SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0133-23 

DONNA MCGRATH, 

 Plaintiff-Appellant, 

v.

PETER VEZZOSI, and 

CONCEPCION VEZZOSI, 

 Defendants-Respondents. 

__________________________ 

Argued June 4, 2024 – Decided June 15, 2024 

Before Judges Enright and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-8755-20.

Timothy J. Foley argued the cause for appellant 

(Andrew S. Maze, PC, attorneys; Andrew S. Maze, of 

counsel and on the briefs; Timothy J. Foley, on the

briefs). 

Glenn T. Dyer argued the cause for respondents (Dyer 

& Peterson, P.C., attorneys; Nathan C. Orr, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0133-23

In this premises liability matter, plaintiff Donna McGrath appeals from 

the July 7, 2023 order granting summary judgment to defendants Peter and 

Concepcion Vezzosi. Plaintiff also challenges the August 11, 2023 order 

denying her motion to reconsider the July 7 order. We affirm both orders. 

I.

 On December 28, 2018, plaintiff went to defendants' two-family home in 

Carteret (Property) to visit her friend, Antoinette Vitelle. Vitelle rented 

defendants' second-floor apartment on the Property, and plaintiff had visited her 

there on prior occasions. 

As plaintiff exited Vitelle's apartment later that evening, a motion sensor 

light turned on, and plaintiff noticed it was snowing. While holding onto the 

railing of the apartment's exterior rear stairway, plaintiff descended the stairs. 

She fell on the last step before the landing, injuring her ankle. 

 In December 2020, plaintiff sued defendants for negligence. She alleged 

they carelessly allowed hazardous conditions to exist on the Property's exterior 

stairway, and the conditions caused her to fall and injure herself. After 

defendants timely answered the complaint, the parties engaged in discovery. 

During plaintiff's deposition, she testified that two months prior to her 

December 2018 fall at the Property, she fell on the same set of stairs, injuring 
3 A-0133-23

her wrist. She recalled that when she descended the rear exterior stairs from 

Vitelle's apartment in October 2018, "[a]ll of the steps were normally spaced 

between them, and then the last one was significantly shorter than the other 

ones," causing her to fall on a "[l]anding at the bottom of the stairs." 

 Regarding the December 2018 incident, plaintiff testified she held onto 

the railing and descended the exterior stairway from Vitelle's apartment but 

because of her previous fall, she "was actually extra mindful of stepping" and 

"was very slow and careful to walk down the stairs." Moreover, she stated "[t]he 

problem was that there . . . was about a quarter of an inch of sleet and ice on the 

platform on the landing" because it was snowing. Plaintiff testified the motion 

detector on the stairway activated the light on the stairs so she "could see the 

snow and everything." Additionally, she stated she "mindfully stepped down 

and carefully stepped down onto the platform. However, [her] right leg slipped 

out from under [her] and inverted inward and [she] broke [her] ankle." 

 Vitelle also was deposed during discovery. She testified she lived at the 

same apartment on the Property for approximately twenty years. She had not 

fallen on the exterior stairs from her apartment but "almost" tripped on them 

"early on" in her tenancy. Vitelle stated she was aware certain maintenance was 

performed on the deck and stairs some seven years prior to her deposition. 
4 A-0133-23

Vitelle further testified that approximately four years before she was deposed, 

she notified Peter1 there was a "spongy" step on the staircase. She did not check 

to see if he repaired it thereafter because Peter was "good with repairing." When 

asked if plaintiff ever told Vitelle "how the accident occurred," Vitelle 

answered, "[j]ust very basic, about tripping on the stairs, and it was slippery[]

because I think it had started to snow." 

 In February 2023, Charles J. Witczak III, P.E. issued an expert report on 

plaintiff's behalf. Witczak opined that on December 28, 2018, "defendant[s] 

should have anticipated the possibility of the occurrence of snowfall and taken 

the appropriate measures to insure the safe surface conditions of [the Property's 

exterior stairway]." Witczak also stated, "defendant[s] failed to protect the 

safety of pedestrians utilizing the walkway in question by allowing the 

hazardous condition created by icy surfaces present along . . . plaintiff's path of 

travel, which was the cause of h[er] accident." 

Additionally, Witczak opined the stair railings, tread depths and tread 

slopes on the Property's exterior stairs violated the 2015 International 

Residential Code (IRC), a code that sets standards for exterior stairs. Witczak 

1

 Because defendants share the same surname, we use their first names. We 

intend no disrespect in doing so. 
5 A-0133-23

specifically found "[t]he riser height difference between the lower step and the 

wooden deck where the accident took place . . . significantly exceed[ed] the 

allowable standard and was a violation [of] the [IRC]." Further, according to 

Witczak, "[h]andrails were found on both sides of the stairway until it reached 

the second tread above the landing in question. At that point[,] the right[ ]side 

railing . . . was interrupted by a . . . support column while the railing on the left 

side terminated completely." Witczak concluded the "numerous hazardous 

defects contained within the stairway[,] which w[ere] made even more 

dangerous by the slippery surface conditions of the walkway area at the location 

of . . . plaintiff's fall[,] were the cause of [plaintiff's] accident." 

 Witczak issued a supplemental report in May 2023. He reiterated the 2015 

IRC "applie[d] to the accident[] suffered by . . . plaintiff," noting this code "was 

in effect at the time of . . . plaintiff's accident," but in any event, "[s]tairway 

requirements relative to stair treads and risers contained in CABO[2] 1991 [we]re 

the same as in the 2015 IRC." He did not state the CABO 1991 was the same as 

the 2015 IRC relative to requirements for handrails. 

2

 "CABO" is the acronym for Council of American Building Officials. 
6 A-0133-23

After opining "it [wa]s appropriate to evaluate an accident site relative to 

the codes that [we]re in place at the time of the particular accident to determine 

if the location [wa]s safe or not," Witczak concluded defendants' "decision to 

disregard applicable building standards resulted in the hazardous condition that 

caused the accident suffered by . . . plaintiff." He further stated: 

plaintiff traveled down a set of stairs that did not meet 

code relative to slopes or riser heights[,] which . . . 

would result in a pedestrian losing their balance as they 

traveled down same. This condition was then 

compounded by the fact that the handrail did not allow 

for adequate grasping capabilities[,] which would be 

the mechanism that a pedestrian would use to regain 

their balance once experiencing the initial loss of

balance associated with the nonconforming stairway 

features. These hazardous conditions then culminated 

with . . . plaintiff stepping onto a non-maintained 

slippery surface that ultimately resulted in her fall. 

 . . . . 

Based on these findings, it remains my opinion 

within a reasonable degree of engineering certainty that 

the numerous hazardous defects contained within the

stairway[,] which was made even more dangerous by 

the slippery surface conditions of the walkway area at 

the location of . . . plaintiff's fall[,] were the cause of 

the accident suffered by [plaintiff] on December 28, 

2018. 

In June 2023, defendants moved for summary judgment. They contended 

Witczak's reports were inconsistent with plaintiff's deposition testimony as to 
7 A-0133-23

the cause of her fall. Defendants also argued Witczak utilized the wrong code 

to assess the exterior stairway from Vitelle's apartment because the Property was 

renovated well before 2015. In fact, they contended that in or around 1991, with 

the assistance of a county Rental Rehabilitation Program, a new rear deck and 

exterior staircase was constructed on the Property. 

Following his review of Witczak's reports and after hearing argument on 

July 7, 2023, the judge orally granted defendants' motion. Initially, the judge 

found that based on the "ongoing storm rule" announced by our Supreme Court 

in Pareja v. Princeton International Properties, 246 N.J. 546 (2021), plaintiff 

failed to establish defendants owed her a duty of care to ensure their exterior 

rear stairs were free of snow and ice when she fell on December 28, 2018. 

Therefore, the judge concluded, "the part of . . . Witczak's report that trie[d] to 

create some duty of defendants based on snow and ice, that's out." 

Turning to Witczak's conclusion that alleged defects in the Property's 

exterior stairway led to plaintiff's fall, the judge found Witczak applied "the 

wrong code" in his analysis. The judge reasoned the Property's exterior stairway

"was built in 1990/1991," whereas Witczak "appl[ied] the code adopted in 

2015." The judge also found that even if there was a major renovation to the 

Property's exterior rear stairway in 2014, as reflected in Vitelle's deposition 
8 A-0133-23

testimony, "the old code" applied, rather than the code subsequently adopted in 

2015. He explained, "[t]here is zero statutory or case law authority that imposes 

a duty on property owners to constantly renovate their properties every time 

there[ is] a new building code," and new building codes have "always been 

applie[d] prospectively." 

 Next, the judge rejected Witczak's conclusions from the May 2023 report, 

noting the expert determined: 

the typical person going down the stairs is[ not] 

concentrating step after step. They develop a rhythm 

based on a consistent size for each step. And somebody 

going down a flight of stairs and the last step is a little 

short, they could trip because of that, and they could

fall because of that, . . . because their foot would hit the 

ground quicker than they expected, but that's not what 

happened here. (Emphasis added). 

The judge further observed: 

plaintiff testified . . . she was aware that th[e] bottom 

step was a short step. In her testimony, she said, ["

]

I 

was very careful. When I got to the bottom landing, the 

bottom step, I was actually extra mindful of 

stepping . . . and so I was walking slowly and I stepped 

down slowly.["

]

 

Additionally, the judge noted plaintiff testified at her deposition: 

the problem was that . . . it was snowing and there was 

a quarter of an inch of sleet and ice on the platform and 

the landing, and[] as I was coming down, . . . the motion 

detector light turned on. I could see the snow and 
9 A-0133-23

everything, and I mindfully stepped down and carefully 

stepped on the platform[. H]owever, my right leg 

slipped out from under me and inverted inward and 

broke my ankle. 

Thus, the judge concluded plaintiff "did[ not] slip because of the design 

of the staircase. She slipped because of the snow, and pursuant to Pareja[,] . . . 

the landlord[s] had no duty at that time to remove the snow under the continuing 

storm rule." The judge entered a conforming order that day, granting defendants 

summary judgment. 

Plaintiff moved for reconsideration of the July 7 order. The judge denied 

the motion on August 11, 2023. In a written opinion accompanying the August 

11 order, the judge stated: 

[P]laintiff's expert alleged negligence of . . . 

defendant[s] for two reasons[: (]1) the design of the 

staircase was faulty and should have been corrected

by . . . defendant landlord[s;] and [(]2) there was a duty 

on the part of . . . defendant[s] to keep the stairs clear 

of snow. Since . . . plaintiff testified it was snowing at 

the time of the fall, . . . [defendants] had no duty to clear 

the stairs of snow[,] pursuant to the continuing storm 

rule as set forth . . . in Pareja[,] . . . and the vague 

language of the Carteret Property Maintenance Code 

was insufficient to impose such a duty on [defendants]. 

 As to the design of the staircase, . . . plaintiff's 

expert claimed . . . the last step would likely cause a fall 

because persons descending a flight of stairs develop a 

rhythm that is interrupted by a change in the height of 

a stair and would cause a loss in balance. However, this 
10 A-0133-23

theory of causation is flatly contradicted by . . .

plaintiff's deposition testimony that she "was aware" of 

the short step, so she "was very slow and careful to walk 

down the stairs." . . . [P]laintiff also testified that "[t]he 

problem was that . . . it was snowing, and there was 

about a quarter of an inch of sleet and ice on the 

platform on the landing." Thus, based [on] this 

testimony of . . . plaintiff, which her expert ignores in 

his reports, . . . her fall had nothing to do with the 

design of the stairs, which renders that portion of the 

opinion to be a net opinion. Because . . . plaintiff 

clearly testifie[d] the fall was caused by snow and ice 

on the landing (which was "the problem[,]" in her 

words), liability is barred by the continuing storm rule. 

Since there is no liability under any theory of 

causation set for[t]h by . . . [plaintiff]'s expert, there is 

no basis for an analysis as to comparative negligence. 

II. 

 On appeal, plaintiff argues: (1) the July 7 and August 11, 2023 orders 

"must be reversed because [plaintiff] produced sufficient evidence to present the 

issue of proximate causation to a jury"; (2) "Pareja . . . does not bar plaintiff's 

claim" because "Pareja is unconstitutional and should be vacated"; (3) 

alternatively, "Pareja should be limited" in its application, but if Pareja stands 

and applies here, her "case falls within [Pareja's] exception for pre-existing 

conditions"; (4) "the denial of reconsideration should be reversed because taking 

proximate cause from the jury was palpably incorrect"; and (5) "defendants' 
11 A-0133-23

argument that plaintiff's expert relied on the wrong building code is immaterial." 

These arguments fail. 

We review orders granting summary judgment de novo and apply the same 

standard as the trial court. Lee v. Brown, 232 N.J. 114, 126-27 (2018). 

However, we review with deference a trial court's denial of a motion for 

reconsideration under Rule 4:49-2, and do not disturb the denial absent an abuse 

of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). A 

dissatisfied litigant's desire to reargue an unsuccessful motion does not warrant 

reconsideration. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 

2010). 

"[S]ummary judgment will be granted if there is no genuine issue of 

material fact and 'the moving party is entitled to a judgment or order as a matter 

of law.'" Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente 

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

(2016)). To determine whether there are genuine issues of material fact, we 

"consider whether the competent evidential materials presented, when viewed 

in the light most favorable to the non-moving party, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 
12 A-0133-23

"An issue of material fact is 'genuine only if, considering the burden of 

persuasion at trial, the evidence submitted by the parties on the motion, together 

with all legitimate inferences therefrom favoring the non-moving party, would 

require submission of the issue to the trier of fact.'" Grande v. Saint Clare's 

Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 

(2014)). 

A plaintiff in a negligence action, including a negligence action against a 

homeowner, "must establish four elements: '(1) a duty of care[;] (2) a breach of 

that duty[;] (3) proximate cause[;] and (4) actual damages.'" Townsend v. 

Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 

584 (2008)). "A 'plaintiff bears the burden of establishing those elements by 

some competent proof.'" Ibid. (quoting Davis v. Brickman Landscaping, Ltd., 

219 N.J. 395, 406 (2014)). 

With respect to commercial landowners, their duty to maintain safe 

premises extends to any area in which invitees are expected to go and requires 

them to protect an invitee from "known or reasonably discoverable dangers." 

Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 305 (App. Div. 2000) 

(quoting Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999)). 

However, pertinent to this appeal, our Supreme Court recently adopted the 
13 A-0133-23

ongoing storm rule, holding "commercial landowners do not have a duty to 

remove the accumulation of snow and ice until the conclusion of the storm." 

Pareja, 246 N.J. at 558.3 The Court identified two categorical exceptions to the 

ongoing storm rule: (1) if the commercial landowner exacerbates the risk of 

harm; or (2) when there was a pre-existing risk of harm on the premises prior to 

the storm. Id. at 559. 

In any negligence action, "[t]he admission or exclusion of expert 

testimony is committed to the sound discretion of the trial court." Townsend, 

221 N.J. at 52. Thus, "we apply . . . [a] deferential approach to a trial court's 

decision to admit expert testimony, reviewing it against an abuse of discretion 

standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 

(2011). 

"When a trial court determines the admissibility of expert testimony, 

N.J.R.E. 702 and N.J.R.E. 703 frame its analysis." Townsend, 221 N.J. at 53. 

The former rule establishes when expert testimony is permissible and requires 

3

 In Pareja, the plaintiff slipped, fell, and injured himself on a driveway apron, 

which was private property owned by the defendant, Princeton International. Id. 

at 548. In the early morning hours prior to the incident, freezing rain, light rain, 

and sleet had fallen. Id. at 549. At the time of plaintiff's injury, precipitation 

was ongoing. Ibid. 
14 A-0133-23

the expert be qualified in their respective field. The latter rule requires "expert 

opinion be grounded in 'facts or data derived from (1) the expert's personal 

observations, or (2) evidence admitted at the trial, or (3) data relied upon by the 

expert which is not necessarily admissible in evidence[,] but which is the type 

of data normally relied upon by experts.'" Ibid. (quoting Polzo, 196 N.J. at 583). 

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids 

the admission into evidence of an expert's conclusions that are not supported by 

factual evidence or other data.'" Id. at 53-54 (alteration and omission in original) 

(quoting Polzo, 196 N.J. at 583). Therefore, an expert is required to "give the 

why and wherefore that supports the opinion, rather than a mere conclusion." 

Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 

115, 144 (2013)). Pursuant to the net opinion rule, an expert must "be able to 

identify the factual bases for their conclusions, explain their methodology, and 

demonstrate that both the factual bases and the methodology are reliable." Id. 

at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). 

"The net opinion rule is succinctly defined as 'a prohibition against 

speculative testimony.'" Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 

2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). 

This results because a speculating expert "ceases to be an aid to the trier of fact 
15 A-0133-23

and becomes nothing more than an additional juror," Jimenez v. GNOC, Corp., 

286 N.J. Super. 533, 540 (App. Div. 1996), affording no benefit to the fact 

finder, see N.J.R.E. 702. 

 Governed by these standards, we have no reason to disturb either 

challenged order, and affirm, substantially for the reasons stated by the judge in 

his oral and written opinions. Moreover, we are persuaded plaintiff's argument 

that Pareja is unconstitutional lacks merit. R. 2:11-3(e)(1)(E). The same is true 

of her argument that Pareja is inapplicable to her case. In fact, there is no 

indication anywhere in the Pareja opinion the Court intended to apply the 

ongoing storm rule only to public property, nor does logic or caselaw support 

such a conclusion. 

Additionally, we are satisfied plaintiff failed to establish either of the 

Pareja exceptions applied to her case. Specifically, plaintiff presented no 

evidence showing defendants exacerbated the risk of harm by removing snow or 

ice just prior to her December 2018 fall. We also concur with the judge's 

determination that plaintiff failed to show a pre-existing risk of harm on the 

Property proximately caused her injuries, considering her expert's opinion as to 

the cause of the December 2018 fall was not tethered to the facts elicited during 

discovery, including plaintiff's deposition testimony. Thus, the judge correctly 
16 A-0133-23

found Pareja's ongoing storm rule relieved defendants of any duty of care they 

may have owed plaintiff, and defendants were entitled to summary judgment as 

a matter of law. 

To the extent we have not addressed any of plaintiff's remaining 

arguments, they lack sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(1)(E). 

Affirmed.