SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2360-18T2

PETER MARKOU,

Plaintiff-Appellant,

v.

CALIBER HOME LOANS, INC., 

SAFEGUARD PROPERTIES

MANAGEMENT, LLC,1and

AMERICAN REALTY SERVICES

GROUP,

Defendants-Respondents.

______________________________

Submitted February 26, 2020 – Decided April 1, 2020

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3504-17.

Miller, Meyerson & Corbo, attorneys for appellant 

(Alexander O. Bentsen, on the briefs). 

1

 Improperly pled in plaintiff’s complaint as Safeguard Properties, LLC.

NOT FOR PUBLICATION WITHOUT THE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-2360-18T2

Lane M. Ferdinand, PC, attorneys for respondent 

Caliber Home Loans, Inc. (Lane M. Ferdinand and 

Gregory S. James, on the brief). 

Rawle & Henderson LLP, attorneys for respondent 

Safeguard Properties Management, LLC (Diane B. 

Carvell, on the brief).

Law Offices of Stephen C. Cahir, attorneys for 

respondent American Realty Services Group (Lisa 

Marie R. DeRogatis, of counsel and on the brief; 

Samuel Patrick Reisen, on the brief). 

PER CURIAM

In this personal injury action stemming from a slip and fall, plaintiff Peter 

Markou appeals from the Law Division's November 30, 2018 order dismissing 

his complaint against defendant American Realty Services Group, Inc. 

(American Realty) with prejudice;2the August 6 and December 21, 2018 orders 

granting summary judgment to defendants Caliber Home Loans, Inc. (Caliber)

2

 An earlier order entered on March 2, 2018, dismissed the complaint against 

American Realty without prejudice for failure to state a claim pursuant to Rule

4:6-2(e). However, because matters outside the pleading were considered, the 

motion was "treated as one for summary judgment and disposed of as provided 

by [Rule 4:46-2]." R. 4:6-2.
3

A-2360-18T2

and Safeguard Properties Management, LLC (Safeguard), respectively; and the 

January 25, 2019 order denying his motion for reconsideration.3 We affirm.

The motion record reveals that between 7:00 p.m. and 8:00 p.m. on 

Sunday, January 8, 2017, while walking his dogs on the sidewalk close to his 

home on East 45th Street in Bayonne, plaintiff slipped and fell on snow-covered

ice, injuring his face, elbow, and shoulder. Although there had been a 

snowstorm two days earlier, and "the streets were covered with snow on both 

sides," plaintiff observed that all the sidewalks were cleared of snow, except for 

the sidewalk abutting the property where he fell (the property). 

After the fall, as plaintiff collected himself and his dogs, he noticed a "For 

Sale" sign on the property. Plaintiff called the phone number listed on the sign 

and informed Patrick Fox, the real estate broker for American Realty, that he 

had fallen outside of the property. Plaintiff also reported the incident to 

Bayonne's City Hall. On Monday, January 9, 2017, plaintiff saw his primary 

3

 Although plaintiff lists the January 25, 2019 order in his notice of appeal, 

nowhere in his merits brief does he present any legal argument or citation of law 

on why the trial court erred in denying his motion for reconsideration. As a 

consequence, plaintiff has effectively waived this argument on appeal. See N.J. 

Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. 

Div. 2015); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 

(App. Div. 2005) (citing In re Certification of Need of Bloomingdale 

Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989)).
4

A-2360-18T2

care physician, who recommended that plaintiff see an orthopedic doctor for his 

shoulder. Initially, the orthopedist recommended physical therapy. However, 

when plaintiff continued to have pain, after reviewing an MRI, the orthopedist

recommended shoulder surgery, which plaintiff delayed scheduling because of 

monetary constraints. 

The property, a vacant single-family home, was foreclosed upon by Wells 

Fargo Bank, NA, on August 19, 2015. By way of sheriff's sale, Caliber, an 

Oklahoma based corporation and subsidiary of U.S. Bank National Trust 

Association, bought the property on June 20, 2016. On September 11, 2016, 

Caliber contracted with American Realty to list the property for sale. On 

September 23, 2016, Caliber retained Safeguard, a property management 

company, to perform property preservation services at the property. 

Under the service agreement, Safeguard could not perform any work at 

the property unless it was specifically ordered by Caliber or American Realty. 

Caliber, American Realty, and Safeguard communicated about the property 

through a software platform called Equator. On January 9, the day after plaintiff 

fell, American Realty sent a message to Caliber and Safeguard on Equator, 

stating, "Just received a call from [plaintiff] . . . who says he slipped on ice 

which was not cleaned up over weekend. He is asking who is responsible." 
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A-2360-18T2

The following day, January 10, Safeguard replied, 

The broker has made no request for snow removal order 

to be generated. Order # 186764126 has been generated 

TODAY for snow removal. This is a recurring service. 

Snow removal will be completed when accumulations

meet or exceed [three] inches or per local 

code/ordinance. Salt or melting agent will also be 

placed on the driveway, walkways and sidewalk in front 

of [the property] once the snow is removed. 

On January 11, Safeguard confirmed that the property was added to the snow 

removal list. 

On August 21, 2017, plaintiff filed a negligence complaint against 

Caliber, Safeguard, and American Realty, alleging that they breached their duty 

to safely maintain the property and the abutting sidewalk by allowing hazardous 

conditions to exist, and by failing to eliminate the conditions or warn against the 

dangers. Caliber and Safeguard filed contesting answers, including cross-claims

for contribution and indemnification. In lieu of an answer, American Realty

moved for dismissal pursuant to Rule 4:6-2(e). In support, Fox certified that 

American Realty "had no notice or knowledge of any dangerous or hazardous 

condition on the . . . property," and "did not perform any snow and/or ice 

removal services" at the property "prior to or at the time of the alleged incident." 

According to Fox, Safeguard was "responsible for property preservation"

services, "which included snow [and ice] removal," and he "added the property 
6

A-2360-18T2

to [Safeguard's] snow list on September 23, 2016 by request in [the] Equator 

system." 

On March 2, 2018, following oral argument, the judge granted American 

Realty's motion and dismissed plaintiff's complaint. In granting the motion, the 

judge considered "facts outside of the pleadings," including Fox's certification, 

treated the motion as one for summary judgment, and applied "the summary 

judgment standard." See R. 4:6-2; R. 4:46-2. 

In an oral opinion, citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,

448-49 (1993), where the Court held that a real estate "broker is not responsible 

for latent defects that are hidden and of which the broker has no actual 

knowledge," the judge determined that because American Realty had no notice

or knowledge of any dangerous or hazardous condition on the property, there 

was no basis to impose liability. However, the judge dismissed the complaint 

against American Realty without prejudice because "discovery [was] still in its 

infancy" and could uncover additional "evidence" showing that American Realty 

had "a duty." Subsequently, on November 30, 2018, the judge entered an order 

dismissing the complaint as to American Realty with prejudice, after having 

denied plaintiff's motion to reinstate the complaint on July 2, 2018. 
7

A-2360-18T2

Thereafter, Caliber moved for summary judgment, arguing that it was "not 

a commercial landowner," subject to the imposition of "sidewalk liability," but 

"a mortgagee in possession of [a] vacant residential property." Plaintiff 

countered that because "[t]he house was foreclosed" and Caliber actually owned

the property "for business purpose[s]," and "to generate income," Caliber's 

"involvement with [the] property [was] commercial in nature" and "trigger[ed] 

sidewalk liability." 

On August 6, 2018, following oral argument, the judge granted Caliber's 

motion. In an oral opinion, the judge noted there was "no dispute of material 

fact[s]," and the issue turned on whether the property was "commercial or 

residential." In that regard, the judge concluded that Briglia v. Mondrian 

Mortgage Corporation, 304 N.J. Super. 77 (App. Div. 1997) was controlling. In 

Briglia, we held that "a mortgagee in possession of vacant residential property 

is not a commercial landowner for purposes of imposing sidewalk liability." Id.

at 79. The judge determined the fact that Caliber actually owned the property 

did not dictate a different outcome because, as the Briglia court noted, "[t]he 

vacant house does not generate income." Id. at 81. Thus, the judge concluded

the property was "purely . . . a residential property," obviating Caliber's 

obligation to remove snow and ice from the sidewalk. 
8

A-2360-18T2

Thereafter, Safeguard moved for summary judgment. On December 20, 

2018, following oral argument, a different judge rejected plaintiff's attempts to 

distinguish Briglia, and granted Safeguard's motion. In an oral opinion, the 

judge stated that "because no [business] activity" took place at the property and 

there were "no employees present to monitor the necessity for snow and ice 

removal," the property "remain[ed] residential" in nature. Further, "[e]ven 

access to a property that [is] listed for sale is not enough to make it commercial 

property because access is not any different than if a private residence was 

offered for sale." 

Additionally, the judge concluded "the fact that there was a potential 

contract . . . with Safeguard" did not "impose[] any greater duty contractu[]ally 

on Safeguard to remove the snow than that . . . which was the duty of the . . . 

residential property owner under the Briglia standard." Thus, the existence of 

any contract did not convert the property owner's duty to a third party to that of 

a commercial property owner. The judge also rejected plaintiff's argument that 

the contract for "Safeguard [to] complete . . . ongoing maintenance" "create[d]

a duty to a third-party." The judge entered a memorializing order on December 

21, 2018. 
9

A-2360-18T2

Plaintiff moved for reconsideration pursuant to Rule 4:49-2. In support, 

plaintiff's counsel certified that there were "two critical evidential facts" the 

court failed to address in granting summary judgment to Safeguard, namely, 

"[t]he actual contract, which required [Safeguard] to remove the snow from the 

sidewalk in front of the property," and "the photographs produced by 

[Safeguard], which indicate[d] that their work crew was present at the property 

and working in the snow, on January 6, 2017, just [two] days before [plaintiff] 

was injured." 

Counsel explained that while Safeguard's work crew was at the property 

"to drain and remove the swimming pool in the property's back yard," under the 

contract, Safeguard was also "obligated to perform monthly maintenance, which 

include[d] '[s]now [r]emoval,'" "to be performed on a '[b]roker [r]equest 

[b]asis.'" Counsel asserted that Safeguard's "work crew was negligent" for "not 

enter[ing] a request to remove the snow," despite observing it on the property 

two days before plaintiff fell. Thus, as "a third party who clearly was supposed 

to be protected by the snow removal requirements of th[e] contract," plaintiff's 

injury was "proximate[ly] cause[d]" by Safeguard's "neglect of this contract 

obligation." 
10 A-2360-18T2

On January 25, 2019, following oral argument, the judge denied the 

motion. In an oral opinion, the judge confirmed that the contract was in 

plaintiff's "possession through discovery well before the last motion was filed," 

and thus "could have been" but was not previously "presented" to the court. See

Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 463 (App. Div. 

2002) ("[P]laintiff is not entitled to reconsideration on the basis of evidence it 

had available and overlooked in its initial argument" (citing Morey v. Wildwood 

Crest, 18 N.J. Tax 335, 339 (App. Div. 1999))). The judge also stated that 

"[e]ven if it had been brought to [his] attention . . . , it would not have changed 

[his] ruling" because the contract did not create an obligation on Safeguard to 

clear the sidewalk of snow "as soon as it snowed, without being notified." The 

judge entered a memorializing order and this appeal followed. 

On appeal, plaintiff argues the judges erred in dismissing his complaint as 

to all defendants "pursuant to the legal standard for [s]ummary [j]udgment." We 

disagree.

We review a grant of summary judgment applying the same standard used 

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 

(2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, depositions, 

answers to interrogatories, and affidavits—"together 
11 A-2360-18T2

with all legitimate inferences therefrom favoring the 

non-moving party, would require submission of the 

issue to the trier of fact," then the trial court must deny 

the motion. On the other hand, when no genuine issue 

of material fact is at issue and the moving party is 

entitled to a judgment as a matter of law, summary 

judgment must be granted.

[Ibid. (quoting R. 4:46-2(c)); see Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

If there is no genuine issue of material fact, we must "decide whether the 

trial court correctly interpreted the law." DepoLink Court Reporting & Litig. 

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation 

omitted). We review issues of law de novo and accord no deference to the trial 

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

The question then is whether the evidence, when 

viewed in a light most favorable to the non-moving 

party, raises genuinely disputed issues of fact sufficient 

to warrant resolution by the trier of fact or whether the 

evidence is so one-sided that one party must prevail as 

a matter of law.

[Troupe v. Burlington Coat Factory Warehouse Corp., 

443 N.J. Super. 596, 601 (App. Div. 2016) (citing Brill, 

142 N.J. at 540).]

"The practical effect of [Rule 4:46-2(c)] is that neither the motion court 

nor an appellate court can ignore the elements of the cause of action or the 

evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J. 
12 A-2360-18T2

22, 38 (2014). In that regard, pertinent to this appeal, in order to establish a 

prima facie case of negligence, a plaintiff must establish: (1) a duty of care; (2) 

breach of that duty; (3) proximate cause; and (4) damages. Filipowicz v. Diletto, 

350 N.J. Super. 552, 558 (App. Div. 2002). 

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), our Supreme 

Court imposed a duty of care on "commercial landowners" to "maintain[] in 

reasonably good condition the sidewalks abutting their property" or risk liability

"to pedestrians injured as a result of their negligent failure to do so." Reasoning 

"that residential property owners differ from commercial property owners who 

have the ability to spread the cost of loss that an innocent third party may suffer," 

the "Court confined this duty solely to owners of commercial property and 

deliberately did not extend sidewalk liability to residential property owners." 

Grijalba v. Floro, 431 N.J. Super. 57, 61-62 (App. Div. 2013) (citing Stewart, 

87 N.J. at 159 n.6). In Mirza v. Filmore Corp., 92 N.J. 390 (1983), the Court 

extended the duty to maintain public sidewalks abutting commercial properties 

to include "the duty to remove snow and ice" if "after actual or constructive 

notice," the abutting commercial owner "has not acted in a reasonably prudent 

manner under the circumstances to remove or reduce the hazard." Id. at 395.
13 A-2360-18T2

"As a result, before determining whether a duty to maintain a sidewalk 

exists, one must first discern whether the property in question is 'commercial' or 

'residential.'" Grijalba, 431 N.J. Super. at 62. In Abraham v. Gupta, "[p]laintiff 

slipped and fell on snow which accumulated on a sidewalk abutting defendant's 

vacant lot . . . ." 281 N.J. Super. 81, 82 (App. Div. 1995). "The lot [was] zoned 

for commercial use, but [was] not adjacent to or used in conjunction with any 

enterprise or business owned or controlled by defendant." Ibid. Plaintiff sued, 

claiming "defendant was negligent in failing to properly maintain the sidewalk 

by not removing the ice and snow." Ibid.

In affirming the summary judgment dismissal of his personal injury 

action, we noted "Stewart did not define 'commercial property owners.'" 

Abraham, 281 N.J. Super. at 83 (quoting Stewart, 87 N.J. at 150). We explained 

What we glean from Stewart and its progeny is an 

unexpressed, but nevertheless intended limitation to its 

rule: liability is imposed upon the owner of a profit, or 

not-for-profit enterprise, regardless of whether the 

enterprise is in fact profitable. It is the capacity to 

generate income which is the key. In part, liability is 

imposed because of the benefits the entrepreneur 

derives from providing a safe and convenient access for 

its patrons. Secondly, such an enterprise has the 

capacity to spread the risk of loss arising from injuries 

on abutting sidewalks, either through the purchase of 

commercial liability policies or "through higher 

charges for the commercial enterprise's goods and 

services."
14 A-2360-18T2

[Id. at 85 (quoting Mirza, 92 N.J. at 397).]

We then held:

These policy considerations simply do not apply to 

defendant's vacant commercial lot. The lot is not 

owned by or used as part of a contiguous commercial 

enterprise or business. There is no daily business 

activity on the lot to which a safe and convenient access 

is essential. The lot has no means of generating income 

to purchase liability insurance or to spread the risk of 

loss by the increase in cost of goods sold or services 

rendered. Simply because it is designated 

"commercial" by the City's zoning ordinance is an 

insufficient basis to impose the Stewart liability rule 

upon its owner.

[Id. at 85-86.]

Similarly, in Briglia, plaintiff "Timothy Briglia slipped and fell on ice 

hidden under fresh snow which had accumulated on the public sidewalk 

abutting" the neighboring property, a single-family home, which, at the time, 

had been "abandoned" by its prior owner, defendant Daniel Spencer, and was in 

the "possession" of the "first mortgagee," defendant Mondrian Mortgage 

Corporation. 304 N.J. Super. at 79-80. Although Mondrian ultimately obtained 

a final judgment of foreclosure against Spencer, when the plaintiff fell, "the 

house was vacant and uninhabitable." Id. at 80.
15 A-2360-18T2

In affirming the summary judgment dismissal of plaintiff's personal injury 

complaint against both defendants, we rejected "plaintiff's contention that 

Mondrian was a commercial landowner in the context of sidewalk liability by 

virtue of its status as a mortgagee in possession." Ibid. We explained:

The vacant house does not generate income. Mondrian 

does not derive a benefit from the sidewalk abutting a 

vacant house. Even if the house was listed for sale, 

access to it for that purpose is simply not sufficient. It 

does not make it a commercial property because access 

is not any different than if a private residence was 

offered for sale. Mondrian is not conducting "a daily 

business" at [the property] to which "a safe and 

convenient access is essential." More importantly, 

because no activity takes place there, Mondrian does 

not have any employees present to monitor the 

necessity for snow and ice removal. Moreover, 

Mondrian was not the owner of this property at the time 

of plaintiff's fall. Spencer was the record owner . . . . 

Mondrian, as the mortgagee in possession, has limited 

rights to the property. . . . We find no binding authority 

to impose sidewalk liability under the circumstances 

presented here.

[Id. at 81-82 (quoting Abraham, 281 N.J. Super. at 85).]

Plaintiff argues "[t]he facts of this case are not equivalent to the facts in 

[Briglia]." On the contrary, as in Briglia, the vacant house did not generate 

income at the time of the incident, Caliber conducted no daily business activity 

there and had no employees present to monitor the necessity for snow and ice 

removal, and none of the defendants derived a benefit from the sidewalk abutting 
16 A-2360-18T2

the property. Further, the fact that the house was listed for sale and required 

access "for that purpose [was] simply not sufficient" because "access [was] not 

any different than if a private residence was offered for sale." Id. at 81. Thus, 

we agree with both judges that Briglia governs, and, under Briglia, the property 

cannot be considered commercial property to impose the Stewart liability rule. 

We also agree the fact that Caliber was the owner of the property at the time of 

the incident does not dictate a contrary outcome. 

Plaintiff also argues that the property does not qualify for a residential 

"exception from the snow removal requirement" under the factors delineated in 

Grijalba, 431 N.J. Super. at 73. However, because this case does not implicate 

the issues involved in "mixed-use property, such as an owner-occupied two- or 

three-family home," we need not apply the Grijalba factors to resolve "the 

residential-commercial distinction."4 Id. at 65. 

4

 In Grijalba, when classifying mixed-use, owner-occupied property as either 

commercial or residential, we directed trial courts to consider:

(1) the nature of the ownership of the property, 

including whether the property is owned for investment 

or business purposes; (2) the predominant use of the 

property, including the amount of space occupied by 

the owner on a steady or temporary basis to determine 

whether the property is utilized in whole or in 

substantial part as a place of residence; (3) whether the 
17 A-2360-18T2

Finally, plaintiff argues "[t]he existence of a services contract and listing 

agreement that oblige the [d]efendants to remove snow from the sidewalks in 

front of the property creates liability to the third-party beneficiary of the 

contract, [plaintiff]." We disagree.

"The principle that determines the existence of a third[-]party beneficiary 

status focuses on whether the parties to the contract intended others to benefit 

from the existence of the contract, or whether the benefit so derived arises 

merely as an unintended incident of the agreement." Broadway Maint. Corp. v. 

Rutgers, State Univ., 90 N.J. 253, 259 (1982) (citing Brooklawn v. Brooklawn 

Housing Corp., 124 N.J.L. 73, 76-77 (E. & A. 1940)). "The contractual intent 

to recognize a right to performance in the third person is the key. If that intent 

does not exist, then the third person is only an incidental beneficiary, having no 

contractual standing." Ibid.

In Abel Holding Co. v. Am. Dist. Tel. Co., 147 N.J. Super. 263, 272 (App. 

Div. 1977), we noted that "the proper measure" of "the duty owed to third 

property has the capacity to generate income, including 

a comparison between the carrying costs with the 

amount of rent charged to determine if the owner is 

realizing a profit; and (4) any other relevant factor 

. . . . 

[Ibid.]
18 A-2360-18T2

persons for the negligent performance of an undertaking having its genesis in 

contract" was expressed in Restatement (Second) of Torts § 324A (Am. Law 

Inst. 1965), which provides: 

One who undertakes, gratuitously or for consideration, 

to render services to another which he should recognize 

as necessary for the protection of a third person . . . , is 

subject to liability to the third person for physical harm 

resulting from his failure to exercise reasonable care to 

protect his undertaking, if (a) his failure to exercise 

reasonable care increases the risk of such harm, or (b) 

he has undertaken to perform a duty owed by the other 

to the third person, or (c) the harm is suffered because 

of reliance of the other or the third person upon the 

undertaking.

Whether plaintiff's argument is premised on an alleged breach of the 

contract between Caliber and Safeguard, or the alleged tortious conduct of 

Safeguard in failing to remove snow and ice in accordance with the contract, it 

is insufficient to defeat the motion for summary judgment. As to the former, 

plaintiff was, at best, an incidental beneficiary of the contract, "having no 

contractual standing." Broadway Maint. Corp., 90 N.J. at 259 (citing 

Brooklawn, 124 N.J.L. at 76-77). As to the latter, because it is undisputed that 

Safeguard was only obligated to perform snow and ice removal services upon 

request, and there was no request made until after plaintiff's fall, there was no 

undertaking by Safeguard to which liability could attach.
19 A-2360-18T2

To the extent we have not addressed a particular argument, it is because 

either our disposition makes it unnecessary or the argument was without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.