SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2029-17T3

MARYJO CASTELLI,

Plaintiff-Appellant,

v. 

ANTHONY SOLLITTO and

MATILDE SOLLITTO,

Defendants-Respondents.

__________________________

Argued December 12, 2018 – Decided

Before Judges Accurso and Vernoia. 

On appeal from Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-8134-15.

Michael J. Confusione argued the cause for appellant

(Hegge & Confusione, LLC, attorneys; Michael J. 

Confusione, of counsel and on the brief).

John V. Mallon argued the cause for respondents 

(Chasan Lamparello Mallon & Cappuzzo, PC,

attorneys; John V. Mallon, of counsel and on the brief; 

Richard W. Fogarty, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 11, 2019
2

A-2029-17T3

Plaintiff Maryjo Castelli appeals a jury verdict finding no cause for her 

negligence claim against defendants Anthony Sollitto and Matilde Sollitto for 

plaintiff's personal injuries arising from a slip and fall allegedly on defendants'

property. We affirm. 

I.

Plaintiff filed a negligence complaint alleging she suffered personal 

injuries when she slipped and fell on ice on the walkway that led from the 

sidewalk to defendants' two-family home. The trial evidence showed defendants 

were plaintiff's landlords at the home: plaintiff leased the second floor and 

defendants resided on the first floor with their son, Anthony Sollitto, Jr. When 

plaintiff returned to the home at 11:00 p.m. on a cold February evening in 2014,

she reportedly slipped on ice, fell and landed on a walkway near where it abutted 

the sidewalk in front of the home. The walkway extended in a perpendicular 

direction from the sidewalk, elevated three steps, and continued toward the front 

door of the home. Plaintiff sustained injuries and fractures to her right foot and 

leg. Soon after the fall, Anthony Sollitto, Jr., and another individual exited the 

home and assisted plaintiff.

There was conflicting testimony at trial concerning the presence and 

location of the ice plaintiff claimed caused her fall. Plaintiff asserted the ice 
3

A-2029-17T3

was on the walkway between the sidewalk and the stairs. Plaintiff's expert 

testified that the topography of the property and presence of retaining walls on 

the sides of the walkway caused water to accumulate on the walkway between 

the sidewalk and the walkway stairs. He also testified that the pooling water 

would freeze in that location when the temperature fell below freezing. 

Anthony Sollitto, Jr., testified that the only ice he observed in the area 

where plaintiff fell was on the sidewalk and that there was no ice on the 

walkway. His father, defendant Anthony Sollitto, testified he lived at the home 

for thirty-three years, never observed water accumulating on the walkway 

between the sidewalk and stairs and did not see any ice in that area earlier in the 

evening of plaintiff's accident.

Prior to counsels' summations, the court discussed its proposed jury 

charge with counsel.1 In pertinent part, the court's instructions included the 

 

1 The court noted that it had conducted an off-the-record charge conference with 

counsel and had provided counsel with a copy of its proposed jury charge. The 

court summarized the off-the-record discussions and allowed counsel to place 

any arguments concerning the charge on the record. We do not endorse off-therecord jury charge conferences because the Rules require they be on the record,

see R. 1:8-7(a), and off-the-record conferences generally do not permit proper 

appellate review, see Drake v. Human Servs. Dep't, 186 N.J. Super. 532, 537 

(App. Div. 1982) (noting the Appellate Division usually does not consider 

matter not contained in the record below). In any event, the court's off-therecord conference is of no moment here because it is undisputed the parties 
4

A-2029-17T3

model jury instructions on negligence and foreseeability,

2

as well as the 

instructions on the duty of an owner of a multi-family house to tenants and others 

and liability for defects in public streets and sidewalks.3 

Plaintiff requested an instruction that defendants' alleged violation of a 

municipal ordinance requiring repair of hazardous conditions on their property 

could be considered in determining defendants' negligence. Defendants

objected to the charge, and plaintiff's counsel agreed the instruction should not 

be included. The trial judge also noted she could not include the charge because 

 

reviewed and consented to the jury charge the court utilized to instruct the jury,

and were permitted to place their positions concerning the charge on the record. 

In addition, the parties agree there was no objection to the jury charge and that 

we review the charge for plain error. R. 2:10-2.

2

 The court instructed the jury in accordance with Model Jury Charges (Civil),

5.10A, "Negligence And Ordinary Care ̶ General" (approved before 1984), and 

Model Jury Charges (Civil), 5.10B, "Foreseeability (As Affecting Negligence)"

(approved before 1984).

3

 The court instructed the jury in accordance with Model Jury Charges (Civil), 

5.20D, "Duty Of Owner Of Multi-Family House To Tenants And Others"

(approved May 1997), and Model Jury Charges (Civil), 5.20B, "Liability For 

Defects In Public Streets And Sidewalks" (approved Nov. 1999), respectively.

 
5

A-2029-17T3

our Supreme Court's decision in Luchejko v. City of Hoboken, 207 N.J. 191 

(2011), dispensed with the issue.4

Following the summations of counsel, the court instructed the jury in 

accordance with its proposed charge. The court also discussed the schedule and 

directed that the jury "go in the jury room and talk about how you want to 

approach this. Okay? If you all can stay, and you want to get started, and you 

want to be willing to stay later, we will stay as long as you want to stay." The 

judge noted that the jurors had been previously told the court day would end at 

4:30 p.m. The court instructed that the jury "should spend . . . a few minutes 

figuring out what [they] want to do in terms of schedule and then we'll be waiting 

to hear from you. You can . . . ring the buzzer to tell us what time you want to 

stay til." The jury next advised the court that a juror had to leave at 4:30 p.m. 

and that it requested to break for the day. 

One of the jurors, who could not return the following day, was dismissed 

without objection. The court dismissed the remaining seven jurors for the day. 

The court instructed the remaining jurors not to "deliberate until you're all back 

together."

 

4

In Luchejko, the Court reaffirmed that a third party has no private cause of 

action against a homeowner for breach of duties imposed by a municipal 

ordinance. 207 N.J. at 200-01. 
6

A-2029-17T3

The remaining jurors returned the following day. The judge noted that 

when the issue of scheduling had been addressed the previous day, she had not 

gone "through the formality of having [the jury] write anything out," because 

she and the jury "talked about [the scheduling issue] together on the record." 

The judge, however, explained that if the jury needed to discuss any issues with 

the court during its deliberations it "does have to write it out and that's so . . . 

we have a clear record of what is asked and what's answered." The jury later 

sent a note asking "how many votes" it needed for a verdict, and the court 

explained that because a juror had been excused, the jury's verdict must be by a 

vote of six to one. 

The jury continued its deliberations and returned a verdict finding plaintiff 

failed to prove by a preponderance of the evidence that either defendant was 

negligent. The court subsequently entered a final judgment in defendants' favor 

dismissing the complaint. This appeal followed. 

II.

Plaintiff contends the trial court erred by charging the jury on liability for 

injuries caused by defects in a sidewalk abutting residential property and by 

failing to charge the jury on liability based on an alleged violation of a municipal 

ordinance. Plaintiff also contends the court erred when it did not order that the 
7

A-2029-17T3

jury begin its deliberations anew after excusing a juror. Having reviewed the 

record in light of the applicable law, we find plaintiff's claims, each of which is 

raised for the first time on appeal, are bereft of merit.

Proper jury charges are essential to a fair trial, Reynolds v. Gonzalez, 172 N.J. 

266, 288 (2002), and the failure to provide clear and correct jury charges may 

constitute plain error, Das v. Thani, 171 N.J. 518, 527 (2002). Indeed, "[e]rroneous 

instructions are poor candidates for rehabilitation as harmless, and are ordinarily 

presumed to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997). 

However, generally, we "will not disturb a jury's verdict based on a trial court's 

instructional error 'where the charge, considered as a whole, adequately conveys the 

law and is unlikely to confuse or mislead the jury, even though part of the charge,

standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002)

(quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

Here, we find no error in the court's decision to instruct the jury on the 

principles of liability of a residential homeowner for hazardous conditions on an 

abutting sidewalk. Plaintiff's contention the instruction should not have been given 

because there is no evidence that the ice that caused her fall was on the sidewalk is 

belied by the record. Anthony Sollitto, Jr.,'s testimony that the only ice in the area 

where plaintiff fell was located on the sidewalk provided ample evidence supporting 
8

A-2029-17T3

the court's charge to the jury. See Walker v. Costco Wholesale Warehouse, 445 

N.J. Super. 111, 120 (App. Div. 2016) ("In civil matters, the trial court should 

give an instruction that appropriately guides the jury on the legal basis of a 

plaintiff's claim or a defendant's affirmative defense, so long as there is a 

reasonable factual basis in the evidence to support that claim or defense."). 

We are also unpersuaded by plaintiff's contention that the court erred by 

giving the residential sidewalk liability charge because defendants' property is not 

residential. Where there is a "hybrid use [of property,] when the owner's 

occupancy, in terms of time or space, is greater than or equal to the rental 

occupancy, the property shall be considered residential regardless of whether 

the rental space generates a profit." Wasserman v. W.R. Grace & Co., 281 N.J. 

Super. 34, 39 (App. Div. 1995). Under circumstances identical to those 

presented here, in Smith v. Young, we held that a two-floor, owner-occupied,

two-family home was "distinctly residential" for purposes of sidewalk liability. 

300 N.J. Super. 82, 97-98 (App. Div. 1997). We concluded that "[t]he property 

at issue here, being an owner-occupied, two-family home is clearly within the 

exempted category, absolving the owners from the duty to maintain abutting 

sidewalks under currently prevailing standards." Id. at 100; see also Grijalba v. 

Floro, 431 N.J. Super. 57, 69, 71 (App. Div. 2013) (noting that "owner-occupied 
9

A-2029-17T3

two-family homes" are "usually deemed residential" while reasoning two-tothree-family owner-occupied homes are a "gray area" subject to "a case-by-case,

fact-sensitive" analysis).

Here, the undisputed evidence showed defendants' property included a twofamily home in which they resided on the first floor and plaintiff leased the second. 

Thus, contrary to plaintiff's assertion, there was sufficient evidence supporting the 

court's instruction on residential homeowners' liability for hazardous conditions 

existing on a sidewalk abutting their property. See generally, Walker, 445 N.J. 

Super. at 120. 

The court also did not err by failing to expressly explain that the jury's 

application of the law on residential sidewalk liability was conditioned on a 

determination that the ice that caused plaintiff's fall was located on the sidewalk. 

Plaintiff did not object to the instruction which lacked the specificity she now 

claims was required, and we thus can presume she perceived that its omission 

did not result in any prejudice. See, e.g., State v. Singleton, 211 N.J. 157, 182 

(2012) (finding "there is a presumption that [a] charge was not [in] error and 

was unlikely to prejudice the defendant's case" where there was no objection to 

the charge). Moreover, the plain language of the charge otherwise makes clear 

that the principles of residential sidewalk liability apply only if the alleged 
10 A-2029-17T3

hazardous condition exists on the sidewalk. We therefore discern no error in the 

court's charge, let alone plain error. 

Although plaintiff withdrew her request that the court include an 

instruction on liability based on a violation of a municipal ordinance and 

acquiesced to the court's decision not to include the instruction, she argues the 

court's decision not to include the instruction constitutes plain error. The 

argument is without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(1)(E), other than to note that the trial judge correctly determined 

the Court's decision in Luchejko required rejection of plaintiff's initial request 

for the charge. See Luchejko, 207 N.J. at 200-01. 

Plaintiff last argues that the court committed plain error by failing to 

instruct the remaining jurors to deliberate anew following its dismissal of one 

of the original jurors. Plaintiff contends the court violated Rule 1:8-2(d)(1),

which governs juror substitutions and provides that where "a substitution of an 

alternate juror is made, the court shall instruct the jury to recommence 

deliberations and shall give the jury such other supplemental instructions as may 

be appropriate." Plaintiff did not object to the court's directions to the jury 

following the dismissal of the juror and, therefore, we review the issue under 

the plain error standard. R. 2:10-2; Cf. Melendez v. Rodde, 176 N.J. Super. 283,
11 A-2029-17T3

286 (App. Div. 1980) (holding that a trial court's failure to grant a new trial 

motion founded on the court's failure to instruct the jury to recommence 

deliberations after a juror substitution constituted harmless error). 

We find no error in the court's instructions to the jury following the 

removal of the juror. There is no evidence the jury began its deliberations prior 

to the juror being excused. To the contrary, the jury was sent to the jury room 

for the express purpose of determining its schedule for the deliberations and,

after being afforded an opportunity to confer on that issue, advised the court it 

wanted to be dismissed for the day. It was at that time the juror was excused,

and the court appropriately instructed the remaining jurors to return the 

following day for its deliberations. There was no need for the court to advise 

the jury to recommence its deliberations when it returned after the juror was 

excused because the jury had not begun its deliberations in the first instance. 

See State v. Miller, 76 N.J. 392, 429 (1978) ("Until the jury retires to deliberate 

on its verdict, if there is good cause to excuse a juror, no statute or rule of law 

is violated, nor is there any conceivable prejudice to a defendant or the State."). 

We have carefully considered each of plaintiff's contentions. To the 

extent we have not expressly addressed an argument, we have determined it is 
12 A-2029-17T3

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.