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HEIGHT DIFFERENTIAL BETWEEN TWO ADJACENT SIDEWALK SLABS WAS A TRIVIAL DEFECT AS A MATTER OF LAW; SLIP AND FALL ACTION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged one-inch height-differential in adjacent sidewalk slabs was not actionable in this slip and fall case:

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 … . “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” … . 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” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, in support of its motion, the defendant submitted, inter alia, the transcripts of the plaintiff’s testimony from a hearing pursuant to General Municipal Law § 50-h and her deposition testimony as well as photographs of the alleged defective sidewalk, which established, prima facie, that the height differential between the two slabs of abutting concrete that constituted the sidewalk was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed … . Boesch v Comsewogue Sch. Dist., 2021 NY Slip Op 04007, Second Dept 6-23-21

 

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