DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the raised brick over which plaintiff allegedly tripped was a trivial defect or an open and obvious defect:

The defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. “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 risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Horticulture of the defendant, the affidavit of an expert witness, and two photographs that the plaintiff claimed showed her lying on the walkway shortly after her accident but did not portray the raised brick on which she allegedly fell. Viewed in the light most favorable to the plaintiff as the nonmovant …, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect, and failed to establish that the condition was trivial and, therefore, not actionable … . The defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it … . Furthermore, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly raised brick … . Chojnacki v Old Westbury Gardens, Inc., 2017 NY Slip Op 05706, 2nd Dept 7-191-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)