QUYNTON CURRY, ETC. v. NEW COMMUNITY CORPORATION AND CELESTE M. ATKINS (L-2987-18, HUDSON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3776-20
QUYNTON CURRY,
a minor by ALISON RODRIGUEZ,
his Guardian ad Litem,
Plaintiff-Appellant,
v.
NEW COMMUNITY CORPORATION,
Defendant-Respondent,
and
CELESTE M. ATKINS,
Defendant.
_________________________________
Submitted September 20, 2022 – Decided September 29, 2022
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Civil Part, Hudson County, Docket No. L-
2987-18.
Seigel Law LLC, attorneys for appellant (James P.
Kimball, of counsel and on the briefs).
Carey & Grossi, attorneys for respondent (John J.
Grossi, III, on the brief).
PER CURIAM
Plaintiff, eight-year-old Quynton Curry, and his mother and guardian ad
litem, Alison Rodriguez, were visiting the home of family friend Ashantee
Oliver, who resided at an apartment complex owned by defendant New
Community Corporation (NCC), when he was bitten by a dog on his right ear,
left leg, and left arm while playing in the backyard. The dog was owned by
defendant Celeste Atkins, a NCC resident. According to the lease agreement
signed by all NCC residents, no dogs are allowed in or on NCC's properties.
Yet, Oliver owned a dog, as apparently did several other NCC residents based
on signs in the windows of their homes stating, "Dog on premises." Although
Atkins' dog nibbled on the ear of Oliver's daughter three years earlier, the
incident was not reported to NCC.
Judge Vincent J. Militello granted summary judgment dismissal of
plaintiff's claims against NCC based on reasons set forth in an oral decision.1
After applying the summary judgment standard set forth in Rule 4:46-2 and Brill
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Atkins failed to file an answer to the complaint; default was entered, followed
by default judgment in the amount of $750,000. Unfortunately for plaintiff,
Atkins was uninsured and essentially judgment proof.
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v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), the judge focused on
three decisions of this court.
First, the judge, relying on Cogsville v. Trenton, 159 N.J. Super. 71, 74
(App. Div. 1978), stated that "under common law ordinarily a landlord is not
responsible for injuries caused by a tenant’s dog." In Cogsville, we held
"ordinarily a landlord has no liability for a nuisance on leased premises unless
it existed prior to the letting and was continued by the tenant, or unless the
nuisance was the direct result of the use agreed to by the landlord." Ibid. The
judge found neither of these factors applied to the case at bar. NCC also did not
agree to allow dogs on the leased premises—in fact, its leases prohibited such.
The judge reasoned that under Cogsville, a dog owner is strictly liable for
damages caused by the dog in accordance with N.J.S.A. 4:19-16, but the dog
owner's landlord is not liable when the dog bites someone.
The judge next cited Linebaugh vs. Hyndman, where we broadened our
view of a landlord's liability for a tenant's pet. 213 N.J. Super. 117 (App. Div.
1986). There, we held "a landlord's responsibility to exercise reasonable care in
the maintenance of common areas under his control encompasses a duty owed
to his tenant's invitees to prevent injury from a vicious animal kept on such
premises with his knowledge." Id. at 119-20.
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Finally, the judge relied upon Hyun Na Seo v. Yozgadlian, 320 N.J. Super.
68, 71 (App. Div. 1999), a situation like the case at bar, where we fine-tuned
our reasoning for when a landlord might be held liable for a tenant's pet where
the lease agreement prohibits pets. In Hyun, we rejected the trial court's finding
that a lease provision prohibiting pets made the landlords an insurer for any
damages caused by a pet in violation of the provision. Id. at 71. We stated:
Plaintiff offered no proof that the dog that bit her was
known to have vicious propensities, let alone that the
landlord knew of the dog's prior vicious propensities.
We find those cases to be persuasive and conclude that
the trial judge erroneously elevated the landlords to the
status of an insurer for any damages caused by [their
tenant's] dog.
[Id. at 73.]
Considering this case law, Judge Militello reasoned NCC was entitled to
summary judgment because, despite NCC's no pet provision in its lease
agreement, and "even assuming" it knew Atkins had a dog, "[p]laintiff offered
no proof . . . the dog that bit him was known to have vicious propensities . . . ,
[and even if] . . . others knew of the dog’s propensities, there’s no evidence . . .
[NCC] knew of the dog’s vicious propensities."
We review a grant of summary judgment using the same standard that
governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.
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Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Summary judgment is appropriate when "the pleadings, depositions,
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issues 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); Brill, 142 N.J. at 528-29. "When no issue of fact exists, and only a question
of law remains, this [c]ourt affords no special deference to the legal
determinations of the [motion judge]." RSI Bank, 234 N.J. at 472 (quoting
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016)).
Considering our review of the record and the controlling case law,
summary judgment was proper for the cogent reasons set forth by Judge
Militello in his oral decision. There is no merit to plaintiffs' argument that
summary judgment was inappropriate based upon Rodriguez's deposition
testimony that there were "questions of fact presented as to NCC’s knowledge
of the existence of this dog (and other dogs) living at . . . [its] apartments, in
violation of its lease agreement with its tenants, as well as to NCC’s knowledge
of the vicious propensities of Atkins’[s] dog." We conclude, as did the judge,
plaintiff's assertions concerning NCC's lease provision prohibiting dogs, the
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signage indicating the presence of dogs in NCC tenants' apartments, and an
unreported prior incident involving Atkins's dog, fail to establish that a
reasonable jury could determine NCC knew or should have known Atkins
housed a dog with vicious propensities and thus making NCC liable for
plaintiff's unfortunate injuries.
To the extent we have not specifically addressed any of plaintiff's
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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