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A Triable Issue of Facts Exists as to whether a ‘Trivial Defect’ is Actionable

March 21, 2016

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In <em>Hutchinson v. Sheridan Hill House Corp</em>., 26 NY3d 66 (2015), the Court of Appeals recently found “there is no minimal dimension test” or per se rule that a defect must be a certain minimum height or depth to be actionable. Instead, a court must look at all specific facts and circumstances in determining whether a defect is actionable.
In <em><a href="http://law.justia.com/cases/new-york/other-courts/2016/2016-ny-slip-op-26044.html">Aviles v. Putnam Park Props. LLC</a>, </em>plaintiff lost her footing while descending an exterior three-step stairway of her apartment building. Plaintiff alleged a crack in the concrete of the otpe step and the condition of the bannister caused her fall. The building owner filed a motion for summary judgment arguing the crack in the step was not actionable as a matter of law since it was only one-half of an inch deep. In denying the motion, the court relied on <em>Hutchinson, </em>and found a triable issue of fact as to whether the crack coupled with the alleged bannister defect caused were the proximate cause of plaintiff’s injuries.
In light of the recent Court of Appeals holding in <em>Hutchinson,</em> it has become increasingly difficult to move for summary judgment based on a trivial defect. Defendants should flesh out all potential arguments as to plaintiff’s proximate cause to present the strongest defense.
Thanks to Caroline Freilich for her contribution to this post.
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