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One Inch Height Differential Can Be One Step Closer To Summary Judgment (NY)

June 9, 2023

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When a plaintiff commences an action to recover damages for personal injuries involved in a trip and fall due to a height differential between a curb and a sidewalk, the condition must be actionable and not deemed trivial.

For example, in<em> <a href="">Haber v. CVS Pharmacy, Inc.</a></em>, 2023 NY Slip Op 03002 (2d Dep’t June 7, 2023), the plaintiff alleged she tripped over a curb and sidewalk when walking at CVS Pharmacy, causing her to sustain injuries. Subsequently, plaintiff commenced a lawsuit against the defendant seeking to recover damages.

Thereafter, after discovery concluded and depositions were held, the Defendant moved for summary judgment arguing the height differential or defect alleged between the sidewalk and the curb was physically insignificant and that the characteristics of the defect and surrounding circumstances did not increase the risk it posed. Further, Defendant relied on Plaintiff’s own testimony and photographs of the accident site, to establish the height was less than one inch, the incident occurred in the daytime hours under clear conditions and there were no crowds that obscured the plaintiff’s view of the sidewalk when she was walking on it.

In cases like these, a property owner may not be held liable for trivial defects, over which a pedestrian might merely stumble or stub his toe or trip over. In determining whether a defect is trivial, the court examines factors such as the “width, depth, elevation, irregularity and appearance of the defect alongside the time, place and circumstance of the injury.” <em>See, Trincere v. County of Suffolk,</em> 90 N.Y.2d at 978.

Here, the lower court held, and the second department recently affirmed, that the defendant’s motion for summary judgment dismissing the complaint should be granted because the defendant’s established the height differential was trivial and therefore not actionable. As such, the plaintiff’s claim was dismissed.

Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact <a href="">Matthew Care</a>.


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