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SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

The First Department determined that Supreme Court properly denied the defendants' motion for summary judgment in this sidewalk trip and fall case. There was a question of fact, raised by the plaintiff's expert, whether the defect was trivial as a matter of law:

… [P]laintiff submitted an affidavit from an expert engineer who … found that the sidewalk flags had a vertical height differential of over one half inch. … [P]laintiff's expert opined that this differential and the dimension of the opening at the expansion joint created a “trap-like hazardous condition and [was] a known cause of trip and fall accidents.” The expert further opined that the condition of the sidewalk had been in a noticeable state of disrepair for at least one year prior to plaintiff's fall, and therefore, defendants should have been aware of the unsafe condition.

The motion court properly rejected defendants' argument that the sidewalk defect was trivial as a matter of law and denied defendants' motion for summary judgment, finding issues of fact. The Court of Appeals has held “that there is no “minimal dimension test” or per se rule that a defect must be of a certain minimum height or depth in order to be actionable' . . . and therefore [] granting summary judgment to a defendant based exclusively on the dimensions[s] of the . . . defect is unacceptable'”… . Thus, a finding of triviality, as a matter of law, must “be based on all the specific facts and circumstances of the case, not size alone” … . For this reason, the Court of Appeals has noted that “whether a dangerous or defective condition exists on the property of another so as to create liability . . . is generally a question of fact for the jury” … .

Here, the crux of defendants' triviality argument is that the defect was physically insignificant. However, as already noted, case law prohibits us from basing a finding of triviality on size alone. Indeed, before the burden can shift to the plaintiff, defendants “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” … .  Suarez v Emerald 115 Mosholu LLC, 2018 NY Slip Op 06059, First Dept 9-13-18

NEGLIGENCE (SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/TRIVIAL DEFECT (SLIP AND FALL, SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))

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