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QUESTIONS OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE RAISED SIDEWALK FLAG AND WHETHER THE DEFECT WAS TRIVIAL IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about whether defendant had constructive notice of a raised sidewalk flag and whether the defect was trivial in this slip and fall case:

Although the property manager states that the premises were regularly inspected, and any condition observed would have been reported to him, reference to a generalized inspection practice “is insufficient to satisfy defendant[‘s] burden of establishing that [he] lacked notice of the alleged condition of the sidewalk prior to the accident” … .

As a general rule, whether a defect is trivial depends on “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The relevant inquiry is whether the defect was “difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Although defendant relies on photographs to prove his defense that the defect is trivial, summary judgment should not be granted where, as here, “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Trinidad v Catsimatidis, 2021 NY Slip Op 00047, First Dept 1-5-21

 

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