SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4387-18

BRIAN KRUZEL,

Plaintiff-Appellant,

v.

CITY OF NEWARK, the 

Department of Engineering, the

Department of Water and Sewer,

the Department of Neighborhood

and Recreational Services and the

Department of Police,

Defendant-Respondent,

and

COUNTY OF ESSEX, the

Department of Public Works, the

Utilities Authority, and the

Improvement Authority,

Defendant,

and

CITY OF NEWARK,

Third-Party Plaintiff,

NOT FOR PUBLICATION WITHOUT THE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-4387-18

v.

NEWARK HOUSING AUTHORITY,

Third-Party Defendant.

_______________________________

Argued January 26, 2021 – Decided March 3, 2021

Before Judges Yannotti, Haas, and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-3974-16.

Marc B. Schuley argued the cause for appellant 

(Montgomery Fetten, attorneys; Glenn A. Montgomery, 

on the briefs).

Azeem M. Chaudry, Assistant Corporation Counsel,

argued the cause for respondent (Kenyatta K. Stewart, 

Corporation Counsel, attorney; Azeem M. Chaudry and 

Gary S. Lipshutz, Assistant Corporation Counsel, on 

the brief).

PER CURIAM

Plaintiff appeals from an order entered by the Law Division on May 10, 

2019, granting summary judgment in favor of defendant, City of Newark (City). 

We affirm. 

I.

On September 18, 2015, plaintiff was performing his duties as a member 

of the New Jersey State Police within the City. He was a passenger in a motor 
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vehicle, and unbeknownst to plaintiff, the vehicle was parked next to an 

uncovered manhole on a street near the intersection of Van Duyne Street and 

Frelinghuysen Avenue. The street runs through the Newark Housing Authority's 

(NHA) Seth Boyden Housing Complex (SBHC), which was vacant and 

abandoned at the time. Plaintiff allegedly exited the vehicle and fell into the 

uncovered manhole, causing him to sustain injuries to his right ankle. 

On October 19, 2015, plaintiff filed a notice of claim with the City 

pursuant to the New Jersey Tort Claims Act (TCA or the Act), N.J.S.A. 59:1-1 

to 12-3. Thereafter, plaintiff filed a complaint naming as defendants the City 

and the County of Essex, along with various subdivisions of these public 

entities.

1

 Plaintiff asserted claims of negligence.

In June 2016, the City's attorney informed plaintiff's counsel that the 

property where the subject manhole was located was owned and controlled by 

the NHA. Plaintiff filed a motion for leave to serve a late notice of claim upon 

the NHA. By order entered on July 22, 2016, the trial court denied the motion. 

1 Plaintiff named the City's Department of Engineering, Department of Water 

and Sewer, Department of Neighborhood and Recreational Services, and the 

Police Department. He also named the County's Department of Public Works, 

Utilities Authority, and Improvement Authority. 
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We thereafter granted plaintiff's motion for leave to appeal and, while the 

appeal was pending, the City filed a third-party complaint against the NHA for 

apportionment and discovery purposes only. In its answer to the third-party 

complaint, the NHA admitted it owned the SBHC and Seth Boyden Terrace, a

private road within the SBHC. We later affirmed the trial court's order of July 

22, 2016. Kruzel v. City of Newark, No. A-5231-15 (App. Div. Dec. 19, 2017). 

In March 2019, the City filed a motion for summary judgment. The City 

asserted that its maps show that the open manhole at issue was located on Seth 

Boyden Terrace. The City maintained that the manhole was not within a 

municipal roadway, and there was no evidence that the City had any control or 

responsibility for Seth Boyden Terrace or the SBHC. The City also argued that 

it did not have actual or constructed notice of the alleged dangerous condition, 

and that plaintiff did not suffer injuries sufficient to warrant recovery under 

N.J.S.A. 59: 9-2(d). 

Plaintiff opposed the motion. Plaintiff argued that the motion was 

improper because it was filed within thirty days of the scheduled trial date, 

which is contrary to Rule 4:46-1. He also argued there are genuine issues of 

material fact that preclude summary judgment in favor of the City, and that he 

presented sufficient evidence to support his claim for damages under the Act. 
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The parties submitted answers to interrogatories, documents, and 

responses to requests for admissions. The parties also provided the court with 

transcripts of depositions taken in June and September 2018. 

Emanuel Foster was the NHA's Director of Asset Management in 2015. 

He testified that the NHA has twenty-four rental "communities." The SBHC is 

one of the NHA's properties. Foster said the NHA learned of the open manhole 

on September 21, 2015. 

Kenneth Hubbard was the Supervisor of the City's Sewer Department in 

2015. He testified that in September 2015, he responded to a complaint of a 

missing manhole cover at the SBHC. He stated that when he arrived at the site 

of the incident, he determined that it was located on private property within the 

"Seth Boyden Projects." 

Hubbard also said that when he first arrived at the complex, some persons 

directed him to an open manhole cover. He notified the dispatch office that the 

manhole was located on NHA property. He stated that the Sewer Department 

does not "address anything within private property." Hubbard then left the 

scene. 

Kareem Adeem testified that in September 2015, he was employed as the 

assistant director for the City's Department of Water and Sewer. He said that on 
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September 18, 2015, his supervisor Mike Gelin was informed of the accident at 

SBHC. He said the accident occurred on NHA property and that the City does 

not maintain any utilities on NHA property or perform other services at those 

locations, such as snow removal or street sweeping. 

Juba Dowdell said that in September 2015, he was employed by the City 

as the Deputy Coordinator of the Office of Emergency Management, Homeland 

Security. He testified that shortly after the incident in September 2015, he was 

informed that one of his "guys" had fallen down a manhole. He went to the site, 

and noted that it was an abandoned housing complex, with "[e]xtreme illegal 

dumping." He said local citizens were entering the abandoned housing complex, 

taking metal, and selling it. 

Dowdell further testified that he returned to the office and notified the 

NHA "what was going on." He said he wanted to "get the ball rolling" so that 

the NHA "would clean up the site and secure it." Dowdell was told to call the 

Water Department and he was informed that the accident site belonged to the 

NHA. 

Dowdell stated that "[i]t was obvious" that the site was NHA property. He 

testified, that "[e]verybody knows that [Seth Boyden] belongs to" the NHA. 

However, Dowdell then stated that his "memory" was "coming back." He said 
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the manhole was across the street, and it was not in the Seth Boyden complex. 

He asked the attorney who was questioning him whether that was "correct." 

Richard Zieser, Deputy Chief of the City's Fire Division, testified that he 

was "not sure" who owned housing projects like the SBHC. He noted there were 

several of such projects in the City. He stated that he considered the projects to 

be "city owned as compared to a privately-owned complex or buildings." 

The record shows that after plaintiff's fall, the City took certain measures 

to address the open manhole. In its answers to plaintiff's interrogatories, the 

City stated that it installed a temporary cover over the manhole, but it did not 

indicate the date on which it did so or who installed the cover. 

Adeem testified that Dowdell's initial instructions were to "[p]ut a drum 

or something" around the manhole, and to then notify the NHA. He said the 

manhole was on the NHA's property and its maintenance was the NHA's 

responsibility. 

He testified, however, that the City's policy is that when an employee sees 

an uncovered manhole that no one is attending to, he or she must secure it—by 

placing a cone, drum, caution tape or steel plate around it—and then notify the 

owner. He stated that "[y]ou just can't leave the hole open." 
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Zieser testified that, after June 5, 2016, he worked with the City's special 

operations division to cover the manhole with barriers and make it temporarily 

safe until the NHA could implement a permanent solution. He testified that he 

did not know who would be responsible for implementing the permanent 

solution. He said that, to the best of his knowledge, the NHA implemented the 

permanent solution, which was to weld steel over all manholes in the complex.

Moreover, on June 5, 2016, one of the City's firefighters fell into an 

uncovered manhole while responding to a fire at the SBHC. On that date, 

personnel from the City's Department of Public Safety, Fire Division, inspected 

the complex and found that numerous manhole covers were still missing. 

Zieser wrote a memorandum on the same day in which he noted an 

"extremely dangerous condition" at the SBHC. He characterized the uncovered 

manholes as "mantraps" because of the overgrown vegetation and debris in the 

complex. 

Dowdell also wrote a memorandum dated June 10, 2016, regarding the 

Department of Public Safety's investigation of the housing complex that took 

place several days earlier. He wrote that he informed Foster that the condition 

at the housing complex "pose[d] a public safety hazard to the general public at 

large and [protective measures] must be instituted immediately. [Foster] didn't 
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disagree." Dowdell stated that the NHA took full responsibility for the cleanup and security of the site. 

On May 10, 2019, Judge Bridget A. Stecher heard oral argument and 

placed her decision on the record. The judge noted that under the Act, "public 

property" is defined as property owned or controlled by a public entity. The 

judge noted that the property at issue is owned by the NHA, and plaintiff failed 

to present sufficient evidence to show that the City exercised any control over 

the property before the accident. 

The judge noted that, while the City had taken certain remedial actions 

after plaintiff's accident, it did so because it had actual notice of the dangerous 

condition at that time and was obligated to do so to avoid liability under the 

TCA. The judge stated that the City did not treat the property as its own, for 

public purposes, and these remedial measures do not demonstrate that it 

controlled the property prior to the incident. 

The judge memorialized her decision in an order dated May 10, 2019. 

Plaintiff's appeal followed. We note that at some point, plaintiff's claims against 

the County were dismissed. In addition, on August 29, 2019, the trial court 

entered a consent order dismissing plaintiff's claims against the City's 

Departments of Engineering, Water and Sewer, Neighborhood and Recreational 
10 A-4387-18

Services, and Police, as well as the City's third-party complaint against the NHA, 

with prejudice. 

II. 

On appeal, plaintiff argues that the trial court erred by granting the City's 

motion for summary judgment. Plaintiff contends that the City must be deemed 

to have had constructive notice of the alleged dangerous condition and it acted 

in a palpably unreasonable manner when it delegated its statutory duty to safely 

maintain the municipal utility infrastructure to the NHA. 

When reviewing an order granting or denying summary judgment, we 

apply the standard under Rule 4:46-2(c) that the trial court applies when ruling 

on the motion. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (citing 

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment should be 

granted when the evidence before the court on the motion "show[s] 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). 

The motion court must determine facts in the light most favorable to the 

party opposing summary judgment. Igdalev, 225 N.J. at 479. However, "[i]f 

there exists a single, unavoidable resolution of the alleged disputed issue of fact, 

that issue should be considered insufficient to constitute a 'genuine' issue of 
11 A-4387-18

material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of 

Am., 142 N.J. 520, 540 (1995). Thus, the trial court should grant summary 

judgment if the evidence "is so one-sided that one party must prevail as a matter 

of law." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986)). 

The TCA provides in relevant part:

A public entity is liable for injury caused by a condition 

of its property if the plaintiff establishes that

[1] the property was in dangerous condition at the time 

of the injury,

[2] that the injury was proximately caused by the 

dangerous condition,

[3] that the dangerous condition created a reasonably 

foreseeable risk of the kind of injury which was 

incurred,

[4] and that either:

(a) a negligent or wrongful act or omission of an 

employee of the public entity within the scope of his 

employment created the dangerous condition; or

(b) a public entity had actual or constructive notice of 

the dangerous condition under section 59:4-3 a 

sufficient time prior to the injury to have taken 

measures to protect against the dangerous condition[, 

and]
12 A-4387-18

[5] Nothing in this section shall be construed to impose 

liability upon a public entity for a dangerous condition 

of its public property if the action the entity took to 

protect against the condition or the failure to take such 

action was not palpably unreasonable.

[N.J.S.A. 59:4-2.]

Thus, N.J.S.A. 59:4-2 imposes potential liability on a public entity only 

for injury on property of the public entity. "Public property" is defined in the 

Act as "real or personal property owned or controlled by the public entity . . . ." 

N.J.S.A. 59:4-1(c). Public property "does not simply mean any property falling 

within the geographical boundaries of a municipality." Christmas v. Newark, 

216 N.J. Super. 393, 398 (App. Div. 1987). 

A public entity is not liable for dangerous conditions on the property of 

others. Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 197 (App. Div. 

2008). Furthermore, in the absence of proof that the public entity owned the 

property at issue, the plaintiff must demonstrate that the public entity controlled 

the property. Christmas, 216 N.J. Super. at 397.

It should be noted that a public entity's regulatory control of the property 

of others is insufficient to establish control under the Act; rather, the entity must 

exercise "possessory control consistent with property law[.]" Posey v. 

Bordentown Sewerage Auth., 171 N.J. 172, 183 (2002) (citing Danow v. Penn 
13 A-4387-18

Cent. Transp. Co., 153 N.J. Super. 597, 603 (Law Div. 1977)). "[P]ossessory 

control is satisfied where a public entity treats private property as its own by 

using it for public purposes." Id. at 184. 

In Dickson, the State, rather than the Township, owned the roadway on 

which the plaintiff was injured. 400 N.J. Super. at 197. We held that the 

Township's protective police patrol of the roadway did not establish possessory 

control under the TCA. Ibid. Moreover, in Farias v. Twp. of Westfield, 297 

N.J. Super. 395, 403 (App. Div. 1997), we rejected the plaintiff's claim that the 

public entity controlled State-owned property by "incidental acts," such as 

removing snow and placing trash cans in an area.

Here, plaintiff failed to present sufficient evidence to raise a genuine issue 

of material fact as to whether the City owned or controlled the property where 

the alleged dangerous condition was located. It is undisputed that the subject

manhole was on property owned by the NHA. 

It is well-established that the NHA is an entity that is separate and 

independent of the City. See English v. Newark Hous. Auth., 138 N.J. Super. 

425, 430 (App. Div. 1996). The NHA acknowledged ownership of the property, 

and its position is consistent with the City's tax map, the City's discovery 
14 A-4387-18

responses, and the deposition testimony provided by Foster, Hubbard, and 

Adeem. 

In support of its contention that there is a genuine issue of material fact as 

to whether the City owned or controlled the property, plaintiff relies upon 

Dowdell's testimony that he observed several manholes when he visited the 

SBHC on September 21, 2015. He said the manholes were within and outside 

of the complex. He also stated that "the manhole we're talking about" is on the 

City's property. 

Plaintiff also relies on testimony by Zieser, who stated that the Fire 

Division "always considered" housing complexes like SBHC to be "city owned 

as compared to a privately-owned complex or buildings." In addition, plaintiff 

relies upon Foster's testimony, but Foster said he was not sure whether plaintiff 

was injured on the NHA's property or the City's property. 

This testimony is insufficient as a matter of law to raise a genuine issue 

of material fact as to ownership of the property at issue. There is no indication 

that Dowdell or Zieser had the knowledge or expertise to offer an opinion as to 

ownership of the property. Moreover, Dowdell offered conflicting testimony on 

the issue, and Foster said he did not know.
15 A-4387-18

Plaintiff also contends the evidence showing that the City took postaccident remedial actions regarding the open manhole was sufficient to raise a 

genuine issue of material fact as to the City's alleged control of the property. 

However, as the City points out, its post-accident efforts to secure the open 

manhole does not create a presumption or inference of control. 

As noted, control for purposes of liability for a dangerous condition of 

public property under the TCA requires proof that the public entity treated the 

property of another "as its own." Posey, 171 N.J. at 184. Incidental use, as 

evidenced by the remedial measures taken here, are insufficient to establish 

control for purposes of the TCA. Farias, 297 N.J. Super. at 403. 

In this regard, we note a public entity may be liable under N.J.S.A. 59:4-

4 for failing to warn the public about a dangerous condition on the property of 

another if the public entity had actual notice of that condition. Debonis v. 

Orange Quarry Co., 233 N.J. Super. 156, 171 (App. Div. 1989). Here, the record 

shows that the City took remedial measures after plaintiff's accident. It did so 

to protect its firefighters and members of the public from a dangerous condition 

on the property. In doing so, the City is not exercising "control" of the property 

for purposes of liability under N.J.S.A. 59:4-2. 
16 A-4387-18

Here, the trial court did not err by finding that there was no genuine issue 

of material fact as to whether the City owned or controlled the subject property. 

The evidence shows that the NHA is the owner of the property where the open 

manhole was located, and plaintiff failed to present sufficient evidence to show 

that the City controlled the property at issue. The trial court correctly found 

that, for these reasons, the City was entitled to summary judgment.

III.

The City contends that even if there was a genuine issue of material fact 

as to whether it owned or controlled the property, it was entitled to summary 

judgment because before plaintiff's accident, the City did not have actual or 

constructive notice of the alleged dangerous condition. Plaintiff argues, 

however, that the evidence shows the City had constructed notice of the 

dangerous condition of the "municipal utility infrastructure" within the SBHC. 

Plaintiff contends the testimony of Dowdell and Zieser shows that the City 

was aware that the SBHC was abandoned property and the site of extensive 

illegal dumping and over-grown vegetation. According to plaintiff, vagabonds 

were sheltering in the complex, which created a hazard to the public. Plaintiff 

states that Dowdell's testimony indicated that local citizens and others were 

entering the complex, taking metal, and selling it. 
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The TCA provides in N.J.S.A. 59:4-3 that:

(a) A public entity shall be deemed to have actual 

notice of a dangerous condition within the meaning of 

subsection b. of [N.J.S.A.] 59:4-2 if it had actual 

knowledge of the existence of the condition and knew 

or should have known of its dangerous character.

(b) A public entity shall be deemed to have constructive 

notice of a dangerous condition within the meaning of 

subsection b. of [N.J.S.A.] 59:4-2 only if the plaintiff 

establishes that the condition had existed for such a 

period of time and was of such an obvious nature that 

the public entity, in the exercise of due care, should 

have discovered the condition and its dangerous 

character.

We are convinced that, even if we were to conclude that plaintiff presented 

sufficient evidence to show that the City owned or controlled the property where 

plaintiff was injured, he failed to raise a genuine issue of material fact as to 

whether the City had actual or constructive notice of the alleged dangerous 

condition. There is nothing in the record that shows the City had actual 

knowledge of the open manhole in which plaintiff allegedly fell. 

In addition, plaintiff failed to show that the condition "existed for such a 

period of time and was of such an obvious nature" that the City, "in the exercise 

of due care, should have discovered the condition and its dangerous character." 

Ibid. Plaintiff presented no evidence showing that the City knew, before the 

accident, there were open manholes in the SBHC or that the City knew about the 
18 A-4387-18

specific open manhole that allegedly caused plaintiff's injury. Plaintiff also

presented no evidence showing that the City had received, before the accident,

any general complaints about the alleged dangerous conditions at the SBHC, or 

any specific complaints about the open manhole into which plaintiff fell. 

Although Dowdell testified that persons engaged in illegal dumping in the 

area and took metal from the property, he made these observations during a site 

visit that occurred after plaintiff's accident. Dowdell stated that this visit was 

the first time he had been at the complex in years. Similarly, while Zieser 

testified that open manholes in the housing complex were "mantraps," he 

observed the open manholes when he investigated the site in June 2016, which 

was months after plaintiff's accident.

In Carroll v. N.J. Transit, 366 N.J. Super. 380, 384 (App. Div. 2004), the 

plaintiff slipped on dog feces on the steps of a subway station. The plaintiff 

claimed a maintenance worker had been sweeping up garbage in the area at the 

time of the accident. Ibid. We held that, even assuming the defendant's 

employee was in the area, the plaintiff had not met the "fundamental requirement 

of constructive notice under N.J.S.A. 59:4-3(b)." Id. at 388. 

We stated that the plaintiff had to show that the condition existed for such 

a period of time that the defendant should have known of it. Ibid. We noted 
19 A-4387-18

that the dog feces could have been on the steps "hours, minutes or seconds before 

the accident . . . ." Ibid. (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 574

(App. Div. 1997)). There also was no evidence as to the location of the 

maintenance worker in relation to the steps, or where he was before the plaintiff 

arrived at the station. Ibid. 

In addition, there was no evidence of any prior complaints from the public 

about the presence of dog feces or other slippery substances at the location or a 

history of similar incidents. Id. at 388-89. Plaintiff's proofs regarding the open 

manhole at SBHC suffer from similar deficiencies.

Moreover, in Patrick ex rel Lint v. City of Elizabeth, 449 N.J. Super. 565, 

568 (App. Div. 2017), an eight-year-old child was struck by a motor vehicle 

while crossing a street near a municipal park, which was located about a block 

from a public elementary school. An unidentified motorist had stopped to let 

the children cross the street. Ibid. As they were crossing the street, another 

motorist passed the stopped car and struck the child. Ibid. 

We held that the plaintiff, who brought suit on behalf of the child, failed 

to present sufficient evidence to establish liability against the City on the ground 

that the crosswalk constituted a dangerous condition of its public property. Id.

at 572-74. We noted that the plaintiff claimed the absence of signage regarding 
20 A-4387-18

the school zone and speed limit, as well as faded crosswalks, combined with 

increased traffic from a nearby mall, created a dangerous condition. Id. at 572. 

The plaintiff alleged that the City and its Board of Education knew or should 

have known of the dangerous condition. Ibid.

We noted, however, that the police reports did not reveal any similar 

accident in the area, and there were no complaints about the lack of signage at 

the location of the accident. Id. at 573. We pointed out that a municipality is 

entitled to immunity under the Act from liability with regard to the exercise of 

its discretion in selecting the type and location of signs on public streets. Id.

573-74 (citing N.J.S.A. 59:2-3(a)). 

This case does not present a claim of immunity; however, like the plaintiff 

in Patrick, there is no evidence of prior complaints regarding the alleged 

dangerous condition or accidents related to the open manhole into which 

plaintiff allegedly fell. As in Patrick, the evidence is insufficient to establish 

that the City had constructive notice of the alleged dangerous condition at the 

SBHC. 

We therefore conclude that, even assuming the City owned or controlled 

the subject property at the SBHC, the City was entitled to summary judgment

because plaintiff failed to present sufficient evidence to show the City had actual 
21 A-4387-18

or constructive notice of the alleged dangerous condition, which is required for 

liability under N.J.S.A. 59:4-2. 

 IV. 

Plaintiff also argues that N.J.S.A. 48:2-23 and N.J.S.A. 48:3-3 require 

every public utility to provide safe and adequate service and that the City's water 

and sewer website outlines its program to maintain its manholes and water and 

sewer systems. He contends that N.J.S.A. 40:14B-3(8) and -3(9) define "water 

system" and "sewerage system," respectively, in broad terms, such that 

manholes and their covers are part of the municipal water and sewer systems. 

Plaintiff asserts that, as such, the City's Municipal Utilities Authority is 

responsible for maintaining all manholes that are part of its contiguous utility 

infrastructure. He also argues that the City's municipal ordinances designate the 

curb cock valve as the dividing line—in terms of both ownership and 

maintenance responsibility—of the municipal water utility system, such that the 

water main, manholes and covers are parts of the City-owned system. 

Plaintiff contends that because the manholes are part of the City's water 

and sewer systems, they constitute "public property" within the meaning of the 

TCA. He also argues that, because the City restricts other entities from gaining 

access to municipal utility infrastructure and uses public property for public 
22 A-4387-18

purposes, this constitutes "control" within the meaning of the TCA. He therefore 

contends that the open manhole at the SBHC was a "dangerous condition" within 

the definition of the TCA. 

Plaintiff raises these issues for the first time on appeal. It is well-settled 

that an appellate court need not consider arguments that a party failed to raise 

in the trial court, when the party had an opportunity to do so, "unless the 

questions so raised on appeal go to the jurisdiction of the trial court or concern 

matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 

234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 

(App. Div. 1959)).

Here, the issue of the City's alleged responsibility for an uncovered 

manhole cover at the SBHC under the statutes cited by plaintiff does not 

constitute a matter of genuine public interest. The issue also has no bearing on 

the trial court's jurisdiction. Moreover, plaintiff had the opportunity to present 

these arguments in the trial court and failed to do so. 

Furthermore, the issues raise issues of fact, and the City did not have the 

opportunity to conduct discovery on these claims. The record before us does 

not provide a sufficient basis to address these issues. We therefore decline to 

address the arguments that plaintiff raises for the first time on appeal. 
23 A-4387-18

We note, however, that plaintiff's arguments are addressed primarily to

the issue of whether the City owned or controlled the property at SBHC where 

plaintiff allegedly fell. As stated previously, even if we were to conclude that 

the City owned or controlled the subject property, the City was entitled to 

summary judgment because plaintiff failed to show the City had actual or 

constructive notice of the alleged dangerous condition. 

Affirmed.