THE CRACK OVER WHICH INFANT PLAINTIFF ALLEGEDLY TRIPPED WAS DEEMED TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the crack in the concrete schoolyard where infant plaintiff allegedly tripped and fell was trivial as a matter of law. Infant plaintiff was running a sprint in an after-school program when he fell. The court noted that plaintiffs raised a “feigned issue of fact” in opposition to the defendants’ motion for summary judgment which tried to avoid the consequences of deposition testimony:

… [T]he defendants established, prima facie, that the alleged defective condition was trivial as a matter of law and therefore nonactionable … . The defendants’ expert inspected the crack and determined that it was “from 1/8 of an inch to 7/16 of an inch in width,” and the pavement “on each side of the crack[ ] . . . contained no vertical height differential.” Further, the infant plaintiff’s General Municipal Law § 50-h hearing and deposition testimony established that the accident occurred during daylight hours on a clear day with nothing obstructing his view.

In opposition to the defendants’ prima facie showing that the defect was trivial, the plaintiffs failed to raise a triable issue of fact. The affidavit of the infant plaintiff stating that “[t]he crack was wide enough that part of [his] right foot was able [to] go into it” “‘presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony'” … that his right “heel” stepped “on” the crack, and his General Municipal Law § 50-h hearing testimony that his right “toes” “stopped really hard” on the crack and the crack “wasn’t wide.” Moreover, the affidavit of the plaintiffs’ expert was speculative, unsubstantiated, and conclusory, as the expert neither provided a description of the crack nor took any measurements of it … . K.A. v City of New York, 2020 NY Slip Op 06737, Second Dept 11-18-20