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

Before Judges Haas and Gooden Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L3980-15.

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 

NOT FOR PUBLICATION WITHOUT THE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.

June 14, 2018
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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.