SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4319-14T3

MARIA CORTEZ-STARICCO, 

Plaintiff-Appellant,

v.

PIER VILLAGE LWAG, and APPLIED 

PROPERTY MANAGEMENT CO., INC., 

Defendants-Respondents,

and

AJD CONSTRUCTION CO., INC., 

and TWIN INDUSTRIES a/k/a TWIN 

INDUSTRIES, INC.,

Defendants,

and

PIER VILLAGE LWAG, and

APPLIED PROPERTY MANAGEMENT CO., INC.

Defendant/Third-Party Plaintiffs, 

v. 

MAIK COMPANY, 

Third-Party Defendant.

______________________________________

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4319-14T3

MARIE CORTEZ-STARICCO,

Plaintiff-Appellant,

v. 

GREGORY MAIK a/k/a MAIK COMPANY,

Third-Party

Defendant/Respondent.

________________________________________

Submitted October 11, 2016 – Decided

Before Judges Ostrer, Leone, and Vernoia.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket Nos.

L-3412-12 and L-2831-13.

Richard A. Feldman, attorney for appellant.

Smith Mazure Director Wilkins Young & 

Yagerman, P.C., attorney for respondents Pier 

Village LWAG and Applied Property Management 

Co., Inc. (Steven M. Pardalis, on the brief).

Law Office of Michael C. Urciuoli, attorney 

for respondent Gregory Maik a/k/a Maik Company 

(Richard B. Smith, of counsel and on the 

brief).

PER CURIAM

Plaintiff Marie Cortez-Staricco challenges two April 24, 2015 

orders granting summary judgment, one in favor of defendants Pier 

Village LWAG (PV) and Applied Property Management, Co., Inc.

(Applied), and the other in favor of defendant Gregory Maik a/k/a 

Maik Company (Maik). We reverse the orders and remand for trial.

May 22, 2017
3 A-4319-14T3

I.

We derive the following facts from the parties' statements

of undisputed facts and from evidence submitted by the parties in 

connection with the summary judgment motions.

1 

In 2011, plaintiff was forty-three-years old and renting an 

apartment at the Pier Village apartment complex (the Village) in 

Long Branch. On the morning of Tuesday, July 26, 2011, plaintiff 

was rollerblading between 8:00 a.m. and 8:30 a.m. on a sidewalk 

at the Village near the pool. Plaintiff testified the sidewalk 

 

1 The parties impeded judicial review of the summary judgment 

motions by failing to follow Rule 4:46-2. The Rule requires the 

moving party to file a "statement of each material fact as to 

which the movant contends there is no genuine issue," requires the 

responding party to "file a responding statement either admitting 

or disputing each of the facts in the movant's statement," and 

permits the responding party to list additional material facts, 

to which the moving party may respond. R. 4:46-2(a), (b); see R.

4:46-5(a). Defendants filed inadequate statements, plaintiff 

filed her own statement, and no one admitted or denied the facts 

of anyone else's statement.

"Summary judgment requirements, however, are not optional." 

Lyons v. Township of Wayne, 185 N.J. 426, 435 (2005). "A party's 

failure to comply with the requirements of Rule 4:46-2 can result 

in a considerable waste of judicial time and resources when trial 

and appellate courts are forced to search for factual issues by 

sifting through voluminous and confusing records — work that should 

be performed by the parties." Id. at 435-36. Our Supreme Court 

expects "parties to comply with the dictates of Rule 4:46-2(b)," 

and "will not continue to condone refusal or failure to comply." 

Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568 n.2 (2009). 

Although we have been able to garner sufficient facts from the 

record for our review despite the parties' failures to follow Rule

4:46-2, those failures are not condoned and should not be repeated. 
4 A-4319-14T3

was "completely dry," and there was no mulch or debris in the 

area. While rollerblading, the sprinkler system activated with 

no warning, and sprayed plaintiff with mulch, water, and other 

debris, jamming mulch in the wheels of her rollerblades. Plaintiff 

fell and broke her right wrist. She had two surgeries to repair 

the damage. 

Plaintiff initially sued PV. She amended her complaint to 

add Applied, a property management company which supplied on-site 

maintenance staff for PV. PV and Applied were principally owned 

and operated by the same company, and we consider them part of a 

single entity.

2

Later, plaintiff separately sued Maik, an outside contractor 

hired by Applied to perform maintenance on the sprinkler system 

at the Village, as well as at other properties Applied managed.

The two suits were consolidated.3 

 

2 PV and Applied jointly filed a summary judgment motion. They 

filed joint briefs and were represented by the same counsel in the 

summary judgment proceeding and on appeal. None of the parties 

argues PV and Applied should be treated separately. 

3 Plaintiff earlier sued Twin Industries, Inc. (Twin), and AJD 

Construction Co., Inc. (AJD). Twin was a landscaping/sprinkler 

company mistakenly believed to be responsible for the maintenance 

of the sprinkler system at the Village. AJD was the commercial 

construction company that designed and built the Village. 

Plaintiff has voluntarily dismissed her claims against Twin and 

AJD.
5 A-4319-14T3

Maik would perform a start-up of the sprinkler system at the 

Village every April and a shut-down of the system every October. 

Additionally, Maik would come to the Village when Applied's 

maintenance supervisor, Leon Brach, called him to make repairs or 

perform maintenance on the sprinkler system. 

The Village is divided into "Phase I" and "Phase II" areas. 

This incident occurred near the pool in the Phase II area. Phase 

II is serviced by an underground irrigation sprinkler system, 

controlled by a single digital control box in a locked pump room. 

Brach and members of his maintenance team had the keys to the pump 

room.

4 

In April 2011, Maik set the control box timer to run the 

sprinkler system between midnight and 4:30 a.m. every Monday, 

Wednesday, and Friday. Maik testified the timer was never reset 

throughout the season. Maik testified that in order for the 

sprinkler system to operate on a day outside of its normal 

schedule, the system would need to be manually run by someone who 

had access to the digital control box. Brach and other members 

of the maintenance staff knew how to manually override the timer 

so as to run the sprinkler system when necessary. 

 

4 Plaintiff notes that the security guard at the Village also had 

a key, but no party alleges that the security guard had any 

involvement with the sprinkler system. 
6 A-4319-14T3

Brach testified that "[o]nly if we come and test the system," 

or if Maik was repairing the system, would the sprinkler system 

be "programmed to go on at any time after four o'clock in the 

morning." Anthony Lazardi, a member of Brach's maintenance team, 

testified "[s]omeone had to have turned it on, because there is 

no other way" for it to have come on at or after 8:00 a.m. Maik 

testified "if the system was run, other than Monday, Wednesday and 

Friday from midnight to 4:30 in the morning, . . . it would have 

to be activated manually."

5 

Plaintiff presented a report from Ronald L. Saxon, a licensed 

professional engineer who offered expert opinions concerning the 

possible causes of the accident. Saxon noted "the discovery 

presented does not indicate clearly why the sprinkler started up 

during the day on July 26th," but added:

What is known is that the sprinkler could have 

started because the timer had not been set 

properly, e.g. by Mr. Maik when he serviced 

the system on [July] the 6th; because the 

timer had been re-set by [PV] for unknown 

reasons; because Maik had been at the site on 

the 26th and manually operating the system; 

or because [PV] had been manually operating 

the system for diagnostic purposes.

 

5 Maik said the system also could run if there had been a disruption

in the control valve, but added there was no disruption in the 

control value in 2011. 
7 A-4319-14T3

PV/Applied filed a motion for summary judgment. Maik filed 

a separate motion for summary judgment. At a hearing on April 24, 

2015, the trial court ruled it was "constrained to grant the 

motions for summary judgment." First, the court found the need 

for expert testimony in the case would be "paramount." The court 

acknowledged that a jury could "derive these inferences [of 

negligence] from the facts." However, the court believed 

"ultimately the facts have to be presented to the Jury through an 

expert because this type of [complex] system in my view is 

something that only an expert can render opinions on as to the 

issue of negligence in this case." Second, the court concluded 

"plaintiff on this record will [not] be able to show that one 

party or the other had exclusive control over" the sprinkler 

system. Plaintiff appeals on both issues. 

II.

"[W]e review the trial court's grant of summary judgment de 

novo under the same standard as the trial court." Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016). "The trial court's conclusions of law and application of 

the law to the facts warrant no deference from a reviewing court." 

W.J.A. v. D.A., 210 N.J. 229, 238 (2012).

Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file,
8 A-4319-14T3

together with affidavits, if any, show that there is no genuine 

issue of 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). We must "consider whether the competent evidential materials 

presented, when viewed in the light most favorable to the nonmoving party, are sufficient to permit a rational factfinder to 

resolve the alleged disputed issue in favor of the non-moving 

party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). We "must accept as true all evidence which supports the 

position of the party defending against the motion and must accord 

[that party] the benefit of all legitimate inferences which can 

be deduced therefrom." Id. at 535. We must hew to that standard 

of review.

III.

Plaintiff argues summary judgment should not have been 

granted to defendants because the doctrine of res ipsa loquitur 

applied. "When applicable, the doctrine of res ipsa loquitur

enables the plaintiff to make out a prima facie case[,]" and 

"ordinarily assures the plaintiff [her] case . . . will survive 

summary judgment." Jerista v. Murray, 185 N.J. 175, 191, 193 

(2005). 

"Res ipsa loquitur, Latin for 'the thing speaks for itself,'" 

"allows the factfinder to draw an inference of negligence against 
9 A-4319-14T3

the party who was in exclusive control of the object or means that 

caused the accident." Id. at 191–92. "Res ipsa loquitur is not 

a theory of liability; rather it is an evidentiary rule that 

governs the adequacy of evidence in some negligence cases." 

Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 400 (2005)

(citation omitted). In order to present a case of res ipsa 

loquitur, the proponent must show "(a) the occurrence itself 

ordinarily bespeaks negligence; (b) the instrumentality was within 

the defendant's exclusive control; and (c) there is no indication 

in the circumstances that the injury was the result of the 

plaintiff's own voluntary act or neglect." Khan v. Singh, 200 

N.J. 82, 91 (2009) (citation omitted). 

Here, it is undisputed the injury was not the result of 

plaintiff's voluntary act or neglect. However, the trial court 

found the other two prerequisites were not met. 

A.

"Whether an accident bespeaks negligence 'depends on the 

balance of probabilities.'" Jerista, supra, 185 N.J. at 192 

(quoting Buckelew v. Grossbard, 87 N.J. 512, 526 (1981)). Thus, 

the doctrine is available to a plaintiff "if it is more probable 

than not that the defendant has been negligent." Myrlak v. Port 

Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999). "[A] plaintiff 

need not exclude all other possible causes of an accident as a 
10 A-4319-14T3

condition of entitlement to the doctrine, provided he can show 

that it is more probable than not that the defendant's negligence 

was a proximate cause of the mishap." Brown v. Racquet Club of 

Bricktown, 95 N.J. 280, 291-92 (1984). 

The trial court found res ipsa loquitur was inapplicable 

because the sprinkler system was a complex piece of machinery

which required expert testimony to detail the workings of the 

system. However, our Supreme Court has "disagree[d] with [the] 

sweeping suggestion . . . that in almost all complex 

instrumentality cases a res ipsa inference will be conditioned on 

the production of the expert testimony." Jerista, supra, 185 N.J.

at 197. "The question is not whether the instrumentality at issue 

is complex or simple, but whether based on common knowledge the 

balance of probabilities favors negligence, thus rendering fair 

the drawing of a res ipsa inference." Id. at 199.

Although the inner workings and mechanisms of a sprinkler 

system may be outside the ken of the average juror, here it was 

undisputed that the Village sprinkler system should not have turned 

on between 8:00 a.m. and 8:30 a.m. on a Tuesday. Our Supreme 

Court faced an analogous situation in Jerista. There, it was 

conceded that while the plaintiff was entering a supermarket, the 

automatic door suddenly closed, striking and injuring her. Id.

at 182. The Court considered whether a jury could "infer, based 
11 A-4319-14T3

on common knowledge, that automatic doors ordinarily do not 

malfunction unless negligently maintained by the store owner or 

whether the res ipsa reference is preconditioned on the expert 

testimony first explaining the door's mechanics." Id. at 180. 

The Court held "[a]n automatic door may be a highly sophisticated 

piece of machinery," but "an automatic door that closes onto and 

injures a customer entering a supermarket is an occurrence 

bespeaking negligence that falls within jurors' common knowledge," 

so "expert testimony is not mandated" and "a res ipsa inference" 

is justified. Id. at 197, 200. 

Like the supermarket door in Jerista, the sprinkler system 

at the Village concededly activated when it was not supposed to. 

Based on the defendants' own evidence — the testimony of Maik, 

Brach, and Brach's staff — it is undisputed that the sprinkler 

system could not have run at the inappropriate time of Tuesday 

between 8:00 a.m. and 8:30 a.m. unless the system was manually 

overridden by one of the defendants.6 

Moreover, Mark Hindenach, another member of Brach's 

maintenance staff, testified the sprinklers were "never" run 

during the day because there was "so much traffic, so many people" 

 

6 No party claimed at the summary judgment hearing that the 

sprinkler system turned on because it malfunctioned or was 

defectively manufactured or installed. 
12 A-4319-14T3

then and the sprinklers would "interfere with people walking and 

whatever." Given that testimony, and the undisputed evidence the 

sprinklers should not have been running on a Tuesday between 8:00

a.m. and 8:30 a.m., a jury could find manually running the 

sprinkler system at that busy time of day so it sprays tenants 

walking, running, or rollerblading through the area "probably does 

not" happen without negligence. Id. at 197. "That conclusion can 

be reached based on common knowledge without resort to expert 

testimony. A jury does not need an expert to tell it what it 

already knows." Ibid.7 

In any event, plaintiff's expert reached a similar conclusion 

in his report. Excluding other possible causes, and discounting 

the possibility that the timer had been mis-set or reset, Saxon 

concluded either PV/Applied or Maik had manually overridden the 

system in a negligent manner contributing to plaintiff's injuries. 

Although the trial court stressed Saxon could not say which 

defendant was responsible, that does not preclude application of 

res ipsa loquitur. See Rose v. Port of N.Y. Auth., 61 N.J. 129, 

 

7 PV/Applied argues an expert was required to establish a standard 

of care. Even assuming standard of care testimony is generally 

required regarding sprinkler operation, "experts are not needed 

to establish professional standards of care where either the 

doctrine of res ipsa loquitur or the doctrine of common knowledge 

applies." Estate of Chin by Chin v. St. Barnabas Med. Ctr., 312 

N.J. Super. 81, 92-93 (App. Div. 1998), aff’d, 160 N.J. 454, 469

(1999). 
13 A-4319-14T3

135-37 (1972) (applying res ipsa loquitur to the defendants even 

though the plaintiff's expert could not pinpoint the actual reason 

the automatic doors closed but instead "'suggest[ed] several 

things that might have gone wrong'"); see Jerista, supra, 185 N.J.

at 193-95 (relying on Rose even though Rose's "expert engineering 

testimony did not answer the question of why the automatic door 

malfunctioned"). "To be sure, [more definitive] expert testimony 

in this case might have been helpful, but it was not essential to 

plaintiff's case." Mayer v. Once Upon A Rose, Inc., 429 N.J. 

Super. 365, 377 (App. Div. 2013). 

Regardless, viewing the facts in the light most favorable to 

plaintiff, we find the "accident bespeaks negligence." Jerista, 

supra, 185 N.J. at 192. "The [res ipsa loquitur] doctrine does 

not shift the burden of persuasion to the defendant. Rather, what

is required of defendant is an explanation, not exculpation. It 

shifts to the defendant the obligation to explain the causative 

circumstances because of defendant's superior knowledge." 

Szalontai, supra, 183 N.J. at 400 (quoting Myrlak, supra, 157 N.J.

at 95-96). Here, defendants offered no other explanation as to 

why the sprinkler system turned on at the time of the injury other 

than one of the defendants turned it on. See Jerista, supra, 185 

N.J. at 197 (a defendant "must come forward to rebut the 

inference"). Thus, "the circumstances establish 'that it is more 
14 A-4319-14T3

probable than not that the defendant's negligence was a proximate 

cause of the mishap.'" Id. at 192 (quoting Brown, supra, 95 N.J.

at 287, 291-92).8

B.

Defendants next argue res ipsa loquitur is inapplicable 

because plaintiff cannot specify which of the defendants had 

exclusive control over the sprinkler system at the time of her 

injury. "The doctrine of res ipsa loquitur, however, has been 

applied in cases involving multiple defendants." Myrlak, supra, 

157 N.J. at 100. "[T]he exclusive control requirement has not 

been interpreted as limiting application of the doctrine only to 

those situations involving a single defendant." Apuzzio v. J. 

Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002) 

(allowing plaintiffs struck by a truck's tires to invoke res ipsa 

loquitur against both the company which owned the truck and the 

company which serviced the tires four days before). "The word 

'exclusive' when used to define the nature of the control necessary 

to invoke the doctrine of res ipsa loquitur does not connote that 

such control must be several and the defendant singular and never 

plural." Ibid. (quoting Meny v. Carlson, 6 N.J. 82, 93 (1950) 

 

8 Plaintiff asserts her expert's report cannot be used against her 

because she produced the report under the proviso that it was not 

an adoptive admission. We find summary judgment was inappropriate 

even considering the expert's report.
15 A-4319-14T3

(allowing a plaintiff injured by the collapse of a scaffold to 

invoke res ipsa loquitur against both the company which erected 

and maintained the scaffold and the company using and maintaining 

the scaffold)). "Control might have been in either or both of the 

defendants; in either case the doctrine of res ipsa loquitur was 

applicable." Ibid. (quoting Meny, supra, 6 N.J. at 93). 

Thus, we held a plaintiff pinned by an elevator door could 

invoke res ipsa loquitur against both the building owner and the 

maintenance company which serviced the elevator earlier that day. 

Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 669-72 (App.

Div. 1993). We ruled the maintenance company's "connection with 

the elevator which caused plaintiff's injury was sufficiently 

immediate and direct to support a finding that it had 'control'

of that elevator, and thus the trial court correctly concluded 

that the doctrine of res ipsa loquitur was applicable." Id. at

671-72; see also Smith v. Claude Neon Lights, Inc., 110 N.J.L.

326, 330-32 (E. & A. 1933) (finding "sufficient evidence of partial 

possession and control . . . to warrant the application of the 

doctrine of res ipsa loquitur against the Light Company [which 

maintained a sign on a building roof], as well as against the 

Trust Company" which owned the building).

This case resembles Allendorf, as plaintiff has sued both the 

premises owner, PV/Allied, and Maik, who recently maintained the 
16 A-4319-14T3

sprinkler system. Moreover, there was sufficient evidence to 

allow a jury to find control of the system "might have been in 

either or both of the defendants." Meny, supra, 6 N.J. at 93. 

PV/Applied does not contest it generally had control over the 

system both on and before the day plaintiff was injured.9 Maik 

does not dispute that when he services the system he has control 

over it. Finally, plaintiff proffered evidence supporting an 

inference that Maik serviced the system on or immediately before 

the day of plaintiff's injury. 

Plaintiff made clear at the summary judgment hearing her 

claim "against Maik is that he was there on July 26 and he was 

involved in the activation of the system."10 Although Maik's 

 

9 Indeed, "[a]n owner of a building has a non-delegable duty to 

exercise reasonable care for the safety of tenants and persons 

using the premises at his invitation. That the owner contracts 

for maintenance of [the equipment on the premises] does not relieve 

it of that duty[.]" Rosenberg v. Otis Elevator Co., 366 N.J. 

Super. 292, 303-05 (App. Div. 2004) (citation omitted) (upholding 

application of res ipsa loquitur against both the building owner 

and the company which manufactured and maintained an elevator 

which dropped suddenly). "Where . . . the defendant's duty of 

care with respect to the injuring agency is (as to the plaintiff) 

non-delegable, the fact that control may have been in an 

independent contractor will not preclude the application of the 

[res ipsa loquitur] doctrine." 2 Harper & James, The Law of Torts

§ 19.7 at 1087 (1956); see Prosser & Keeton on Torts 250 (5th ed. 

1984). 

10 Plaintiff's counsel conceded it would be "pure speculation" to 

suggest "Maik did something two weeks earlier or three weeks 

earlier to have caused the sprinkler to fire two or three weeks 

later." 
17 A-4319-14T3

appointment book does not list any work at the Village on July 26, 

plaintiff argued Maik's billing system and his bookkeeping 

supported a reasonable inference that Maik was at the Village on 

July 26. Maik sent an invoice to Applied dated July 28 for repairs 

on the sprinkler system near the pool area of Phase II at the 

Village. Maik testified he typically bills two to three days 

after the work is performed, and never bills beforehand. Thus, a 

jury could reasonably infer Maik was at the Village on July 25 or 

26, accessed the control panel, and manually overrode the system 

while repairing the continuing problems in the pool area, causing 

plaintiff's injury. Therefore, "[c]ontrol might have been in 

either or both of the defendants; in either case the doctrine of 

res ipsa loquitur was applicable." Meny, supra, 6 N.J. at 93.11

Our decision is based on our standard of review and on the 

unusual agreement of the witnesses for PV/Applied and Maik that 

the sprinkler should not have turned on at the time plaintiff was 

 

11 Thus, we need not address whether Maik's regular, twelve—year, 

multi-location relationship with Applied made him its servant. 

See Bornstein v. Metro. Bottling Co., 26 N.J. 263, 272 (1958) 

(finding res ipsa loquitur can apply if the instrumentality is 

"under the management of the defendant or his servants"); see also

Maciag v. Strato Med. Corp., 274 N.J. Super. 447, 461 (App. Div. 

1994) (finding res ipsa loquitur can apply if the instrumentality 

was under "'[t]he control at one time or another, of . . . [the] 

defendant or of his employees or temporary servants'") (citation 

omitted).
18 A-4319-14T3

injured, and could only have been turned on manually by one of the 

defendants. "Accepting plaintiff['s] version of the [sprinkler] 

incident and the causation described by [Maik and PV/Applied's] 

employees, summary judgment should not have been granted to 

defendants on the record before the court." Rosenberg, supra, 366 

N.J. Super. at 305. Whether plaintiff's claims should prevail is 

for the jury.12

"Once res ipsa loquitur is established, the case should go 

to the jury unless defendant's countervailing proof is so strong 

as to admit of no reasonable doubt as to the absence of 

negligence." Szalontai, supra, 183 N.J. at 398 (quoting Brown, 

supra, 95 N.J. at 288-89). Here, neither PV/Applied nor Maik have 

yet offered such strong evidence as to prevent plaintiff's case 

from going to a jury.13 Therefore, we reverse the orders granting 

 

12 Maik testified that his last visit to the Village was on July 

13, 2011, and that he was not at the Village on July 26. Brach 

and the other staff of PV/Applied testified they had not manually 

operated the sprinkler system on July 26, and insisted a staff 

member would not have done so without a second person near the 

sprinklers to observe their operation. While we must "accept as 

true all the evidence which supports the position of the party 

defending against the motion and must accord [that party] the 

benefit of all legitimate inferences which can be deduced 

therefrom," Brill, supra, 142 N.J. at 535, the jury will be free 

to consider any such contrary testimony at trial.

13 Defendants' remaining arguments lack sufficient merit to warrant 

discussion. R. 2:11-3(e)(1)(E).
19 A-4319-14T3

summary judgment and remand for trial. We do not retain 

jurisdiction. 

Reversed and remanded.