NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Brenda Cannetto, and her husband Michael Cannetto1 suing per quod, appeal the dismissal on summary judgment of their complaint against defendants Southbrook Garden Apartments; Gold, Haber, Gold Enterprises; Salem Management Company.2 We affirm.

I.

The following facts and procedural history are gleaned from the record before us.

Plaintiffs resided at the Southbrook Garden Apartments in Eatontown. On February 14, 2011, Brenda tripped and fell while ascending the steps leading from the parking lot to the sidewalk outside her building. At the time of the incident, the steps were being reconstructed and temporarily no handrail was installed. Brenda had not used the reconstructed steps prior to February 14. As a result of the fall, Brenda suffered injury to her knee requiring total knee replacement surgery.

On April 25, 2011, plaintiffs filed suit alleging Brenda's injuries arose from defendants' negligent design and construction of the steps, failing to promptly install a handrail, as well as their failure to warn Brenda of the inherently dangerous condition, or provide a safe alternative means of entry to and egress from her apartment.

After discovery, defendants filed for summary judgment, arguing plaintiffs did not establish a dangerous condition on the premises. In support of their motion, defendants offered the expert report of Bernard P. Lorenz, P.E., P.P. The report provided the following dimensions for the steps in question: (1) the landing was fifty-four and three-fourths inches in width by twenty-three and three-eighths inches in depth; (2) the first step was eight and three-sixteenths inches up from the parking lot surface; and (3) the second step leading to the adjacent walkway was eight and one-eighth inches above the landing. Lorenz further found the steps to be in full compliance with both § 250-1 of the Borough of Eatontown Property Maintenance Code and New Jersey's Regulations for Maintenance of Hotels and Multiple Dwellings, N.J.A.C. 5:10. Paragraph Seven of defendants' Rule 4:46-2(a) Statement of Undisputed Material Facts accompanying their summary judgment motion stated Lorenz's measurements accurately reflected the steps' dimensions.

In opposition to the motion, plaintiffs submitted the report of their expert, William Poznak, P.E. & L.S. Poznak provided different dimensions for the stairs: (1) the width of the landing was fifty-one inches; (2) the first step up to the landing was eight inches high; and (3) the second step was eight and one-half inches high. Poznak concluded the stairs violated several relevant codes — namely "A Design Guide for Home Safety,"3 "Guidelines for Stair Safety,"4 and the "NFPA Life Safety Code"5 — by building the steps with more than three-sixteenths of an inch variation between the steps and not having a handrail installed at the time of Brenda's fall. In Poznak's opinion, defendants' failure to comply with these generally applicable model codes created a dangerous condition that caused Brenda's injury. Plaintiffs further argued the court could infer negligence based upon defendants' original plan to install a handrail on the steps, which occurred subsequent to the incident. Plaintiffs' Rule 4:46-2(b)-mandated Response to Material Facts, Paragraph Seven, read only: "Admit in part."

Defendants' expert rejected Poznak's reliance on the referenced model guidelines, arguing that since none were adopted in either the governing regulation or municipal ordinance, the substance of the guidelines was irrelevant. Defendants maintained they were not responsible for Brenda's injury because they complied with all relevant applicable regulations.

After oral argument, the motion judge entered summary judgment in favor of defendants and dismissed the complaint. Specifically, the court found: (1) plaintiffs presented no opposition to defendants' assertion Poznak's measurements were incorrect and the stairs satisfied the applicable codes; (2) plaintiffs' proposed codes do not govern in New Jersey and, moreover, plaintiffs failed to counter defendants' argument the stairs satisfy even the inapplicable codes; (3) N.J.A.C. 5:10-7.7 does not require handrails for the steps in question; (4) any inference of negligence based upon defendants' installing handrails in March or April 2011 is unfounded since handrails are not required under New Jersey regulations; and (5) plaintiff herself did not know the precise cause of the accident: just because the stairs may have been different than the last time plaintiff used them does not mean defendants were negligent.

Plaintiffs filed a motion for reconsideration, which was denied.

This appeal of summary judgment in favor of defendants and dismissal of plaintiffs' complaint ensued.

II.

On appeal, plaintiffs argue the motion judge erred because material factual disputes exist regarding the steps' dimensions and compliance with relevant industry guidelines. Additionally, plaintiffs contend the judge erred in rejecting an inference of negligence drawn from the planned installation of a handrail, which occurred after the injury. We conclude the trial court properly granted summary judgment.

Summary judgment may be granted when the evidence before the trial court on the motion, viewed in a light most favorable to the non-moving party, indicates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing an order granting or denying summary judgment, we employ the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

Rule 4:46-2(b) mandates that any party opposing summary judgment file a corresponding statement to the movant's Rule 4:46-2(a) Statement of Undisputed Material Facts "admitting or disputing each of the facts in the movant's statement." Any facts not "specifically disputed" with precise record references as support shall be deemed admitted for the purposes of deciding the motion. See ibid.; Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 4:46-2 (2015); see also Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568 n.2 (2009) (noting non-moving parties should "comply with the dictates of R. 4:46-2(b) rather than hope for mercy when they do not").

Nevertheless, despite the Rule's language, we have held that "where the motion is opposed and admissible evidence in the opposition raises a genuine dispute of a material fact, the motion judge should order compliance with the requirements of [the Rule], failing which a monetary sanction may be imposed." Leang v. Jersey City Bd. of Educ., 399 N.J.Super. 329, 356 (App. Div. 2008), aff'd in part and rev'd in part on other grounds, 198 N.J. 557 (2009). In Leang, we held the motion judge erred in granting summary judgment based solely upon the non-movant's failure to comply with Rule 4:46-2(b), thereby neglecting "to follow the Brill mandate" by "merely accept[ing] as true all the allegations of a [moving] party's statement with no consideration of `the competent evidential materials.'" Id. at 357-58 (quoting Brill, supra, 142 N.J. at 540). On appeal, the Supreme Court affirmed our reversal of summary judgment, concluding the motion judge erroneously seized upon the Rule's strict language where "the moving papers themselves demonstrated significant factual disputes" that "alone should have resulted in a denial of some of the requested relief." Leang, supra, 198 N.J. at 568 n.2.

Here, there can be no question plaintiffs' Rule 4:46-2(b) response to defendants' proffered dimensions, "[a]dmit in part," fails to meet the Rule's requirements. However, it is equally clear plaintiffs' expert's report, submitted in opposition to summary judgment, offered different dimensions for the steps. Plaintiffs raised the report in their brief and at oral argument and, in fact, the motion judge noted the disparity in his oral decision.

In disregarding this known dispute as to the steps' dimensions, the trial court erroneously seized upon the strict language of Rule 4:46-2(b) without adhering to the "Brill mandate": that a court ruling on a motion for summary judgment consider the evidence in the light most favorable to the non-movant, even where that non-movant has deviated from the Rule's procedural dictates. Leang, supra, 399 N.J. Super. at 357-58. Where "a close review of the papers referred to by the moving parties themselves would have demonstrated the existence of genuine issues of [] fact," summary judgment should not be based upon the trial court's finding the movant's proffered undisputed facts admitted due to a procedural error in the non-movant's response. Leang, supra, 198 N.J. at 568 n.2. Because a review of the papers would have demonstrated the parties' disagreement as to the steps' measurements, the trial court erred in concluding no factual dispute existed.

However, the existence of a factual dispute regarding the steps' dimensions is insufficient, on its own, to warrant reversal since the dispute must be material. R. 4:46-2(c); Pressler & Verniero, supra, comment 2.1 on R. 4:46-2. Unless the deviation between the experts' measurements is substantial in nature in that "if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion. . . could sustain a judgment in favor of the non-moving party," summary judgment should be affirmed. Brill, supra, 142 N.J. at 538.

Materiality as to the disputed measurements should first be analyzed under state and local regulations, which the parties stipulate apply here. N.J.A.C. 5:10-7.7(a), which governs the construction of steps at multiple-family dwellings, provides in pertinent part:

Because under either party's proffered dimensions the relevant steps have neither (1) a total rise of at least twenty-four inches nor (2) at least four risers, no handrail was necessary to comply with state regulation. If, however, handrails are required under N.J.A.C. 5:10-7.7(a), the regulation goes on to describe requirements for the handrails, including:

[N.J.A.C. 5:10-7.7(a)(1).]

Plaintiffs' argument that this section suggests that a handrail was required here goes against the unambiguous meaning of the provision and is therefore meritless. See Maeker v. Ross, 219 N.J. 565, 575 (2014).

Similarly, nothing suggests the steps failed to comply with the Eatontown Property Maintenance Code, which provides: "All sidewalks, walkways, stairs, driveways and parking spaces in similar areas shall be kept in a proper state of repair, and maintained free from hazardous conditions." Borough of Eatontown Property Maintenance Code § 250-1.B. Consequently, under state and municipal law any dispute between the parties as to the steps' proper measurements is immaterial. See Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).

Plaintiffs nevertheless argue the dispute is material in light of their expert's reliance on three model guidelines for stair construction: A Design Guide for Home Safety, the Guidelines for Stair Safety, and the NFPA Life Safety Code. Plaintiffs contend these model guidelines are pertinent as they inform plaintiffs' expert's opinion that defendants were negligent. Since compliance with the minimum standards of state and local regulatory law does not preclude a finding of negligence, see Restatement (Second) of Torts, § 288C (1965), plaintiffs argue their expert's reliance on the model guidelines requires reversal of summary judgment. We disagree.

The cases upon which plaintiffs rely are distinguishable. Those cases involved the potential application of federal Occupational Safety and Health Administration (OSHA) standards of care to situations not necessarily within OSHA's regulatory ambit. See Costantino v. Ventriglia, 324 N.J.Super. 437, 442 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000); Kane v. Hartz Mountain Indus., Inc., 278 N.J.Super. 129, 141-42 (App. Div. 1994), aff'd, 143 N.J. 141 (1996); Smith v. Kris-Bal Realty, Inc., 242 N.J.Super. 346, 352-53 (App. Div. 1990); Sanna v. Nat'l Sponge Co., 209 N.J.Super. 60, 69 (App. Div. 1986). However, as a regulatory framework informing standards of care, OSHA has been adopted in this state. See N.J.A.C. 12:100-5.2. The same cannot be said for plaintiffs' proposed model guidelines, which are in fact completely unmoored from New Jersey law or regulations.

We therefore conclude the trial court properly held plaintiffs' proposed model guidelines not relevant to the instant dispute. In light of defendants' compliance with New Jersey law and regulations, any factual dispute between the parties as to the steps' dimensions is not material. R. 4:46-2(c).

We determine the motion judge properly granted summary judgment in favor of defendants. Given the basis of our decision, we need not address plaintiffs' challenge to the motion judge's rejection of an inference of negligence based upon defendants' subsequent installation of a handrail. However, we note it has long been the general rule that evidence of changes and repairs made subsequent to an injury, or of subsequent precautions, is not admissible as showing negligence or as an admission of negligence. Rynar v. Lincoln Transit Co., Inc., 129 N.J.L. 525, 530 (E. & A. 1943); Schwartz v. Fed. Deposit Ins. Corp., 127 N.J.L. 556, 558 (E. & A. 1942); Perry v. Levy, 87 N.J.L. 670, 672 (E. & A. 1915).

Affirmed.