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Davi v. Alhamidy

Appellate Division of the Supreme Court of New York, Second Department
Sep 26, 1994
207 A.D.2d 859 (N.Y. App. Div. 1994)

Opinion

September 26, 1994

Appeal from the Supreme Court, Queens County (Lerner, J.).


Ordered that the order is modified, on the law, by deleting the provision which denied the motion by Milton Fishel and Peter Stathatos for summary judgment and substituting therefor a provision granting summary judgment dismissing the complaint against these defendants and severing the action against the remaining defendants; as so modified, the order is affirmed, without costs or disbursements.


It is well settled that an owner of land abutting on a public sidewalk does not, solely by reason of being an abutting owner, owe to the public a duty to keep the sidewalk in a safe condition (Conlon v. Village of Pleasantville, 146 A.D.2d 736, 737).

A defendant will be liable, however, if he or she negligently constructed or repaired the sidewalk or actually created the defect that caused the accident or if the sidewalk was constructed in a special manner for the defendant's benefit (Kobert v. Consolidated Edison Co., 176 A.D.2d 785, 786).

In the case at bar, the deposition testimony of the defendant tenant Mohammed Alhamidy raised an issue of fact as to whether Alhamidy contributed to the accident in question by making defective repairs to the sidewalk where the accident occurred. There is, however, no evidence to establish that the defendants Fishel and Stathatos, who own the building appurtenant to the sidewalk, were in any way responsible for any construction, maintenance, or repairs at the site of the accident. The plaintiffs' assertions that Fishel and Stathatos may have been responsible are nothing more than conjecture or surmise, which are insufficient to defeat a motion for summary judgment (see, Peppermill Realty v. Vahab, 152 A.D.2d 554). Accordingly, Fishel and Stathatos are entitled to summary judgment dismissing the complaint against them.

The parties' remaining contentions are without merit. Thompson, J.P., Sullivan, Altman and Goldstein, JJ., concur.


Summaries of

Davi v. Alhamidy

Appellate Division of the Supreme Court of New York, Second Department
Sep 26, 1994
207 A.D.2d 859 (N.Y. App. Div. 1994)
Case details for

Davi v. Alhamidy

Case Details

Full title:GIOVANNI DAVI et al., Respondents, v. MOHAMMED ALHAMIDY et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 26, 1994

Citations

207 A.D.2d 859 (N.Y. App. Div. 1994)
616 N.Y.S.2d 648

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