Wade Clark Mulcahy LLP

Recently, in Clarke v. 90 South Park Owners, Inc., 2024 N.Y. Slip Op. 03162, the Appellate Division, Second Department decided on an appeal by plaintiff after the premises owner defendant was granted summary judgment. Plaintiff initiated the action after she was injured after a trip and fall allegedly caused by an uneven sidewalk abutting the defendant’s owned premises. The defendant initially prevailed on its summary judgment motion by arguing that the sidewalk defect plaintiff alleged caused her fall was trivial, and thus was unactionable.

On appeal, the Second Department affirmed the award of summary judgment, holding that the defendant sufficiently demonstrated with admissible evidence that the sidewalk defect alleged by plaintiff was trivial. However, in so doing, the court explained that this is a high burden for defendants to meet. Specifically, “[i]n 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,” (quoting Haber v. CVS Pharmacy, Inc., 217 A.D.3d 659, 660 (2d Dep’t. 2023)). In this case, two pieces of evidence proffered by defendant were critical in establishing the defect was trivial. First, photos of the sidewalk contained measurements of the alleged defect, and which showed that the height differential in question was insignificant and that the surrounding area lacked characteristics that would increase the risk posed by the alleged defect. Second, plaintiff’s deposition confirmed that the surrounding circumstances did not add to the alleged defect’s risk; she testified that she had walked on the same sidewalk many times previously, had never tripped on it before, and her view at the time of the accident was not obstructed nor did poor lighting contribute to her fall.

This case demonstrates the importance of identifying the applicability of a trivial defect defense early in the litigation process. Dismissal on a trivial defect defense is a very high standard in New York, but a thorough inspection, measurements and tailored deposition questioning can help to drive the defense home.