SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3685- 21 NICOLETTE PIPPIS, Plaintiff-Appellant,

v. PDC 16-20 HUDSON PLACE REALTY, LLC, MKG MUNDIAL LLC, d/b/a BODY BALANCE, and BODY BALANCE INC., Defendants-Respondents.

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Argued January 30, 2024

– Decided September 6, 202 4 Before Judges Gooden Brown and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

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- 20. Timothy J. Foley argued the cause for appellant (Fo ley & Foley, and Eisbrouch & Marsh, LLC, attorneys; David L. Eisbrouch, Sherry L. Foley and Timothy J. Foley, of counsel and on the briefs ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3685

- 21 Robert MacDonald argued the cause for respondent, PDC 16-20 Hudson Place Realty, LLC (MacDonald & Herforth , attorneys; Robert MacDonald, on the brief). Michael P. Chipko argued the cause for respondent MKG Mundial LLC, d/b/a Body Balance (Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys; Michael P. Chipko, of counsel and on the brief).
PER CURIAM Plaintiff Nicolette Pippis appeals from the May 24, 2022, Law Division orders granting summary judgment dismissal of her p remises liability complaint against defendants PDC 16-20 Hudson Place Realty, L LC (PDC), and MKG Mundial, LLC d/b/a Body Balance (MKG). Plaintiff a lso appeals from the July 11, 2022, order denying her motion for reconsiderat ion. For the reasons that follow, we reverse.
Th is matter arises from an incident that occurred on Ma rch 29, 2019, when plaintiff allegedly slipped and fell while exiting a building owned by defendant PDC, after visiting defendant MKG, a tenant in the building. We glean these facts from the motion record, viewed in the light m ost favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 57 3, 577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). At approximately 1:30 p.m. on March 29, 2019, plain tiff, who was nine months pregnant, had a prenatal massage at MKG, loc ated on the second floor3 A- 3685

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at 20 Hudson Place in Hoboken. While walking down the stairs to exit the building, plaintiff fell near the bottom of the stairs , breaking her ankle. In her interrogatory responses, plaintiff certified that a s she descended the stairs, she

was holding onto the handrail . When she got towards the last four or five steps, "the railing ended and there was no lighting," caus ing her to miss the step and fall. Plaintiff testified at her deposition that she frui tlessly attempted to grab for the handrail as she fell but "the railing cut short a few steps." When asked to clarify the number of steps, plaintiff testified sh e was "not sure exactly how many steps" but confirmed that it was more than one and adamantly denied that she tripped. Police, fire, and emergency services personnel wer e dispatched, and plaintiff was transported to Hoboken University Med ical Center (the Medical Center). The responding Hoboken police officer reporte d that plaintiff told him "she felt her left foot give out while walking down the stairs" and she fell "about [four] to [five] steps, to the bottom of the stair[ case] ." 1 Hoboken Fire Department personnel provided assistance and reporte d that plaintiff "stated she

1 Both plaintiff's deposition and the police report i ndicate that plaintiff fell "to the bottom of the staircase" and she was found on t he floor near the building's entrance.4 A- 3685

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fell from the fourth step and hurt her ankle." Res ponding emergency medical services personnel reported that plaintiff explaine d that "while she was walking down the stairs she tripped[,] sliding down the las t [four] steps injuring her [right] ankle." At the Medical Center, plaintiff's triage nurse commented that plaintiff "slipped down [four] sta irs." According to plaintiff's architectural expert, Kenn eth Stoyack, the handrail for the stairs "did not extend over the en tire bottom tread" and "stopped short" of the edge of the final step by two and one -half inches. In his deposition, Stoyack explained that current building codes would require the handrail for these stairs to extend at least ten and one-quarter inches past the bottom step. 2 Stoyack opined that plaintiff "lost her balance" an d "fell off the bottom of the stairway" because "[ t]he handrail was short and she could [ not] grasp it." He concluded that the "lack of handrail coverage over the entire bottom tread" was a dangerous condition that contributed to plaintiff 's accident. Plaintiff filed a complaint against defendants, all eging negligence "in the method and manner in which [they] maintained the ha llway of the subject premises." In the complaint, plaintiff asserted that as a resu lt of defendants'

2 Stoyack acknowledged at his deposition that those r equirements may not apply to the subject handrail because he d id not know when the handrail was installed and the codes only applied prospectively.5 A- 3685

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failure to provide "adequate lighting" and "adequat e [stairway] railings," she "slipped and fell on the last three to four steps," sustaining severe personal injuries. Both defendants moved for summary judgme nt following the close of discovery. Following oral argument, the judge ente red an order on May 24, 2022, grant ing defendants' motions and dismissing plaintiff's com plaint with prejudice. In an accompanying written decision, the judge dete rmined that plaintiff could not prove proximate causation becau se plaintiff provided conflicting information about the cause of her fall

. The judge found that because plaintiff claimed to have fallen from the third or fourth step, the absence of railing at the bottom of the stairs could not have proximately caused her injury. The judge recounted the facts recited in the compla int and interrogatory responses as well as plaintiff's account of the fal l to responding police, emergency services, and hospital personnel where pl aintiff stated the fall began around the last three to four steps. According to the judge, "[ i]n contrast, [p]laintiff's [e]xpert opined that ' th [e] accident had to occur on the bottom tread of the stairway, '" and that the "'handrail stopped short'" and "'did not cover the entire bottom tread.'" (Emphasis omitted). Based on that evidence, the ju dge concluded: Plaintiff's own expert contradicts her [c]omplaint. In

light of this contradiction, [p]laintiff has not sh own6 A- 3685

- 21 how a rational factfinder could resolve the alleged dispute in her favor, per the Brill standard. Plai ntiff has not provided this [c]ourt with competent evidence t o support her arguments. As such, [p]laintiff has no t shown proximate cause and her opposition fails. In her decision, the judge briefly addressed a spo liation claim plaintiff raised in her opposition to the summary judgment mo tions. By way of background, Rick Huet, a managing partner at MKG, a dmitted under oath that he had inadvertently deleted a portion of the surve illance video of the staircase that purportedly depicted plaintiff's fall. In his deposition, Huet testified that b y the time he reached out to the company that might have preserved the relevant footage , too much time had passed and the footage had alread y been deleted from the company's records. The judge rejected pla intiff's spoliation claim and denied plaintiff's request for relief, reasoning th at plaintiff did not "identify her attempts to obtain" the video and did not file a mo tion to compel before the close of discovery. In a July 11, 2022, order, the judge denied plainti ff's subsequent motion for reconsideration, finding plaintiff failed to me et the standard for reconsideration under Rule 4:49 -2. In denying reconsideration, the judge added that the deleted video was irrelevant because "[t]h e tape show[ed] nothing." Screenshots from the surveillance footage provided in the record demonstrate7 A- 3685

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that the angle of the camera does not show the disp uted portion of the stairs or handrail. This appeal followed. On appeal, plaintiff raises the following points fo r our consideration:
POINT I THE ORDERS FOR SUMMARY JUDGMENT MUST BE REVERSED BECAUSE [PLAINTIFF] PRODUCED SUFFICIENT EVIDENCE TO PRESENT THE ISSUE OF PROXIMATE CAUSATION TO A JURY. POINT II THE DESTRUCTION OF THE VIDEOTAPE THAT ALLEGEDLY SHOWED [PLAINTIFF]'S FALL ENTITLES [PLAINTIFF] TO AN INFERENCE IN HER FAVOR ON MOTION FOR SUMMARY JUDGMENT. POINT III THE ORDER DENYING RECONSIDERATION SHOULD BE REVERSED BECAUSE TAKING PROXIMATE CAUSE FROM THE JURY WAS PALPABLY INCORRECT AND BECAUSE THE COURT FAILED TO APPRECIATE COMPETENT EVIDENCE. "[W]e review the trial court's grant of summary jud gment de novo under the same standard as the trial court." Templo Fuen te De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 19 9 (2016). That standard is well-settled.8 A- 3685

- 21 [I]f the evidence of record

— the pleadings, depositions, answers to interrogatories, and affidavits

— "together with all legitimate inferences therefrom favoring t he non -moving party, would require submission of the issue to the trier of fact," then the trial court m ust deny the motion. R. 4:46 -2(c); see Brill[, 142 N.J. at 540]. On the other hand, when no genuine issue of materia l fact is at issue and the moving party is entitled t o a judgment as a matter of law, summary judgment must be granted. R. 4:46 -2(c); see Brill, 142 N.J. at 540. [Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344 , 366 (2016).] Where there is no material fact in dispute, "we mus t then 'decide whether the trial court correctly interpreted the law.'" D epoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). "We review issues of law de novo and accord no deferenc e to the trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Siri us Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018). On the other hand, "[a] motion for reconsideration . . . is a matter left to the trial court's sound discretion," and is therefo re entitled to deference. Lee v. Brown, 232 N.J. 114, 126 (2018) (omission in origin al) (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87 (2010)). A party may m ove for reconsideration of a court's decision pursuant to Rule 4:49 -2, on the grounds that (1) the court based9 A- 3685

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its decision on "'a palpably incorrect or irrationa l basis'," (2) the court either failed to consider or "appreciate the significance of probative, competent evidence," or (3) the moving party is presenting "n ew or additional information . . . which it could not have provided on the first application." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (qu oting D'Atria v. D'Atria , 242 N.J. Super. 392, 401 (Ch. Div. 1990)). The mov ing party must "initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actua l reconsideration process." D'Atria, 242 N.J. Super. at 401. In determining whether the trial judge correctly in terpreted the law, we begin by "identifying the elements of the cause of action and the standard of proof governing th[e] claim." Bhagat v. Bhagat, 21 7 N.J. 22, 39 (2014). "To sustain a cause of action for negligence, a plainti ff 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) (quoti ng Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008) (internal quotat ion marks omitted) ). Proximate cause is the only element in dispute in t his appeal and "consists of 'any cause which in the natural and continuous sequ ence, unbroken by an efficient intervening cause, produces the result co mplained of and without which10 A- 3685

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the result would not have occurred.'" Ibid. (quoti ng Conklin v. Hannoch Weisman, 145 N.J. 395, 418 (1996) (internal quotati on marks omitted)). Stated another way, the question of proximate cause "asks whether the actual harm suffered was a reasonable consequence of the de fendant's actual act or omission." Coleman v. Martinez, 247 N.J. 319, 3 55 (2021) (citing Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 50 3 (1997)). "[G]enerally, '[i]t suffices if [the cause] is a substantial contributi ng factor to the harm suffered.'" Ibid. (second and third alteration in original) (qu oting Perez v. Wyeth Labs. Inc. , 161 N.J. 1, 27 (1999)). Importantly, "[p]roximate cause is generally a question for the jury, but courts may 'reject[] the impositi on of liability for highly extraordinary consequences.'" Id. at 356 (second a lteration in original) (quoting J.S. v. R.T.H., 155 N.J. 330, 351-52 (1998)). Here, the judge found proximate cause was lacking b ecause the allegedly deficient railing was on the bottom step and plaint iff lost her balance on the third or fourth step. However, a reasonable jury could find that addition al railing at the end of plaintiff's fall path could have helped p laintiff prevent or mitigate her injuries. Because the absence of any railing at the end of the staircase may have contributed to plaintiff's injuries, the issue of p roximate causation should have been left to a jury. "Based on the facts before us, we see no reason to take the11 A- 3685

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question of proximate cause from a jury's capable h ands," Coleman, 247 N.J. at 356 , and reverse the judge's ruling to the contrary. On her spoliation claim, plaintiff asserts she is e ntitled to an adverse inference against defendants because a principal of MKG deleted video of the fall. As a preliminary matter, "[w]hether to charge the j ury or impose some other sanction for spoliation is a matter 'left to the trial court's discretion and will not be disturbed if it is just and reasonable in the circumstances.'" Lanzo v. Cyprus Amax Mins. Co., 467 N.J. Super. 476, 525- 26 (App. Div. 2021) (quoting Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 425 N.J. Super. 448, 472 (App. Div. 2012)). The spoliation inference plaintiff se eks "allows a jury 'to presume that the evidence the spoliator destroyed . . . wou ld have been unfavorable to him or her.'" Ibid. (quoting Rosenblit v. Zimmerma n, 166 N.J. 391, 402 (2001)). The purpose of spoliation sanctions, including an a dverse inference, is "' to make whole, as nearly as possible, the litigant who se cause of action has been impaired by the absence of crucial evidence; to pun ish the wrongdoer; and to deter others from such conduct.'" Id. at 526 (quot ing Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252, 273 (2010)). Other relevant factors are "'the spoliator's degree of fault, the prejudice ca used to the other party, and the availability of lesser sanctions that will both avo id unfairness to the non-12 A- 3685

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spoliator and deter future acts of spoliation.'" I bid. (quoting Robertet Flavors, Inc., 203 N.J. at 278). Here, in his deposition, Huet testified he "inadver tently" deleted the portion of the video showing plaintiff's fall while he was trying to save the video in an accessible format. Once he "noticed that there was an issue," he contacted the surveillance company, but the company only stor ed videos for ten days. Because more than ten days had elapsed since the fa ll, the video was no longer available. However, screenshots provided in the re cord show that the relevant portion of the stairs and handrail are not captured by the surveillance camera. Alt hough the judge's written opinion focused on plaint iff's failure to seek the deleted video in discovery, she emphasized at t he reconsideration argument that the video was irrelevant because it "show[ed] nothing." Based on the screenshots, it is clear that precisely where and h ow plaintiff fell would not have been visible on the video. Because the deleted vid eo would not have provided any useful evidence, the judge did not abuse her di scretion in denying plaintiff an adverse inference from defendants' spoliation of evidence. Therefore, although we reverse the judge's decisions granting summary judgment dismissal of plaintiff's complaint and denying plaintiff reco nsideration, we agree with the judge that plaintiff was not prejudiced by "'the ab sence of crucial evidence.'"13 A- 3685

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See Lanzo, 467 N.J. Super. at 526 (quoting Robertet Flavors, Inc., 203 N.J. at 273)

. Reversed and remanded for further proceedings. We do not retain jurisdiction.