Muniz v. Bacchus

• Decision Date: 26 April 2001
• Citation: 282 AD2d 387,724 N.Y.S.2d 46
• Parties: (A.D. 1 Dept. 2001) Marisol Muniz, et al., Plaintiffs-Respondents, v. Hasleen Bacchus, et al., Defendants-Appellants, and The City of New York, Defendant. 3697 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 46

724 N.Y.S.2d 46 (A.D. 1 Dept. 2001)

Marisol Muniz, et al., Plaintiffs-Respondents, v. Hasleen Bacchus, et al., Defendants-Appellants and The City of New York, Defendant.

3697

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

April 26, 2001

Sol Mermelstein - for plaintiffs-respondents,

Linda Meisler - for defendants-appellants.

Sullivan, P.J., Rosenberger, Mazzarelli, Wallach, Buckley, JJ.

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered on or about March 20, 2000, denying the motion of defendants Bacchus and Kassim for summary judgment dismissing complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

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 Rahamatt, 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....