You are here: / / DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF...

DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF TRIPPED WAS TRIVIAL, THEREFORE THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant did not meet its prima facie burden to demonstrate the crack in a concrete floor was trivial in this slip and fall case. Therefore the burden never shifted to plaintiff to raise a question of fact. Defendant’s motion for summary judgment was properly denied:

Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury … . However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . 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” … .

“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” … . Contrary to the defendant’s contention, it failed to establish, prima facie, that the alleged defective condition was trivial as a matter of law and therefore not actionable … . Cortes v Taravella Family Trust, 2018 NY Slip Op 01301, Second Dept 2-28-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF TRIPPED WAS TRIVIAL, THEREFORE THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (TRIVIAL DEFECT,  DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF TRIPPED WAS TRIVIAL, THEREFORE THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF TRIPPED WAS TRIVIAL, THEREFORE THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

You might also like
School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury
DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.
The Arbitrator Had the Power to Determine Whether Respondent Insurer Was a Motor Vehicle Insurer Subject to Mandatory Arbitration Pursuant to the No-Fault Insurance Law—The Arbitrator’s Conclusion that the Respondent Insurer Was Not a Motor Vehicle Insurer Had a Rational Basis
No Demonstration Burst Water Pipe Could Have Been the Result of Negligent Inspection or Maintenance; Municipality Immune from Negligent Design
WHEN THE BALANCES OF FIRST MORTGAGES ARE INCREASED WITH SECOND MORTGAGE LOANS AND A CONSOLIDATION, EXTENSION, AND MODIFICATION AGREEMENT (CEMA) IS ENTERED CONSOLIDATING THE MORTGAGES INTO SINGLE LIENS, THE FIRST NOTES AND MORTGAGES STILL EXIST; WHEN A MORTGAGE IS ERRONEOUSLY DISCHARGED WITHOUT A SATISFACTION OF THE DEBT, THE MORTGAGE MAY BE REINSTATED IF THERE HAS BEEN NO DETRIMENTAL RELIANCE ON THE ERRONEOUS DISCHARGE (SECOND DEPT).
ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT).
​REMOVING SCAFFOLDS, LADDERS, ETC. FROM THE WORKSITE WAS “ANCILLARY” TO THE RENOVATION WORK AND THEREFORE PROTECTED BY LABOR LAW 240(1); THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S FALLING OFF THE TOP OF THE VAN WHERE HE WAS LOADING THE EQUIPMENT WAS COVERED BY LABOR LAW 240(1) (SECOND DEPT).
CO-OP DISCRIMINATED AGAINST THE DISABLED COMPLAINANT BY REFUSING TO ALLOW HER TO KEEP A DOG IN HER APARTMENT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY... PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S...