You are here: / / DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT...

DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion for a judgment as a matter of law should not have been granted. The five-inch-long, three-inch-wide and two-inch-deep defect in the step which caused plaintiff to fall was not trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects which, considering “all the specific facts and circumstances of the case, not size alone,” do not “unreasonably imperil[ ]” the safety of a pedestrian … . In other words, physically small defects are actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, 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” … . * * *

Here, [defendant] failed to show that there was no rational process by which the jury could have found in favor of the plaintiff and against it … . Accepting the plaintiff’s evidence as true, and giving him every favorable inference which can be reasonably drawn from that evidence, [defendant] failed to establish that the defect was trivial as a matter of law. … [Defendant] relied on the plaintiff’s photograph of the defect and the testimony of his witness … who testified that the photograph showed “minor wear” to the stair. The dimensions of the defect cannot be ascertained from that one indistinct photograph … . The location of the chip on the walking surface of a stair also figures into the analysis of whether the defect was trivial … . Accordingly, under the circumstances, a rational jury could have concluded that the defect was not trivial. Pitt v New York City Tr. Auth., 2017 NY Slip Op 00203, 2nd Dept 1-11-17

 

NEGLIGENCE (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)

You might also like
A SELLER OF REAL PROPERTY CAN REMAIN SILENT ABOUT DEFECTS IN THE PROPERTY BUT CANNOT TAKE STEPS TO THWART A BUYER’S DISCOVERY OF DEFECTS; HERE IT WAS ALLEGED THE SELLERS COVERED WATER DAMAGED WOOD WITH NEW PLYWOOD (SECOND DEPT).
ONLY A CLOSE RELATIVE COULD SUFFICIENTLY ALLEGE THAT THE APPELLANT WAS UNDER SIXTEEN TO SUPPORT THE AGE-ELEMENT OF THE CHARGED OFFENSE; HERE APPELLANT’S COUSIN’S ALLEGATION APPELLANT WAS FOURTEEN WAS INSUFFICIENT.
ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).
DEFENDANT MADE A LEFT TURN IN THE PATH OF PLAINTIFF’S VEHICLE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY AND DISMISSING THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
SANCTIONS FOR SPOLIATION OF VIDEOTAPE IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).
DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW OF THE NONPARTY TREATING PHYSICIAN’S ASSISTANT ABOUT PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER SLIP AND FALL WAS PROPERLY DENIED (SECOND DEPT).
IN THIS POLICE-CAR TRAFFIC ACCIDENT CASE, THE MUNICIPALITY DID NOT DEMONSTRATE THE POLICE OFFICER’S SPECIFIC CONDUCT WAS EXEMPT FROM THE ORDINARY RULES OF THE ROAD PURSUANT TO VEHICLE AND TRAFFIC LAW 1104, AND DID NOT DEMONSTRATE THE OFFICER WAS NOT LIABLE UNDER THE ORDINARY RULES OF NEGLIGENCE; THE MUNICIPALITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE BANK’S DISCONTINUANCE OF THE FORECLOSURE ACTION DID NOT REVOKE THE ACCELERATION OF THE DEBT; THE REQUEST, AFTER DISCONTINUANCE, FOR A DECLARATION THE ACCELERATION HAD BEEN REVOKED WAS A REQUEST FOR AN IMPERMISSIBLE ADVISORY OPINION (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP... ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM...