Was The Defect Trivial?
In Santos-Brea v. 901 Honeywell, LLC the Supreme Court, Bronx County addressed whether the raised sidewalk at issue was considered trivial and in turn, not actionable. Plaintiff alleged to sustain injuries when the front wheel of her walker hit a raised sidewalk adjacent to the defendant’s property.
The defendants argued that the alleged defect was trivial in nature. In addition, their expert engineer opined that the height differential between slabs was .375 inches. However, plaintiff’s expert opined “….that the defendant’s construction of the sidewalk with expansion joints which require a 1 ¼ inch width of caulking material was a departure from good and acceptable engineering practices in that the same resulted in the caulking material being unstable, coming out of the expansion joint, thus causing and creating a 1 inch wide, 1 inch deep, sidewalk defect…”.
The court stated: “With regard to the duty to repair, §19-152(a) provides that a property owner is required to repair “a defective sidewalk flag in front of or abutting such property,” which “contains a substantial defect.” A substantial defect is defined to include a height differential between sidewalk flags of one-half inch or more.” The court then held that the plaintiff’s opposition raised a triable issue of fact as to whether the height differential was considered a substantial defect.
This decision serves as a reminder that an abutting landowner may not be granted summary judgment unless you can prove that the raised sidewalk is not a substantial defect.
Thanks to Corey Morgenstern for his contribution to this article. Should you have any questions, contact Andrew Gibbs.