Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/09/Acevedo-v.-City-of-Yonkers.pdf">Acevedo v. City of Yonkers</a>, </em>the infant plaintiff was allegedly injured when he was playing basketball in the street in front of his home, located in Yonkers, and tripped and fell over a water valve cap that was recessed into the street. The family brought suit against the City of Yonkers. The defendants moved for summary judgment dismissing contending that they did not receive prior written notice of the condition alleged as required by section 24–11 of the Charter of the City of Yonkers, and that the defect alleged was trivial and therefore not actionable as a matter of law. The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, finding that the defendants established that they had not received prior written notice of the defect alleged. The plaintiffs appeal.</p>
<p style="text-align: justify;">The Appellate Division Second Department found that the defendants should have been granted summary judgement; however, due to the fact the defect was trivial and not on notice.</p>
<p style="text-align: justify;">The Court held “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.’ “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.”</p>
<p style="text-align: justify;">Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, the area of loss did not possess the characteristics of a trap or nuisance, and therefore, was not actionable. The Appellate Court did not discuss the notice portion of defendants’ brief.</p>
<p style="text-align: justify;">The granting of summary judgment on the defense of trivial defect is rare as Courts find that triviality is a question of fact for the juror; however, the dimensions of the area where the infant plaintiff fell, along with photographs and the testimony of the plaintiffs all combined for the Appellate Court to rule that the defect was indeed trivial.</p>
<p style="text-align: justify;">Thanks to Paul Vitale for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>