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SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the alleged sidewalk defect in this slip and fall case was trivial and not actionable as a matter of law:

Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed … . Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff’s testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff’s testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect … . McCullough v Riverbay Corp., 2017 NY Slip Op 04231, 1st Dept 5-30-17

NEGLIGENCE (SIDEWALKS, SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SLIP AND FALL (SIDEWALKS, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)

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THE PROOF WAS NOT SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL AND SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THAT ISSUE (FIRST DEPT). ​
THE SCAFFOLD ON WHICH PLAINTIFF WAS STANDING WAS INSECURE, WHICH IS A VIOLATION OF LABOR LAW 240(1); WHETHER THERE WAS SAFETY EQUIPMENT WHICH WAS NOT USED, EVEN IF PLAINTIFF WAS INSTRUCTED TO USE IT, IS IRRELEVANT (FIRST DEPT). ​
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DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN ALLOWED TO AMEND HIS ANSWER TO ASSERT A GRAVES AMENDMENT AFFIRMATIVE DEFENSE (AVAILABLE TO THE LESSOR OF A VEHICLE); PLAINTIFF WAS NOT PREJUDICED BY THE LATENESS OF THE MOTION (FIRST DEPT). ​
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