Niiya v. Grand Cove Condo

A recent unpublished Trial Court opinion, Niiya v Grand Cove Condo, Judge Polifroni ruled that the Condo Association was not liable for a plaintiff’s accident on a State mandated public sidewalk along the Hudson River waterfront. The plaintiff fell on the sidewalk in an area that was recently fixed with new pavers installed by the Condo. Defendant argued that a clear reading of N.J.S.A. 2A:42A-8 evidences the state legislature’s intent to limit liability to property owners with land abutting the state’s coastal waterways as they were required to make this land available to the public. The Defendant also asserted that the New Jersey Department of Environmental Protection (“DEP”) issued a publication further explaining the above-referenced provision: “The law is especially beneficial to 1) property owners on the Hudson River and other waterfronts, where, as DEP regulations require developers to provide sections of a publicly-accessible walkway or bike path . . . [.]” Although there was no case law as to this specific provision, the defendant argued that a clear reading of N.J.S.A. 2A:42A-8 and the above-cited DEP clarification make it clear that the Condo fell within the protected class contemplated by the statute.

Plaintiff argued that N.J.S.A. 2A:42A-8 was drafted to provide limited liability to landowners so that the public can use and enjoy, among other things, property along the state’s waterfronts, not to eliminate sidewalk liability for a property owner who makes active repairs to its property, specifically a walkway consisting of pavers. Plaintiff contended that such a legislative purpose would stand in contrast to well settled law in Stewart and its progeny regarding the responsibilities of landowners who make repairs to their property.

Both sides agreed that the Condo complex was a residential property for the purposes of premises liability per Luchejko v. The City of Hoboken, 207 N.J. 191 (2011) and Stewart v. 104 Wallace Street, 87 N.J. 146 (1981). Here the Condo further asserted that it was immunized from liability under the New Jersey Landowners’ Liability Act (“LLA”), N.J.S.A. 2A:42A-8 and in an unpublished decision the Trial Court agreed.

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