Wade Clark Mulcahy LLP

<p style="text-align: justify;">Some property owners may think that a defect on their property is so small that it could not possibly lead to a claim or lawsuit. Some claims adjusters may think that a claim with a small defect is <em>de minimus</em> and the case will be thrown out at the end of discovery. This week we highlight <a href="https://www.wcmlaw.com/wp-content/uploads/2020/11/a-case.pdf">a case</a> where a plaintiff sued the New York City Transit Authority when he tripped and fell on a the edge of a stairway near a subway entrance in Queens, New York. At the close of discovery, defendant Transit Authority move for summary judgment dismissal of the claims alleging the defect on the stairs was trivial or <em>de minimus,</em> and so plaintiff’s claim was not actionable. The trial court denied their summary judgment motion, so they appealed to the Second Department.</p>
<p style="text-align: justify;">"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" (<em>Hutchinson v Sheridan Hill House Corp.</em>, 26 NY3d 66, 79). 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" (<em>Kavanagh v Archdiocese of the City of N.Y</em>., 152 AD3d 654, 655]; There is no 'minimal dimension test' or per se rule that a defect must be . . . a certain minimum height or depth in order to be actionable" (<em>Trincere v County of Suffolk</em>, 90 NY2d at 977).</p>
<p style="text-align: justify;">The case law on <em>de minimus</em> defects is extremely subjective and considers the regularity and appearance of the defect. Here, the Second Department decided to affirm the denial for summary judgment because defendants failed to prove that the protruding edge of the stairway tread on which the plaintiff caught his foot was trivial as a matter of law. The legal conclusion behind this decision is not limited to the Second Department, and all claims adjusters and property owners must be aware that any defect, however trivial or small, may be actionable and lead to a claim that would see a jury at trial.</p>
Thanks to Raymond Gonzalez for his contribution to this post.  Please contact <a href="mailto:haquino@wcmlaw.com">Heather Aquino</a> with any questions.