seen the city do that?" he responded: "I don't know because there's a lot of sidewalks a lot of people repair. I don't know whether the city is repairing them or some private owners repaired them. I really don't know." He then clarified that it was his understanding that the City was responsible for "the perimeter of the curb and handicap ramps."
Despite Patel's testimony about his general assumptions, there was no testimony from any witness, including Patel, that the City agreed with Patel's assumptions, or that the City had undertaken a duty to repair sidewalks abutting Authority property, or that the City had acted in a manner consistent with such a duty. To the contrary, the highest ranking managers at both the City and the Authority, with personal knowledge, testified that there was no such arrangement, agreement, or understanding.
Eladio Negron, who was the asset manager for Oscar Miles Village in 2008, when plaintiff fell, and had personal knowledge of the complex's operation at the time, testified unequivocally that the Authority was responsible for the maintenance of the complex, including "the sidewalk that abuts the street at Broome and Mercer" in front of Oscar Miles Village. He testified that usually he would request that sidewalk repairs be done through the Authority's central maintenance office, but occasionally he would direct his own staff to repair a sidewalk.
Negron had no specific recollection of having the sidewalk repaired at the location where plaintiff fell, but he remembered that, during that time frame, the complex was working on a project to repair tripping hazards, in preparation for a HUD inspection. He testified that the sidewalk was probably repaired as part of that project. Negron also testified that he never asked anyone from the City to replace any sidewalk abutting Authority property.
Negron remembered that in May or June 2008, a short, heavyset African-American woman reported to him that "she fell on the property." She showed him where she fell and he "observed the little crack on the sidewalk." He testified that the sidewalk was repaired thereafter, and he assumed it was repaired as part of the "tripping hazards remediation" project undertaken in contemplation of the HUD inspection. He testified that the City was not involved in the HUD inspection and no City employees were present at the inspection. Negron testified that during his entire tenure at Oscar Miles Village, from 2008 to 2011, he never saw any City employees or contractors repairing any sidewalks in front of Authority property. He also testified that he had no "reason to believe" that the City repaired the sidewalk where plaintiff fell.
In short, we are unpersuaded by plaintiff's effort to create — from Nata's testimony about one discrete street replacement project — an inference that the City undertook a broader responsibility to repair sidewalks in general or, specifically, to repair the Authority's sidewalks. Nor was Patel's internally contradictory testimony about the Authority's "belief" sufficient, because he provided no specific facts to substantiate that belief.
Plaintiff contends that, under
Because plaintiff's evidence was inadequate to create a material dispute of fact as to the City's liability, even with the benefit of all favorable inferences, we affirm the grant of summary judgment to the City.
Affirmed.