SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4083-17T3

HELEN CONTE and KEVIN 

CONTE, h/w,

Plaintiffs-Appellants, 

v. 

THE FOXMOOR MASTER

ASSOCIATION, INC., THE 

FOXMOOR IV CONDOMINIUM

ASSOCIATION, INC., FOXMOOR

ASSOCIATES, LLC, and

LEVANDUSKI SNOW 

REMOVAL SERVICES, LLC, 

Defendants,

and

SIGNATURE PROPERTY GROUP and

WYNDHAM PLACE CONDOMINIUM

ASSOCIATION,

Defendants-Respondents.

_________________________________

Argued March 6, 2019 – Decided March 27, 2019

Before Judges Fuentes, Vernoia and Moynihan.

NOT FOR PUBLICATION WITHOUT THE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.
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A-4083-17T3

On appeal from Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-2890-15.

Brandon C. Simmons argued the cause for appellants 

(Szaferman, Lakind, Blumstein & Blader, PC, 

attorneys; Michael R. Paglione, on the briefs).

Amanda J. Sawyer argued the cause for respondents 

(Methfessel & Werbel, attorneys; Amanda J. Sawyer, 

of counsel and on the brief).

PER CURIAM

Plaintiffs Helen Conte and Kevin Conte appeal from a January 3, 2018

order granting summary judgment to defendants Signature Property Group

(Signature) and Wyndham Place Condominium Association (Wyndham) 

dismissing the complaint against defendants without prejudice.1 Plaintiffs also 

appeal an April 9, 2018 order denying their motion for reconsideration and 

dismissing the complaint against defendants with prejudice. We affirm in part, 

reverse in part and remand for further proceedings.

 

1

 The order also granted summary judgment to defendants Foxmoor Master 

Association, Inc., The Foxmoor IV Condominium Association, Inc., and 

Foxmoor Associates, LLC, and dismissed the complaint as to those defendants 

with prejudice. Plaintiffs do not challenge on appeal the court's award of 

summary judgment to these defendants or the dismissal of the complaint against 

them with prejudice.
3

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I.

In our review of the record before the trial court, we view the facts and all 

reasonable inferences therefrom in the light most favorable to plaintiffs because 

they are the parties against whom defendants' summary judgment motion was 

filed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 

Applying that standard, the record before the motion court established the 

following facts.

Plaintiff Helen Conte slipped and fell on ice as she walked her dog on a 

sidewalk that runs parallel to Washington Boulevard in Robbinsville. The 

sidewalk is abutted by a fifteen-building, 240-unit residential condominium 

complex that is owned by Wyndham, a non-profit residential condominium 

association. Signature serves as Wyndham's property manager for the 

condominium complex. A raised berm approximately two-feet wide runs 

parallel to the interior edge of the sidewalk. Helen Conte sustained personal 

injuries as a result of her fall.

In their complaint,2 plaintiffs alleged Helen Conte's fall and injuries were 

proximately caused by defendants' negligence. More particularly, they alleged 

 

2

 Plaintiffs filed an original and two amended complaints. We summarize the 

allegations in the second amended complaint. 
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Wyndham owned the sidewalk and defendants negligently failed to remove ice

from the sidewalk, allowed the hazardous ice condition to exist and failed to 

warn of the hazardous condition. Plaintiffs also alleged Levanduski Snow 

Removal, LLC, (Levanduski) was responsible for salting or sanding the 

sidewalk and removing ice from the sidewalk, but negligently performed those 

responsibilities and created the dangerous condition that caused Helen Conte's 

fall.3

Following discovery, defendants moved for summary judgment, arguing 

Hellen Conte fell on a public sidewalk they had no duty to maintain and they 

were exempt from liability for her fall on a public sidewalk abutting Wyndham's 

residential property. Plaintiffs opposed the motion, claiming the sidewalk was 

located on property owned by Wyndham and therefore was part of the common 

elements of the condominium complex. Plaintiffs further asserted Wyndham 

had a duty to maintain the sidewalk because it retained Levanduski to remove 

snow and ice from the sidewalk. 

The court heard oral argument on the motion, and found Wyndham was 

"immune from liability pursuant to the residential property exemption" because 

it was "evident from the proofs that the sidewalk at issue abuts the Wyndham 

 

3

 Plaintiffs' claims against Levanduski were settled.
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property" but "is not part of the actual property itself." In other words, the court 

found Wyndham, and by extension Signature, were exempt from liability for the 

alleged dangerous condition of the property because the sidewalk was not 

located on property Wyndham owned.

The court granted defendants' summary judgment motion but dismissed 

the complaint without prejudice to allow plaintiffs an opportunity to present 

evidence supporting their claim that defendants' negligence created the alleged 

hazardous condition on the sidewalk. The court suggested such evidence could 

be submitted in the form of a motion for reconsideration and instructed plaintiffs' 

counsel he had twenty days to provide additional information supporting the 

claim.

Consistent with the court's instruction, plaintiffs filed a motion for 

reconsideration supported by a supplemental expert report from a forensic 

engineer, John Nawn, P.E.4 Nawn's report asserts that Wyndham is responsible

under the Robbinsville municipal code for clearing the sidewalk where Helen 

Conte fell, and that the berm created a dangerous ice condition on the sidewalk 

because it drained water from melting snow onto the sidewalk and, when the 

 

4

 There is no other report from Nawn included in the record on appeal. 
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temperature dropped below freezing, the drained water froze on the sidewalk. 

Defendants filed a cross-motion for summary judgment. 

After hearing oral argument, the court denied plaintiffs' reconsideration 

motion and dismissed the complaint against defendants with prejudice. The 

court found plaintiffs failed to present "any evidence showing that the pertinent 

depression in the land is an artificial conduit created by the residential property 

owner," and Nawn did not assert the berm was artificially created but instead

noted only that "due to the difference in the elevation between the sidewalk and 

the adjacent berm-like mound, water runs down the hill and onto the sidewalk." 

The court determined that because plaintiffs failed to demonstrate defendants 

created the dangerous condition, they were exempt from liability for Helen 

Conte's injuries because she fell on a public sidewalk adjacent to Wyndham's 

residential property. This appeal followed. 

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. of Pittsburgh, 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).
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Summary judgment must be granted if "the pleadings, depositions, 

answers to interrogatories and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any 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 non-moving party, are 

sufficient to permit a rational factfinder to resolve the alleged disputed issue in 

favor of the non-moving party." Brill, 142 N.J. at 540. 

While "genuine" issues of material fact preclude the granting of summary 

judgment, R. 4:46-2(c), those "of an insubstantial nature" do not. Brill, 142 N.J. 

at 530 (citation omitted). "An issue of 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 nonmoving party, would require submission of the issue to the trier of fact.'" Grande 

v. St. Claire's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 

N.J. 22, 38 (2014)); see also R. 4:46-2(c).

Plaintiffs' complaint asserts negligence claims against defendants. "To 

prevail on a claim of negligence, a plaintiff must establish four elements: (1) 

that the defendant owed a duty of care; (2) that the defendant breached that duty; 
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(3) actual and proximate causation; and (4) damages." Fernandes v. DAR Dev. 

Corp., 222 N.J. 390, 403-04 (2015). "[W]hether a defendant owes a legal duty 

to another and the scope of that duty are generally questions of law for the court 

to decide." Morris v. T.D. Bank, 454 N.J. Super. 203, 209 (App. Div. 2018) 

(alteration in original) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014)). 

"[W]hether the duty was breached is a question of fact." Ibid. (alteration in 

original) (quoting Jerkins v. Anderson, 191 N.J. 285, 305 (2007)).

Residential property owners, including condominium associations, have 

no duty to maintain public sidewalks abutting their land as long as they do not 

affirmatively create a hazardous condition. See Luchejko v. City of Hoboken, 

207 N.J. 191, 210-11 (2011). However, a condominium association is subject

to "common-law premises-liability jurisprudence" for its privately owned

sidewalks, which "imposes a duty on the [a]ssociation to keep its private

sidewalks reasonably safe." Qian v. Toll Bros. Inc., 223 N.J. 124, 142 (2015).

Here, the motion court granted defendants summary judgment dismissing 

plaintiffs' negligence claims. The court found defendants had no duty to remove 

ice from the sidewalk or otherwise maintain the sidewalk because Wyndham did 

not own the sidewalk. The court erred, however, because there is a genuine 

issue of material fact as to whether the sidewalk is owned by Wyndham. 
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More particularly, Wyndham's master deed, which defendants submitted 

to the court in support of their summary judgment motion, includes a description 

of Wyndham's property and incorporates a map showing the property runs 

parallel with and directly adjacent to Washington Boulevard. As plaintiffs

correctly note, "[n]either party undertook a survey to determine whether the 

location of [p]laintiff's accident was within the boundaries of the property," but 

it is not disputed Helen Conte fell on a sidewalk located between Wyndham's 

condominium buildings and Washington Boulevard, and that the sidewalk runs 

parallel to Washington Boulevard. 

Viewing the evidence in the light most favorable to plaintiffs, the map 

annexed to master deed shows that all of the property between Wyndham's 

condominium buildings and Washington Boulevard is owned by Wyndham. 

Thus, although the sidewalk where Helen Conte fell is not depicted on the map, 

because the evidence shows the sidewalk runs parallel to Washington Boulevard 

to the side of the road where the Wyndham condominium is located, the map 

permits the reasonable inference that the sidewalk is located on property owned 

by Wyndham. The inference is further supported by the master deed, which

expressly provides that Wyndham's "common elements shall include . . . [a]ll of 

the walkways . . . located on the . . . parcel of land" described in the deed, and 
10 A-4083-17T3

the evidence showing Wyndham assumed responsibility for the sidewalk's 

maintenance by contracting with Levanduski to clear the sidewalk of snow. 

Defendants dispute that Wyndham owned the property or had a duty to 

maintain it free of the ice plaintiffs argue caused Helen Conte's injuries. That 

dispute, however, is for the jury to resolve. We determine only that the evidence 

before the motion court was sufficient to raise a genuine of issue of fact 

concerning ownership of the sidewalk that precluded an award of summary 

judgment. R. 4:46-2(c). The court's determination that defendants had no duty 

to maintain the sidewalk free of ice is based on an incorrect finding that there is

no factual dispute concerning the sidewalk's ownership. We are therefore 

constrained to reverse the court's order granting summary judgment to 

defendants on plaintiffs' claim that defendants had a duty to maintain the 

sidewalk because it was on property owned by Wyndham. 

Plaintiffs also contend the court erred by denying their motion for 

reconsideration and granting defendants' cross-motion for summary judgment 

dismissing plaintiffs' claim that defendants negligently created a hazardous 

condition on the sidewalk by constructing or maintaining an artificial berm. We 

are not persuaded. 
11 A-4083-17T3

In the first instance, it is inaccurate to characterize plaintiffs' request as a 

motion for reconsideration under Rule 4:49-2. Plaintiffs did not seek 

reconsideration of the court's initial decision granting defendants summary 

judgment based on its finding the sidewalk is not on Wyndham's property. 

Instead, plaintiffs filed the motion pursuant to the court's direction that they

could submit supplemental information, in the form of a putative reconsideration 

motion, to support an alternative theory of liability against defendants—that the 

alleged artificially created berm caused melting snow to pool on the sidewalk 

thereby creating a hazardous condition when the temperatures fell below 

freezing. 

Plaintiffs' alternative theory is founded on the contention that an 

artificially created berm which causes water to flow onto a sidewalk and creates

a hazardous condition permits a finding of liability against defendants. See, e.g., 

Gellenthin v. J. & D., Inc., 38 N.J. 341, 353 (1962) (finding a landowner liable 

for injuries caused by frozen water on a sidewalk resulting from the landowner's 

use of drainpipes to funnel water onto the sidewalk adjacent to the landowner's 

property). The court, however, correctly rejected plaintiffs' alternative theory 

and granted defendants' cross-motion for summary judgment dismissing the 

claim because plaintiffs failed to present any competent evidence that the berm 
12 A-4083-17T3

is not part of the natural topography.5 We therefore affirm the court's denial of 

plaintiffs' reconsideration motion and its order granting defendants' crossmotion for summary judgment dismissing plaintiffs' claim that defendants are 

liable for plaintiffs' alleged injuries because they created a dangerous condition 

through installation or maintenance of a berm that is not part of the natural 

topography, or by allowing the berm to direct water toward or onto the sidewalk 

where Helen Conte fell.

Affirmed in part and reversed in part. Remanded for further proceedings. 

We do not retain jurisdiction.

 

5

 At oral argument before us, plaintiffs' counsel acknowledged that the record 

is devoid of any competent evidence the berm was artificially created.