In Scelzo v. Acklinis Realty Holding, LLC, et al., Scelzo was injured when she tripped on a tree well outside of a Best Buy store.   She eventually sued the landlord, its tenant and the general contractor who constructed the store.  All three entities moved for and were granted summary judgment.  On appeal, the First Department partially modified the trial court’s decision and reversed summary judgment in favor of the landlord, Acklinis Realty.

Acklinis Realty had attempted to prevail by arguing that the subject defect was trivial.  Under New York law, whether a defect is trivial is generally a matter for the jury in a personal injury action.  Here, the lease between Acklinis Realty and Best Buy placed the duty to maintain the sidewalk areas solely on the landlord, so summary judgment was appropriate for Best Buy.  Also, the general contractor was entitled to summary judgment, as there was no evidence that it had ever returned to the job site after it constructed the store 3 years before the plaintiff’s accident.  However, the Acklinis Realty was not so lucky.  The court held that the plaintiff’s photograph of the tree well, coupled with her testimony, sufficiently established a question of fact as to whether the defect was trivial.

While a trivial defect is a viable defense at trial, it generally is not a successful defense for summary judgment purposes.

Thanks to Michael Nunley for his contribution to this post.