Muniz v. Bacchus

• Decision Date: 26 April 2001
• Citation: 724 N.Y.S.2d 46,282 A.D.2d 387
• Parties: MARISOL MUNIZ et al., Respondents,<BR>v.<BR>HASLEEN BACCHUS et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

282 A.D.2d 387

724 N.Y.S.2d 46

MARISOL MUNIZ et al., Respondents,

v.HASLEEN BACCHUS et al., Appellants, et al., Defendant.

Decided April 26, 2001.

Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Wallach and Buckley, JJ.

On May 2, 1997, plaintiff Marisol Muniz tripped and fell, sustaining personal injuries as a result of an allegedly defective condition on the public sidewalk in front of premises known as 4683 Matilda Avenue in the Bronx owned by defendants Hasleen Bacchus and Rahamatt Kassim. She and her husband sued both the City of New York, as owner of the sidewalk, and Bacchus and Kassim, as owners of the premises; the City and the property owners interposed cross claims against each other. At the conclusion of discovery, defendants Bacchus and Kassim moved for summary judgment on the ground there was no evidence that they either created the alleged defective condition causing plaintiff's fall, i.e., a raised concrete flag in the sidewalk, or that they ever made a special use of the sidewalk where the accident occurred. According to the moving defendants' deposition testimony, they purchased the subject property in July 1995. At that time and at the time of the accident, there were no outstanding violations with respect to the sidewalk; nor had they, from the time of purchase until the accident, ever performed any repairs to the sidewalk nor authorized anyone else to do so. In Bacchus's supporting affidavit and testimony, she stated she and Kassim, her son, never made any special use of the sidewalk. She stated that the sidewalk was in the same cracked and uneven condition at the time of the accident and when the property was purchased in 1995. In opposition, plaintiffs tendered an affidavit from an engineer who inspected the property one month after the accident. He found that there had been repairs of "recent vintage" to the sidewalk. The IAS court denied the motion, finding that engineer's observation of recent repairs to be sufficient to create an issue of fact as to whether the abutting owners created the sidewalk defect. The court also cited defendant Kassim's failure to submit an affidavit stating that he did not make any repairs to the sidewalk. We reverse.

It is well settled that an owner does not owe a duty to the public to maintain the public sidewalks abutting his/her property in a safe condition and, solely by virtue of his/her ownership of the abutting property, cannot be held liable for injuries sustained by a pedestrian as a...