Padarat v. N.Y.C. Transit Authority N.Y. Slip Op. 02064
May 6, 2016 Posted By Joseph A. French Insurance Coverage
In this case addressing trivial defect arguments, the Second Department reversed the lower court’s decision that had granted summary judgment to the defendants.
Plaintiff alleges she was injured when she tripped and fell on a defective sidewalk condition. She sued the owner of the premises and a lessee of the portion of the building that abutted the accident site.
The Supreme Court found the alleged defective condition to be trivial. 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” (Trincere v. County of Suffolk, 90 NY2d 976, 978 [internal quotation marks omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 77-79).
The lessee “failed to submit any measurements of the dimensions of the alleged defective condition. Contrary to VAJ’s contention, the photographs and descriptions of the alleged defective condition it submitted failed to establish, prima facie, that it was trivial as a matter of law and therefore not actionable”.
The building owner was found to have submitted conflicting evidence, and based on its submitted photos, it was “impossible ascertain” whether the defect was trivial.
Accordingly, the summary judgment decision was revised. Thus, because it was incumbent on the court to examine “all of the facts presented”, it is incumbent upon the practitioner to present all relevant facts. Anything less will lead to less than desirable results