In Rosen v. Fifth Lenox Terrace, Association, Judge Mendez (Supreme N.Y). addressed a trivial defect in a trip and fall case. Plaintiff testified that she tripped over “something” on a sidewalk but did not observe what, nor could she provide details regarding the defect (for example its height or width). Defendant moved for summary judgment and attached photos of the location together with an expert affidavit . Judge Mendez granted the motion, stating that defendant had made a prima facie showing that the defect was “trivial and unactionable”. The case is worth a read, as obtaining summary judgment on trivial defect grounds has always proven difficult.
Jason T. Katz, Esq.