MELVIN SCHINDELHEIM v. YIFEI TIAN

NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5618-16T3

MELVIN SCHINDELHEIM,

              Plaintiff-Appellant,

v.

YIFEI TIAN,

          Defendant-Respondent.
________________________________

              Argued May 31, 2018 – Decided June 14, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              3980-15.

              John J. Del Casale argued the cause for
              appellant (M. Mark Mendel, Ltd, attorney; John
              J. Del Casale, on the brief).

              George B. Keahey argued the cause for
              respondent (Venema, Proko, Keahey & Dalvet,
              attorneys; George B. Keahey, on the brief).

PER CURIAM

        In this residential sidewalk slip-and-fall case, plaintiff

appeals from the August 7, 2017 Law Division order denying his

motion for reconsideration of the court's June 23, 2017 order
granting defendant's motion for summary judgment, and dismissing

plaintiff's complaint.      We affirm.

     There is no dispute as to the material facts.            While walking

to his son's house, plaintiff tripped over a broken sidewalk that

was adjacent to defendant's residential home, fell on the ground,

and injured his shoulder.         Defendant had purchased the property

about seventeen months earlier, and resided there with her two

children.      Defendant had never made any repairs to the sidewalk

adjacent to her property during the time her family lived there,

and she did not create the alleged defect that caused plaintiff's

fall.

     It is well established, and plaintiff does not dispute, that

"absent negligent construction or repair," a residential property

owner like defendant "does not owe a duty of care to a pedestrian

injured as a result of the condition of the sidewalk abutting the

landowner's property."          Mohamed v. Iglesia Evangelica Oasis De

Salvacion, 
424 N.J. Super. 489, 492 (App. Div. 2012) (citing

Stewart   v.    104   Wallace    Street,   
87 N.J.   146,   153   (1981)).

Accordingly, defendant filed a motion for summary judgment.              When

plaintiff did not respond, Judge Andrea G. Carter granted the

motion and dismissed plaintiff's complaint.

     Thereafter, plaintiff's attorney asserted that he had never

received defendant's summary judgment motion and, therefore, he

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filed a motion for reconsideration on behalf of plaintiff.             In an

accompanying certification, the attorney acknowledged that under

current   decisional   law,    "defendant   had    no   liability   for   the

injuries suffered by . . . plaintiff in this case."           However, the

attorney stated that had he been able to respond to the defendant's

motion, he "would have encouraged [the trial judge] to consider

whether the time has come for the [c]ourts of the State of New

Jersey to reconsider the[se] holding[s]."

     After   conducting    oral    argument,      Judge   Carter    reviewed

plaintiff's contention, denied his motion for reconsideration, and

kept her summary judgment ruling in place.              In a thorough oral

opinion, the judge found that defendant was a residential property

owner, who owed no duty to plaintiff for the condition of the

sidewalk adjacent to her property.          Defendant had never engaged

in any commercial activity and did nothing to cause the alleged

defect in the sidewalk. Therefore, the judge followed the existing

precedents   and   dismissed   plaintiff's     complaint.     This    appeal

followed.

     On appeal, plaintiff argues that the judge erred in denying

his motion for reconsideration.         He also asserts that New Jersey

should recognize for the first time that residential property

owners owe a duty of care to pedestrians who walk on sidewalks

abutting their homes.     Both contentions lack merit.

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     Although     the   judge     denied      plaintiff's   motion    for

reconsideration, she nevertheless permitted plaintiff to contest

defendant's motion for summary judgment, and rendered a thoughtful

and comprehensive oral decision explaining her decision not to

disturb her prior order dismissing plaintiff's complaint.            Thus,

even if plaintiff did not receive defendant's original motion, he

was not prejudiced in any way because he was able to fully respond

to it. We are satisfied that the judge did not abuse her discretion

by proceeding in this fashion.      Cummings v. Bahr, 
295 N.J. Super.
 374, 389 (App. Div. 1996) (stating that we review the denial of a

motion for reconsideration to determine whether the trial court

abused its discretionary authority).

     As noted above, long-existing precedents clearly establish

that a residential property owner like defendant does not owe a

duty of care to a pedestrian who slips and falls on a sidewalk

adjacent to their property where the owner has not caused the

defect in the walkway.    Because there was no dispute as to any of

the material facts, and defendant was entitled to judgment as a

matter of law, Judge Carter properly granted summary judgment to

defendant   and   dismissed     plaintiff's    complaint.    Conley     v.

Guerrero, 
228 N.J. 339, 346 (2017).

     As for plaintiff's request that we "overturn" the binding

rulings in Stewart and other Supreme Court cases, we note that it

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is not the intermediate appellate court's "function to alter [a]

rule" squarely decided by the Supreme Court.              In re Educ. Ass'n

of Passaic, 
117 N.J. Super. 255, 261 (App. Div. 1971).                    Because

we   are   bound   by   our    Supreme   Court's    precedents,      we   decline

plaintiff's invitation to overturn them.             See White v. Twp. of N.

Bergen,    
77 N.J.    538,   549-50    (1978)    (stating   that    trial    and

intermediate appellate courts are "bound, under the principle of

stare decisis, by formidable precedent" of the Supreme Court).

      Affirmed.




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