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Defendants demonstrate that alleged defect was trivial and not actionable by law; Court grants summary judgment

Sturm v. Myrtle Catalpa, LLC, et al., Index No. 1433/2013 (Sup.Ct. Queens Cty. 2014)

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The Honorable Sidney F. Strauss granted summary judgment dismissing the Complaint as to all defendants in a personal injury action concerning a trip and fall accident. Defendants met a difficult burden of demonstrating that the alleged sidewalk defect was trivial as a matter of law.

Plaintiff, who was eighty-five at the time of the accident, alleged that she tripped and fell on red pavers lying between a sidewalk planter and the entrance to the store on one of the defendant's premises. Plaintiff claimed that two pavers were loose, creating a dangerous or defective condition. The Court found that the alleged defect was trivial, and therefore not actionable.

Generally, whether a dangerous or defective condition exists is a question of fact for the jury, requiring a full trial. However, when the defect is trivial, as a matter of law, the Court may determine liability upon motion for summary judgment. 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 circumstances of the injury."

The defendants demonstrated that the defect was trivial as a matter of law using photographs, deposition testimony and an engineer's report, and persuasively argued that plaintiff's own engineer, who examined the area of the accident more than two and a half years after the accident, created only feigned issues of fact.

The defense of the contractor was handled by AGF&J partner Chris Christofides and associate Graig A. Russo.