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DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the sidewalk defect which allegedly caused plaintiff's fall was trivial as a matter of law. The defendants submitted insufficient or conflicting evidence of the dimensions of the defect and the photographs were not dispositive:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” … .

In support of its motion, [one of the defendants] failed to submit any measurements of the dimensions of the alleged defective condition.  * * *

… [The other defendant] submitted conflicting evidence as to the dimensions of the alleged defective condition, including the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and measurements performed by its expert, and it is impossible to ascertain from the photographs submitted in support of the motion whether the alleged defective condition was trivial as a matter of law … . Padarat v New York City Tr. Auth., 2016 NY Slip Op 02064, 2nd Dept 3-23-16

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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